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HomeMy WebLinkAboutAdministrative Record Part 21 2 3 4 5 6 7 8 9 10 11 12 13 14 15 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Brian Amoroso (January 7th) Transcribed: June 15, 2015 and who else is in the officer pool and who had tested in the past. So I wish I could nail down a better date for you, but I just can't. But it was probably within a month of when I talked to Lieutenant Bledsoe about it, and that occurred -- those interviews for all those speciality positions I think occurred in the beginning of October, kind of the September -October time frame, or maybe it was September, is when they occurred. So I would think that when Chad first brought it to my attention was probably sometime around August or September; late August, early September. It would be my guess. Q. Okay. Anything else to add about this? A. No. Q. Okay. Can you think of anything else I should 16 1 ask? 17 18 19 20 21 22 23 24 25 A. No. I -- I mean, frankly, I just -- I'm dumbfounded. I'm really dumbfounded by this question that he -- does he have this collection of parts, and I just think that's such a strange thing, you know, for someone to have. And you know, I guess we've all been on traffic scenes, and you see little pieces of debris, whether it's reflectors or plastic bumpers or whatever, and that's one thing, but you know, to actually remove Cal -Pacific Reporting, Inc. 415.578.2480 Page 26 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 496 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Brian Amoroso (January 7th) Transcribed: June 15, 2015 1 something from vehicles is another, you know, in my 2 opinion. 3 Q. Right. 4 A. Which is why when I initially heard this, the 5 only thing I could think of was, oh, it had to have been 6 a joke. 7 But then I question my own intuition because 8 then I wonder, but if it was me and then someone called 9 me on it, I would say, "Well, yeah, it was just screwing 10 with you, and go talk to him. He'll tell you we had 11 that conversation." So I don't know. 12 Q. So Chad never came to you and said, "Was this a 13 joke?" 14 A. Never. 15 Q. Which would have -- which would have made 16 everyone to believe that Kevin told Chad that "Brian and 17 I were playing a joke on him." 18 A. Right. No, Chad -- and to my understanding, 19 because I specifically asked Chad that when he told me, 20 and Chad said he never once mentioned anything about 21 that to him, about him and I joking about it. 22 But again, I don't know if that's because he 23 just didn't want to get me in trouble with Chad, 24 thinking that we were trying to, you know, make fun of 25 him or haze him or do something like that. I don't Page 27 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 497 In Re: Matter of Kevin Waddell Audio of: Sergeant Brian Amoroso (January 7th) IA 13-004 Transcribed: June 15, 2015 1 know. 2 LIEUTENANT PROLL: Okay. If you don't have 3 anything else to add, I'm going to shut the tape 4 recorder off. It's 12:38 p.m. 5 (End of recording) 6 -000- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 28 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 498 1 2 u 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Sergeant Brian Amoroso (January 7th) IA 13-004 Transcribed: June 15, 2015 CERTIFICATE OF TRANSCRIBER I hereby certify that the foregoing recorded proceedings in the within -entitled cause were transcribed by me, CHRISTINE BOLDT, CLT, a disinterested person, and were thereafter transcribed into typewriting. Dated: June 15, 2015 Cal -Pacific Reporting, Inc. 415.578.2480 C ldt , CLT Page 29 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 499 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 500 TO: Officer Kevin Waddell FROM: Lieutenant Bill Proll DATE: January 13, 2014 SUBJECT: Personnel Investigation A personnel investigation is being conducted into events which occurred on February 22, 2013 during a traffic collision investigation at Orcutt and Johnson. You are to report to Human Resources Department at City Hall on January 22, 2014 at 1:00 PM to answer questions relating to this investigation. Lieutenant Bill Proll will be in charge of the investigation. The following Officers will also be present during the interview: Sgt. Gillham All questions during the interview shall be asked by and through no more than two interviewers at one time. The complete interview will be recorded. You will have access to the tape if any further proceedings are contemplated or prior to any further interviewing at a subsequent time. You have the right to bring your own recording device and record any and all aspects of the administrative investigation. You will be entitled to all reports and complaints made by investigators or other persons, except those which are deemed by the Department to be confidential. No notes or reports which are deemed confidential by the Department will be entered into your personnel file. You have the right to be represented by a representative of your choice who may be present at all times during the interview. This representative shall not be a person subject to the same investigation. Your representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from you while under investigation in non -criminal matters. If prior to or during the interview it is deemed that you may be charged with a criminal offense, you shall be immediately informed of your constitutional rights. You are advised that your rights are fully outlined in the Public Safety Officers Procedural Bill of Rights Act, Government Code sections 3300-3311. You shall be compensated for your off-duty time in accordance with regular departmental procedures. If you have any questions prior to the investigation, please contact me. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 501 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 502 pF Y From: Gesell. Steve To: Proll. Bill Cc: Staley. Chris Subject: Waddell A113005P Date: Friday, March 28, 2014 2:20: 31 PM Attachments: Waddell AI13B()SP.dnr See my note under conclusion. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 503 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 504 A j l lemorandum Service, Pride, hrtegriw" February 28, 2014 To: Chief Gesell Via: Captain Staley From: Lieutenant Proll Subject: Administrative Inquiry Officer Waddell INTRODUCTION: P cit y of san tuts oBi po Police Department 1042 Walnut SLO, CA 93401 805) 781-7317 In December of 2013 Sergeant Pfarr reported to Captain Storton that Officer Waddell attempted to take a vehicle part from a vehicle while investigating a traffic accident in February of 2013. It was also mentioned that Officer Waddell might have a collection of car parts that he has taken from other accident scenes. I was assigned by CaptainStortontoinvestigate these allegations. INTERVIEWS The persons listed below were interviewed chronologically, independently of one another. 1. College Towing Driver Sean Brady 2. Officer Josh Walsh 3. Officer Colleen Kevany 4. Officer Robert Cudworth 5. Sergeant Brian Amoroso 6. Officer George Berrios 7. Sergeant Janice Goodwin 8. Sergeant Chad Pfarr 9. Officer Kevin Waddell 10_ Lieutenant John Bledsoe 11, Officer Greg Benson 12 Lieutenant Jeff Smith Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 505 City of San Luis Obispo Police Department Memorandum SYNOPSIS: On December 20, 2013 Captain Storton assigned me this Administrative Inquiryinvolving Officer Kevin Waddell. This case involves Officer Waddell removing a partfromavehiclethathadbeeninvolvedinatrafficCollisionthatheinvestigated. Officer Waddell had removed a hubcap with a Bentley emblem from the car. Sergeant PfarrinitiallybelievedthatWaddelldidthisasajoke. Pfarr instructed Waddell to put the hubcap back and the officer did so. At the time, Sergeant Pfarr was in his third week as a newly promoted probationary sergeant and chose to verbally counsel Officer Waddell for what Pfarr considered to be an inappropriate joke. Pfarr did not initially notify hissupervisor, Lieutenant Smith, because he believed what Waddell did was an ill- conceived practical joke_ Pfarr slid notify Lieutenant Smith months later when he began to consider that it might not have been a joke based on Waddell's observed work habits subsequent to the incident in question. Pfarr mentioned his concerns to Captain Storton in December of 2013 while discussing details regarding Al 13-004P. Based on thisdiscussionwith Captain Storton coupled with Sgt. Pfarr's concerns in hindsight, an Administrative Inquiry was initiated on December 20th, 2013_fcsll SUMMARY OF ALLEGATIONS: The following are the allegations against Officer Waddell - A. Conduct Detrimental to the Department If sustained, this allegation would constitute a violation of San Luis Obispo Rules andRegulationsStandardofConductsectionIV. I- which states in part, "Department employees shall not conduct themselves in a manner that reflects adversely on theDepartment, or which discredits the Department, or is detrimental or damaging to thereputationorprofessionalimageoftheDepartment. B. Breaking or Removing Vehicle Parts 10852 CVC: No person shall either individually or in association with one or more other persons, willfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner. Violations of City policies and Department Rules and Regulations are cause forDisciplinaryactionperMunicipalCodeSection2.36.320. Violations of theCaliforniaVehicleCodearegroundsforpossiblecriminalcharges. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 506 City of San Luis Obispo Police Department Memorandum EVIDENCE AS TO EACH ALLEGATION: Interview with College Tow Truck Driver Sean Kelly Brady: I met with Sean Brady at the Downtown Police Office on December 21, 2013 at 11:04 PM and explained that I needed to talk with him about an internal investigation that resulted from a vehicle accident call on February 22, 2013 at Johnson and Orcutt Road. I told Brady that he was the one who towed the vehicle and he told me he rememberedthecall. He mentioned that call was a long time ago and did not think he would remember much. I explained that I was looking into the actions of one of our officers. This interview was not tape recorded. Brady told me that he has worked at College Towing off and on for the past seven and a half years and he was dispatched to this collision to tow the only vehicle involved in the collision. Brady said there were numerous officers present when he arrived but he only recognized one who he identified as Colleen Kevany. Brady said that he has known Officer Kevany for years from accident related calls. He said there were a few officers in plain clothes and the others were in regular police uniforms. Brady noticed the vehicle, a Bentley, had rolled over and the officers present told him that they were done with the investigation and that he was able to proceed with towing it. Brady told an officer that he was going to have to drag the damaged vehicle out and roll it back over. Brady thenwenttomovethetowtrucksohecouldstarilto tow the vehicle. Brady stated that in between moving and " up -righting" the Bentley he was approached by a male officer who he believed was in uniform. Brady doesn't think he would be able to identify the officer. Brady said the officer asked him to borrow a screwdriver. Bradysaidthathedugthroughhistoolboxonthetruckandfoundascrewdriverandgaveitto the officer. Brady said that other officers have, in the past, asked to borrow tools for such things as removing license plates. Brady stated that he was focused on getting the Bentley towable and he really was notlookingatwhateveranyoneelseatthescenewasdoing. He said that while he was hooking up to the front of the Bentley he remembered an officer near the rear of the car, but he is not sure who it was or what he was doing. When I asked Brady to explain this in further details he stated he thought the officer was near the rear passenger area and maybe was looking at the roll -bar feature the car has. Brady does not remember if this was the officer who borrowed the screwdriver. Brady does not remember exactly when but the officer who borrowed the screwdriver handed it back to him and thanked him. I asked Brady why he thought the officer wouldborrowascrewdriverandhesaidthathedidnotknow. When I pressed him further he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 507 City of San Luis Obispo Police Department Memorandum said, "If I could use my imagination and I was back in high school I could think it was to remove parts." I asked Brady if he saw any officer remove any parts from the Bentleyandhetoldmehedidnot. He said that he knows from being a car buff that Bentleys do not have hood ornaments. I asked him what could possibly be removed from a Bentley and he told me that the hubcaps could be removed, Brady told me specifically that he did not see any officer remove any hubcaps from the Bentley. He did say that it would be totally wrong if an officer removed parts to take them for personal use. Brady said his company has strong guidelines regarding this issue and they are not to take anything from a vehicle because they belong to the owner or the insurance company. Brady saidheeven parked the Bentley inside the Co(lege Towing building that night instead of leaving it outside because he was worried someone might steal something from itcszt. Brady told me he has no idea what the status of the hubcaps or emblems were when he arrived on scene or when he took the car to College Towing on Monterey Street. Brady does not remember any hubcaps or emblems that were on the driver's floorboard or anywhere else in the car when he arrived at the tow yard. I asked Brady if he ever considered asking what the officer needed the screwdriver for and he said, "He is a law enforcement officer so I am not going to question him at all." I asked Brady not to discuss this incident or interview with anyone and he agreed. He also said he would be available if I had further questions. I instructed Brady to contact me if he remembers anything else about the incident. As of this report date Brady hasnotcontactedme. There was no CHP form #180 done on this call because the vehicle was towed pursuant to the accident. The interview lasted 30 minutes and ended at 11:34 PM, Sean Kelly Brady DOB: 04/18/77 3500 Bullock Lane #60 SLO, CA 93401 805)550-8042 Interview with Officer Josh Walsh: I interviewed Officer Walsh in my office on December 31, 2013 at 11:16 PM. The interview was digitally recorded. Officer Walsh told me he remembered the Bentleycrash. He was working that night but was not dispatched to the call. He went to the call because he had Communications Technician Lichty riding with him and he wanted to show her the scene_ He wanted to show a dispatcher what a major traffic collision scene looked like. Officer Walsh told me he was only at the scene for about 20 minutes and he does not remember any other personnel who were there. He said he did not have a role at the scene and when he left the vehicle's occupants were still being treated. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 508 City of San Luis Obispo Police Department Memorandum Officer Walsh said he did not see any officer do anything illegal or against Department policy while he was there and he does not remember if Officer Waddell was there or n ot. The interview lasted six minutes and ended at 11:22 PM. Interview with Officer Colleen Kevany: I interviewed Officer Kevany in my office on January 3, 2014 at 8:30 AM. The interview was digitally recorded. Officer Kevany told me she remembered the traffic collision involving the Bentley. She was called out from home because she is a member of the traffic unit callout team and it was believed to be a probable fatal collision. Officer Kevany remembers Officer Waddell being present because he was working that night. She said she was using the Total Station accident diagramming equipment with Waddell and one other officer but she does not remember who that was. She said it was either Officer Cudworth or Sergeant Goodwin. Kevany said that Officer Waddell was in charge of the Total Station equipment and he was controlling the head of the device. Officer Kevany said Officer Waddell was present when the tow truck showed up, but she does not remember if she heard Waddell ask the tow truck driver for a screwdriver. She also does not remember if Waddell actually received a screwdriver from the driver. When I asked Kevany if she saw Officer Waddell remove anything from the vehicle she said, "Yes we were going to take a little symbol off the front I think it was or something like that, a trophy for traffic supposed to be it wasn't anything for personal gain, we were just messing around." I asked Kevany what she meant by stating, "we?" She told me she was "just there" when Waddell said something like "this would be cool to put in Traffic". We knew at that point it wasn't going to be a fatal or any type of majorinvestigation. The car was totaled and it was just kind of a joke". Kevany said she doesn't remember if it was a hood emblem or a rim emblem. She also recalled the idea of taking the emblem was Officer Waddell's. Officer Kevany said the emblem was goingtogo into the Traffic office and she said, "Look, we got to investigate a Bentleyaccident". Officer Kevany stated she has never seen Officer Waddell take off anything from anyothercars. She said, "We never get to see a Bentley in a crash or a vehicle of this caliber. Kevany said Waddell was going to do it but he was corrected by a supervisor. I asked Officer Kevany if she remembers a supervisor coming up and saying, "You have got to be kidding me. You are not going to put me in this position". Officer Kevany said that Sergeant Pfarr would have said that. Officer Waddell had already removed the vehicle part when this statement was made. Officer Kevany said the taking of the emblem was "definitely not" a joke on Sergeant Pfarr because he was a brand new supervisor in her opinion_ Kevany told me when I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 509 City of San Luis Obispo Police Department Memorandum asked that question was the first time she had heard that theory. She also said, "I would hope somebody would not put a supervisor in that position." Kevany said the taking ofthepartwastohaveitfora, "traffic trophy." Officer Kevany never saw Officer Waddell place anything into a brown paper bag. She does not remember any phone call occurring between Waddell and Sergeant Pfarr. She did say that she remembers the emblem just getting tossed back into the car and she believes it was just loose in the car. Officer Kevany has never seen Officer Waddell take anything from any vehicles in the past unless they were taken for evidence. I asked Officer Kevany if she was aware if Officer Waddell has a vehicle parts collection at home and she said, "No". I asked Kevany if Pfarr had not been at that scene or had not known about this what does she think would have happened and she said, "I think he would have taken the part and put it like on a board in traffic." Kevany said that is something that we should not be doing and she felt Waddell would know that too. The interview lasted 24 minutes and ended at 8:54 AM Interview with Officer Robert Cudworth: I interviewed Officer Cudworth in my office on January 7, 2014 at 11:21 AM. The interview was digitally recorded_ Officer Cudworth remembers getting called out from home regarding the Bentley collision. He remembers Officers Kevany and Waddell; and Sergeants Pfarr and Goodwin being present and he thinks there might have been a few others. Officer Cudworth assisted with the collision investigation by taking measurements and scene documentation. He said he left at the conclusion of the scene investigation and doesn't remember if the Bentley was still there or not. Officer Cudworth said that Officer Waddell was manning the control unit of the Total Station equipment. I asked Cudworth if he heard Officer Waddell ask the tow truck driver for a screwdriver and he told me that he did. Cudworth said, "Yes, my understanding was that he was going to attempt to or try and take off the Bentley emblem". Cudworth believed that this was Officer Waddell's "idea". Officer Cudworth does not remember ever seeing Waddell with a screwdriver nor did Cudworth see Waddell remove any item from the Bentley. Officer Cudworth never heard Officer Waddell say anything about having a collection of car parts. Cudworth remembers Waddell having a conversation with Sergeant Pfarr. Officer Cudworth believes Pfarr was asking Officer Waddell "what the heck" he was thinking about taking the emblem. Cudworth also thinks Pfarr told Waddell to, "knock it off." Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 510 City of San Luis Obispo Police Department Memorandum Officer Cudworth told me if he had seen Officer Waddell take something from the car he would not have thought it was a practical joke. Cudworth said that this was the first time he heard the practical joke theory that might have involved Sereant Pfarr. He told me that if Waddell took something it would have been for personal interests. Officer Cudworth never saw Officer Waddell place anything into a brown paper bag, nor did he see Waddell place a brown paper bag in the Bentley. Cudworth is riot aware of a phone call between Waddell and Sergeant Pfarr after Pfarr left the scene. Officer Cudworth has never seen Officer Waddell take any items for personal interest from any accident scene, nor has he heard of any collection of car parts that Waddell may or may not have. The interview lasted 29 minutes and ended at 11:50 AM. The digital recorder malfunctioned at the recording time of 11 minutes and 21 seconds. The remainder of the interview was not recorded. Interview with Sergeant Brian Amoroso: I interviewed Sergeant Amoroso in my office on January 7, 2014 at 1201 PM. The interview was digitally recorded. Amoroso told me he was working downtown when the traffic collision call involving the Bentley was dispatched. He said it sounded really bad, so he and Officer Waddell responded to the scene to see if they could help. Sergeant Amoroso went to see if Sergeant Pfarr needed any help regarding procedures or notifications. Waddell responded because he is a member of the traffic collision call -out team. Officer Hyman was the only officer that Sergeant Amoroso remembers seeingwhenhearrived_ When Amoroso arrived, the Fire Department was extricating the occupants from the Bentley. Amoroso felt this was the type of traffic collision scene to which the call -out team should be summoned because it. possibly involved a fatality. Amoroso stayed on the scene fcr a little while and then left. He said that Officer Waddell remained there as part of the call -out team. When Sergeant Amoroso left, the Bentley was still there and no other call -out officers had arrived yet. Amoroso left prior to the investigation being initiated by the call -out team. Sergeant Amoroso did not hear Officer Waddell ask the tow truck driver for a screwdriver, nor did he see Waddell obtain a screwdriver from the driver. Amoroso did not see Waddell remove anything from the Bentley, nor did he see Officer Waddell with a brown paper bag. Sergeant Amoroso did not hear Waddell say anything about having a collection of car parts nor did he see Waddell and Sergeant Pfarr having a conversation. Sergeant Amoroso has never seen Officer Waddell take any item from a vehicle in the past. Amoroso does not think Waddell has done anything inappropriately with the DRMO military surplus equipment. Amoroso said that, as Officer Waddell's direct supervisor, he has been exemplary with categorizing and tracking the surplus military items. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 511 City of San Luis Obispo Police Department Memorandum Sergeant Amoroso first knew of the issue with the Bentley emblem when Sergeant Pfarr brought it up to him when Sergeant Villanti was in the promotional process. He said they were talking about who they thought would make a good sergeant. Pfarr told Amoroso about the incident when Waddell took hubcaps off a Bentley at an accident scene. Sergeant Pfarr told Amoroso ;.hat Waddell borrowed a screwdriver from a tow truck driver and removed a Bentley emblem from a crashed vehicle. Pfarr told Amoroso that he told Waddell to put the item back while Waddell was still at the accident scene. Sergeant Pfarr told Sergeant Amoroso that he verbally counseled Waddell in the field. Pfarr then called Waddell into the station because he was still feeling uneasy about what had occurred. Pfarr verbally counseled Waddell and left it at tha4cs31. Amoroso stated that Pfarr later told his lieutenant, but nothing ever happened with it. Sergeant Amoroso told me that he remembered having a conversation with Officer Waddell at the Bentley collision scene while they were looking at Pfarr. The conversation was about how funny it would be to play a practical joke on Pfarr because he was a new sergeant. Amoroso was the instigator, but nothing specific was discussed about who would do it or what was to be done. Amoroso stated that the taking of a car part was definitely not discussed. I asked Sergeant Amoroso if O=ficer Waddell took items off of this car was it a result of Waddell playing a practical joke on Pfarrtc;s4l. Amoroso said that based on the conversation that he and Waddell had it was the type of activity would be exactly what they would have been referring to as a funny joke that would make a new sergeant flip out.'css1Amoroso thought that Waddell taking the emblem was a joke. Amoroso said he could not say 100 percent for sure judging by my question about whether Waddell has a collection of car parts from other traffic accidents. Amoroso said that if that were true he would doubt that it would have anything to do with a practical joke. Amoroso said that if Officer Waddell took an item, there would only be two explanations for it. It was either a joke, or Waddell wanted the emblem. PfarrtGs61 told Amoroso that Waddell never mentioned to him that is was possibly a practical jokeiGS71. Waddell was just very apologetic toward Pfarr. Pfarr never asked Amoroso if what Waddell did was a practical joke. Sergeant Amoroso told me that about a week and a half prior to this interview that Waddell came over to Amoroso's house, and they were talking in his driveway. At thattime, Waddell was apparently :unaware of this personnel investigation. Waddell was wondering why he had not heard anything yet, referring to---an -unrelated investigatioF'cssi. Amoroso told Waddell that I was working on an Administrative Inquiry. Waddell looked at Amoroso strangely and Amoroso instantly realized that he probably said something that he shouldn't have. Waddell asked Amoroso what he was talking about and Amoroso told him that I was working on something to do with a tow truck driver. Waddell asked Amoroso what it was about and he told him that he didn't remember much from that accident other than we had talked about" messing with" Pfarr. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 512 City of San Luis Obispo Police Department Memorandum Amoroso realized his mistake by telling Waddell about this Administrative Inquiry because Waddell did not know anything about it. Officer Waddell hasneverclaimed--t-never told Sergeant Amoroso that the emblem issue was a practical joke. Amoroso said that he and Waddell have never talked about the taking of an item one way or another. The only comment that Amoroso remembers Waddell making was that Waddell already event all through this with Pfarr. The interview lasted 37 minutes and ended at 12:38 PM Interview with Officer Georqe Berrios: I interviewed Officer Berrios in my office on January 7, 2014 at 3:08 PM. The interview was digitally recorded. Berrios told me he was not working during the Bentley collision and did not respond to this call. He told me he heard about the accident because other officers were talking in briefing about how the head rests popped and the vehicle's roll bar probably saved the occupant's lives. He told me that he did not know anything about any Bentley emblem or other part until I asked him about it on this date. Officer Berrios was shocked to hear that this personnel investigation was related to Officer Waddell possibly taking a vehicle part from the Bentley for personal gain. Berrios told me he has never seen, nor has he ever heard of Waddell removing or taking any item from a vehicle collision investigation since he has worked with him. Berrios has no knowledge of any vehicle parts collection that Waddell may or may not have. Officer Berrios also told me he has never seen Officer Waddell take anything from the DRMO program for personal gain. Berdos told me that he and Waddell pride themselves on keeping the DRMO stuff accountable because they did not want to lose the program. Officer Berrios told me that he also had not heard anything about a practical joke involving any Bentley part. The interview lasted six minutes and ended at 3:14 PM Interview with Sergeant Janice Goodwin: I interviewed Sergeant Goodwi-q in my office on January 13, 2014 at 5:19 AM. The interview was digitally recorded. Goodwin told me she was called at home regarding the Bentley collision. She learned that Officer Waddell was already at work and Officers Kevany and Cudworth were enroute from home as part of the call -out team. Sergeant Goodwin went to the scene, and she and Officers Waddell, Cudworth, and Kevanyinvestigatedthecollision. Goodwin believes a patrol officer was also on -scene to help Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 513 City of San Luis Obispo Police Department Memorandum with traffic control, and thinks thought it might have been Officer Hyman. She stated that Sergeant Pfarr came to the scene once or twice and he brought them coffee. Goodwin said she was there to supervise and also to learn how to investigate a major accident. Sergeant Goodwin told me the investigation did not take as long as they thought it would and she left about 30 minutes prior to the rest of the call -out team leaving. She does not remember if the Bentley Was still present when she left. Officer Waddell's role at the scene was to input the data into the Total Station.--&ysten4 because he -ie the-on,-with-the`,,nestknowledge--of-t-he systern. Sergeant Goodwin never heard or saw Waddell ask the tow truck driver for a screwdriver. She also never saw him get a screwdriver from the driver. She also never saw Waddell remove anything from the Bentley, nor did she see him with a brown paper bag. I asked Goodwin if she saw Sergeant Pfarr and Officer Waddell conversing at the scene and she said that she might have seen them talking, but she did not know what it was about. She also did not know about a phone call between Pfarr and Waddell after Pfarr left the scene. Sergeant Goodwin has never seen Officer Waddell remove anything from a vehicle other than for evidence and she has no knowledge whether he has a collection of car parts or not. In conclusion Sergeant Goodwin told me she has no memory of Officer Waddell involved with an emblem and she said she did not even remember a tow truck driver being there. She said if he did take an item it was a stupid thing to dotcs9l. The interview lasted 14 minutes and ended at 5:33 AM. Interview with Sergeant Chad Pfarr: I interviewed Sergeant Pfarr in my office on January 25, 2014 at 6:46 PM. The interview was digitally recorded. Pfarr told me he responded to the accident involving the Bentleyandhebelieveshewasthesecondofficerthere. He initially thought the male occupant was dead --deceased and the female was conscious. Sergeant Pfarr contacted Lieutenant Smith to let him know that he would be calling out of the traffic team. Pfarr had the traffic investigation team called out and he remembers Officers Kevany, Chitty, Treanor; and Sergeant Goodwin being at the scene. Sergeant Pfarr told me he was the field supervisor that night and his role was to be the scene supervisor. Pfarr turned the scene over to the call -out team when they showed up. He remembers Officer Waddell and Sergeant Amoroso showing up in the FST truck with the call -out equipment. Officer Hyman was also there. Pfarr left the scene prior to Sergeant Goodwin arriving. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 514 City of San Luis Obispo Police Department Memorandum Sergeant Pfarr remembers that Officer Waddell was setting up the Total Station laser and the Bentley was still there. Pfarr watched as the tow truck driver rolled the Bentley over upright. Sergeant Pfarr initially observed Officer Waddell 'messing'csio, with the emblem but he could not get it off. He believes it could have been the rear trunk deck emblem. Pfarr then heard Waddell ask the tow truck driver for a screwdriver Pfarr saw Waddell and the tow truck driver walk over to the tow truck. Sergeant Pfarr believes that Officer Kevany could have heard Officer Waddell ask the tow truck driver for a screwdriver. Pfarr then saw Waddell with some sort of tool in his hand and believed it was a screwdriver but that it could have been some sort of pry tool. Sergeant Pfarr heard Officer Waddell make a comment to someone that might have been the tow truck driver. The comment was something like, "Add the emblem to his collection." Pfarr initially thought the removal of this emblem was a part of the accident investigation. When he heard the "collection" comment he thought Waddell was playing a silly joke on him because he was newly promoted and that it was not part of the investigation. Sergeant Pfarr said something like, "Ha ha, funny, jokes over, I am leaving now, I don't want to see you actually do this." Pfarr assumed that Waddell would not finish taking the part. Sergeant Pfarr then got into his vehicle and started to drive away. In his mirror, Pfarr saw Officer Waddell working on the trunk emblem, but did not see him physically pry it off. He then saw Waddell crouc.-i down by one of the wheels of the Bentley and pop off the hubcap. Sergeant Pfarr thought that Officer Waddell put the wheel cover with the Bentley emblem into a grown caper bag and walked away to where the units were parked. Pfarr did not see if Waddell returned the screwdriver to the tow truck driver or not. As Sergeant Pfarr was driving away he called Officer Waddell at 5:08 AM on the cell phone. He stated that before he dialed Waddell's number, Pfarr received a text from Officer Waddell's personal cell phone. Waddell texted Sergeant Pfarr a photo of two items loose on the Bentley floor. There was no text in the message and it only contained the photo. Waddell then answered Pfarr's call and told him that he just sent him a text message. Sergeant Pfarr said something like, "I can't believe you just put me in that situation." Officer Waddell responded by saying that he was just being funny and put it back. Pfarr stated that he is 99°r; sure that Waddell said- thatto I d hire he was joking. He said--thatindicated Waddell never said that he was planning on stealing the car part. Pfarr stated he would have handled the situation differently if Officer Waddell had said something like that_ Sergeant Pfarr told Waddell when he was finished at the scene to come and see him in the sergeant's office. I asked Sergeant Pfarr what he thought made Officer Waddell change his mind after Pfarr saw Waddell walking to the FST truck with a brown paper bag containing the vehicle parts he had just removed. Pfarr said that there were a couple of possibilities. One being that it was a-totalactually a joke and Waddell saw Pfarr leaving and was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 515 City of San Luis. Obispo Police Department Memorandum going to put the parts back,, malt was alsopossible another officer at the scene toldhimitwasadumbideajc;,i to take the parts, Sergeant Pfarr thought another possibility was that it dawned on Officer Waddell that taking these parts was ;not the best idea cs121and maybe he should put them back_ Sergeant Pfarr told me he did not tell Officer Waddell to put the items back while he was at the scene because he was leaving when he saw the parts being taken Pfarr does not believe the items that Waddell removed from the Bentley ever made it to Waddell's patrol vehicle. When Officer Waddell arrived at Sergeant Pfarr's office, Pfarr was angry and Waddell was very apologetic, stating that he used bad judgment--He--said--that-he- and was just trying to be funnyJGS131. Pfarr said that Waddell was showing a great deal of remorse and portraying it as a joke that went too far. Sergeant Pfarr asked Waddell what would happen if the tow truck driver was to get in trouble and feel that he had "some dirt" on Officer Waddell. Waddell told Pfarr that he "brushed it ovefic;s141" with the tow truck driver and let him know that it was a new sergeant and that it was just a joke. Pfarr and Waddell had about a 15 -minute conversation and Pfarr did not think that this would ever be an issue again. Sergeant Pfarr had a conversation with Officer Kevany after Officer Waddell left his office. Pfarr told Kevany that he did not know if she saw what went on at the scene but he wanted to make sure they were on the same page that it was not ok to take parts from a traffic scene. Officer Kevany was in absolute agreement with Sergeant Pfarr. Kevany never said anything about what Waddell did at the scene. Pfarr told Officer Kevany that he did not want her to leave thinking that Officer Waddell was going to get away with this kind of stuff referring to taking parts. csis] Sergeant Pfarr does not know of a collection of parts that Officer Waddell may have, norhasheeverseenOfficer Waddell take anything in the past. Pfarr has never seen him take any DRMO equipment in the past. Sever-al--months-after tfiis collision -Sergeant Rfarf-started- thinking that- he -might -Ret -have used the -boast -judgment by- not- telling -a li 44enant-about this-inmden#- HeIGS161 said this was about the time when Waddell was applying for an Investigator position. Pfarr said that he told Lieutenant's Bledsoe and Smith about this separately but within a few minutes of each other. Pfarr told them the reason he did not bring this up earlier wasbecausehethoughtwhat Waddell did was a joke- He thought the information was relevant whether it was a joke or not and wanted them aware of what happened with the Bentley parts. Pfarr stated that Waddell was either going to steal the parts or it was a bad joke. Pfarr felt that Waddell's judgment would not make him a good candidate forthisposition. Pfarr admitted that he might have been naive about these types of things and he started to doubt Waddell's intention with the parts. Pfarr also admitted that had Waddell not pLWinapplied for Investigations he probably would not have said anythingaboutthisincidentunlesssomethingelsehadcomeuplateron- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 516 City of San Luis Obispo Police Department Memorandum Sergeant Pfarr told me that Waddell never told him that he was playing a practical jokeonhim. Pfarr reiterated that Waddell has said thinry made statements Jibe -such as "I was just joking" and "I was just messing around." The interview lasted 56 minutes and ended at 7:42 PM_ Interview with Officer Kevin Waddell: I interviewed Officer Waddell on January 27th, 2013 at 2:10 PM in the City Council meeting room across from the City Attorney's office at 990 Palm. The interview was digitally recorded. Officer Waddell was represented by his Attorney Alison BerryWilkinson. Assisting me during the interview was Sergeant Fred Mickel. I read to Officer Waddell the interview admonition along with his Constitutional Rights. Waddell invoked his rights and chose not to speak with me. At this time I ordered him to answer my questions related to this inquiry per Lybarger vs. City of Los Angeles. Officer Waddell said he understood his rights in this matter and signed the Interview Record form. Officer Waddell told me remembers responding to the collision involving the Bentley. He believes Officers Benson, Rodriguez, Hyman, Kevany, Cudworth; and Sergeant Pfarr were there. Allison Berry Wilkinson wanted it noted that this incident -happened almost a year ago and Waddell is prejudiced by the passage of time and I will just be getting hisbestpresent recollection. He also thinks Sergeant Amoroso came to the scene and might have taken Waddell back to the station to get equipment. Officer Waddell does not remember if Sergeant Goodwin made it to the scene or not. Waddell's role at the scene as a member of the Accident Reconstruction Team was to take over the collision investigation. Officers Cudworth and Kevany were also there as team members and Waddell worked directly with them at the scene_ Officer Waddell told me he did ask the tow truck driver for a screwdriver after the Bentley was rolled over onto its wheels and the officers were going to release the vehicle to be towed. He told me he asked for a screwdriver because he was going to use it to take a wheel cover off the vehiclejcst71. Waddell told me it was his idea to take the wheel cover off and it was also his idea to ask for a screwdriver. He does not remember if the tow truck driver asked him why he wanted a screwdriver_ Waddell did get a screwdriver from the driver. I asked Officer Waddell if he thought the tow truck driver knew what he 1csi8lwas doing when he was taking off the wheel cover_ Waddell told me he was trying to be very vocal about what he was doing and that he was trying to be dramatic and obvious. with -what he-ova-&-doing—Waddell stated that-he-definiteJy- remembered taking off a hubcap. He said, "I remember at one point making reference to a emblem on the car, I don't recall, just I don't remember talking about the emblem itself and getting one off the car but I never took an emblem other than the hubcap." He was not sure but he thinks the hubcap came from a wheel on the rear passenger side of the car. Waddell told me he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 517 City of San Luis Obispo Police Department Memorandum doesn't remember ever trying to take an emblem off on the front of the hood but he remembers referencing it. I asked him what he meant by referencing and he said, "as I said a second ago I remember when I got the screwdriver, talking about the emblem and what it looks like its cool emblem and you could use a, I could use a screwdriver, I bet you could get this off, I bet you that thing comes off, just get behind it and it comes off, and then the hubcap was an easier thing to take off." Waddell did not think that the emblem would even come off with any kind of reasonableness. I then briefly summarized what Waddell had told me so far regarding removing the hubcap and he again said that he made it obvious that he was doing it and that he 'was talking loud about ih(,sigl. After Officer Waddell took off the hubcap he put it on top of another hubcap that had come off during the collision. The hubcap that came off during the collision was located on a dirt berm and he does not remember the hubcap's condition. He stated the one he pried off was in fine condition. Waddell said that he did not place anything related to these items in a large brown evidence bag. Waddell did not recall if he put any items related to the investigation into a brown paper bag. He said that neither wheel cover was ever placed into a bag while he was at the scene. He said, "my intention was never to take these items away from the scene.'icszol He also said he never walked these items to a car. Waddell stated that he was sure the tow truck driver saw him removing the wheel cover because he was being very obvious with what he was doing and he was not intending on hiding his actskcs211. He also believes Officer Benson and Sergeant Pfarr saw him remove the wheel cap. Officer Waddell said the reason he took off the hubcap was that he was playing a prank on Sergeant Pfarr and was trying to do something to get him to respond and react to me, and to get him to tell Waddell to stop doing it. Waddell said he never had any intention on taking the items for anything and that he had no need for them. He also said his sole reason for that was that he was messing with Pfarr. Waddell admits it was a poor decision due to the timirg and the people around. Waddell instigated the prank because of a conversation that he and Sergeant Amoroso had about playing a prank on Pfarr. He said their conversation did not contain any specifics on what the prank would be and he believed the conversation took place that same shift but it could have been the day before. He said the prank was designed to be light hearted and that it had something to do with the close working relationship between the two sergeants. It was because Pfarr was a newer sergeant and the prank was to joke with him and Waddell thought it would be funny. Officer Waddell again stated that was being loud when he was taking the hubcap off and that he was not trying to be secretive. He was referencing the emblem a lot and how cool it was and he was making random comments about the car. He said that he has never retained anything from any prior accident scenes. He does not recall ever saying anything about having a collection of car parts and if he did it would have been in reference to the prank. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 518 City of San Luis Obispo Police Department Memorandum Officer Waddell told me that Officer Benson was close by when he took off the hubcap and that he had a conversation with him after the fact. He also said that he is positive that Pfarr knew he removed the hubcap. Waddell said that the hubcap was the only item he took off the car. I then asked him if he had tried to remove any other items from the car and he said he had looked at an emblem on the front or the back of the car. He said he did place a screwdriver against the emblem but he realized taking the emblem would cause damage to the car so he went away. He said he did not want to damage the car. Officer Waddell told me he does not remember making a statement about having a collection of parts. He also said he doesn't remember having any other conversations at the scene except for Sergeant Pfarr saying to Waddell, "I can't be here for this" and, "I'm not going to be a part of this." At this time Pfarr walked away and got in his car and left. Officer Waddell thought Pfarr was referring to him taking the car part off the car. Officer Waddell told me as Pfarr was walking away he told Pfarr that he was just messing around but he received no acknowledgement from Pfarr. Waddell doesn't know if Pfarr heard him or not. Waddell stated that Sergeant Pfarr did not tell him to put the part back while he was at the scene. Officer Waddell thought his prank was not well-received byPfarrbasedonPfarr's comments, Pfarr walking away and Pfarr not acknowledging Waddell's comment about messing with him. Officer Waddell said that after the exchange with Sergeant Pfarr he gave the screwdriver back to the tow truck driver and he put the hubcap on the driver's seat of the Bentley. He said he made a point with the tow truck driver what he was doing.' cszz]Waddell said that he told -he tow truck driver that he didn't have a need for the hubcap from a Bentley and that he was just messing around. He said the tow truck driver then awkwardly chuckled. Officer Waddell said that after Sergeant Pfarr left the scene he called Waddell on his personal cell phone. Pfarr told Waddell that he put him in a bad spot and that he needed to put the parts back. Waddell said he told Pfarr that he had already put the car parts back. Waddell said he told Sergeant Pfarr that he was just messing around with him. Waddell said Pfarr could have asked him to come and see him at the station but he was not sure. Officer Waddell stated that when he retumed to the station he met with Sergeant Pfarr in the sergeant's office_ He said that Pfarr told him that it was a bad Jde4l cs231 and he put him in a bad spot and that junior officers were present. Pfarr asked him what they were going to think. Sergeant Pfarr told Officer Waddell that he spoke to everyone who was there to reassure everyone that he handled this incident with Waddell. Waddell saw Officer Benson in the parking lot and assured him that he did not want to put anyone in a bad spot and that he had no intention of taking anything. Waddell expressed to Benson that he made a bad decsion. I asked Waddell if when he was on the phone or at the station with Pfarr slid he tell Pfarr why he took the car partsres2:1. Waddell said other than -saying. -that re lied he was just messing around and joking Ic,szsihe did not get into specifics because he thought Pfarr Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 519 City of San Luis Obispo Police Department Memorandum was upset with him and the situation. Waddell did not bring up the previously mentioned reasons for the prank to Jcs26]Pfarr. Waddell stated that at the end of the night Pfarr did not know this was a practical joke on him. Officer Waddell does not remember texting Sergeant Pfarr a photo of the hubcap back in the Bentley but he could have. Officer Waddell said that he spoke to Sergeant Amoroso weeks ago about this incident. According to Waddell, Amoroso was approached by Sgt. Pfarr and told that he may be interviewed about this incident. Amoroso told Waddell to be honest and don't feel like you needed to protect him in any way in relation to their conversation about the prank. Amoros€told-Waddell--thatif-Amoroso- was-going-to F-in trou-ble_kor -being-a- pa-Ft-of raising the pfaa-k-idea--the" so ` e it When I asked Waddell if he and Amoroso discussed this being a prank three weeks ago he told me that Amoroso mentioned that to him. Waddell told Amoroso that it was a prank. Amoroso was the first one to tell him this investigation was going on. Waddell stated he told Amoroso about it being a prank the night after the'crashjcs271. Officer Waddell stated he has never taken any vehicle parts before. He said he has only used DRMO equipment for work and not for personal reasons. He said that he has two jackets that he wears during SWAT. Berry-Wilkinson objected that there was no prior notice given about an accusation that he has any equipment improperly at home. She claimed these questions were outside the scope of this investigation and that they weren't proper to be asked. She recommended the Department strike those from the investigation. Officer Waddell summarized this interview by stating it was his complete intention at the time to prank Sergeant Pfarr and that he never intended on taking anything. He realized that night that he made a bad choice and understood the position in which it put Sergeant Pfarr. Officer Waddell told me he would have put the hubcap back even if Pfarr had not indicated his dislike for the situation. Waddell told me the end result would have been the same and the hubcaps would have been back in the car. Officer Waddell said he would have gone to Pfarr if Pfarr had not called him about the incident. Officer Waddell again stated that the wheel cover was already back in the car when Pfarr called him on the telephone. He also said that had the conversation between he and Amoroso regarding pranking Sgt. Pfarr never come up he doesn't think he would have taken the wheel cove46S281. He said it was his choice to take the wheel cover and he takes responsibility for that but he doesn't think he would have done that. The interview lasted 73 minutes and ended at 3:23 PM. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 520 City of San Luis Obispo Police Department Memorandum Interview with Lieutenant John Bledsoe: I interviewed Lieutenant Bledsoe in my office on February 5, 2014 at 11:20 AM. The interview was digitally recorded. Bledsoe told me he first heard of this incident a few months ago when Sergeant Pfarr came to his office to express his feelings on possible candidates for the upcoming Investigations and Special Enforcement Team (SET) openings. Bledsoe remembers their discussion lasted about ten to fifteen minutes. Pfarr wanted to specifically discuss Officer Waddell because Waddell had expressed an interest in an investigator position. Sergeant Pfarr told Bledsoe that he had integrity concerns about Waddell because Waddell had planned to take a car part from a traffic collision scene that he was investigating. ;ic2911-ieutenant Bledsoe believes the item was some sort of hood ornament and that Officer Waddell told Sergeant Pfarr that he wanted to take it as some sort of memorabilia. Pfarr thought that Waddell might have been serious about taking the item for a souvenir even know Waddell had told him it was a jokeiGS3oi. Bledsoe thinks that Pfarr told Waddell at the scene to put the item back. Lieutenant Bledsoe told me that Pfarr told him that if Waddell had taken the item he would have had much more of an issue with it. Sergeant Pfarr told Lieutenant Bledsoe that he called Officer Waddell into his office as soon as Waddell had cleared the collision scene. Bledsoe got the impression that Pfarr resolved the issue that night by speaking to Officer Waddell about the issue. Lieutenant Bledsoe asked Pfarr if he had spoken to Lieutenant Smith, and Pfarr said that he had not. Bledsoe directed Sergeant Pfarr to tell Smith about the incident. Bledsoe's impression was that Pfarr wasn't certain about Waddell intentionally taking the part, ortakingitasajokeics311. The interview lasted 11 minutes and ended at 11:31 AM. Interview with Officer Greg Benson: I interviewed Officer Benson in my office on February 5, 2014 at 11:55 AM. The interview was digitally recorded. Benson told me he was not dispatched to the traffic collision at Orcutt and Johnson but he went by there to see the damage to the vehicle. He told me that Officers Kevany, Waddell; and Sergeant Pfarr were there when he arrived. He said other officers could have been there but he doesn't remember who. Officer Benson told me he was at the scene less than ten minutes. He said the tow truck had just gotten there and they were working on dragging the vehicle out from where it crashed. He doesn't remember f Officer Cudworth or Sgt. Goodwin was there. Officer Waddell was over by the Bentley when Off+ser-Bensen-he arrived.-When-a-sked nrha-Waddell-nras-d€ ir+q 1 'askertit;wl. Benson said, "He tried prying off one of the rear emblems to the vehicle." Officer Benson described the rear emblem that was on the lid of the trunk and he thinks the vehicle was upright. Officer Waddell was trying to get the emblem off, but the emblem was part of the locking mechanism of the trunk. Benson was standing about five feet from Waddell when he was prying the emblem and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 521 City of San Luis Obispo Police Department Memorandum Waddell tried to remove the emblem for about one minute. Benson does not remember Officer Waddell saying anything during this time. Officer Benson told me that he remembers Sergeant Pfarr and he looked at each I[ GS33jother and wondered if Waddell was really doing this — referring to Officer Waddell removing a car part. Officer Benson remembers Officer Waddell asking the tow truck driver for a screwdriver. He said that Waddell did have something that he was using. Benson said that Officer Waddell gave up on the trunk emblem and that he moved to something else. Benson thought Officer Waddell then tried to remove the steering wheel emblem. He got something from the car that Sergeant Pfarr made him put it back. Officer Benson also saw Waddell around one of the wheels. Officer Benson said that he couldn't be sure, but he thought Officer Waddell was there to get the Bentley emblem from the wheels. He did not remember if he used a tool or not with the wheel cover. Benson saw Waddell with a vehicle part in his hards but he doesn't remember what part it was. Officer Benson stated it was a vehicle part with the winged "B" for Bentley in the center. He has never heard of Officer Waddell having a parts collection. Officer Benson told me he cbserved Sergeant Pfarr confront Officer Waddell and Benson believes he could kind of tell what was being said. Benson believes that Sergeant Pfarr was telling Officer Waddell that he did not think it was appropriate what he was doing and he should put back what he took. Waddell then placed the item inside the vehicle. It was either the center cap of the wheel or the steering wheel emblem. Officer Benson said, "For some reason, I want to say that he took out his knife and cut like a piece out of the leather that was off the steering wheel but I can't remember. He got something with an emblem on Jas341it". Benson never saw Officer Waddell put anything in a bag. Benson saw Waddell put the item back in the car but there were also parts on the tow truck so he could have also put the part there. Officer Benson believes Sergeant Pfarr said, "On that note, let's get out of here before we get involved in his IA or that IA." Officer Benson thought Pfarr was referring to Officer Waddell trying to get parts off of a vehiclejas35j. Benson and Sergeant Pfarr then left the scene. Benson said he thinks that he and Sergeant Pfarr left the scene at the same time, and Officers Kevany and Waddell were still there. Officer Benson Knows was confident the tow truck driver saw Officer Waddell removing items because the tow truck driver and Waddell were talking about Waddell taking the partFGS361. Benson believes that Officer Kevany witnessed the taking of the emblem of the car. I asked Officer Benson what he thought was the motive for Officer Waddell removing the part and he said tnat he believes that Waddell thought the car was totaled and there was no value to the vehicle. He thought Waddell was taking the part for a souvenir. He remembers Officer Waddell looking for some kind of emblem to takel. He also remembers the cloth emblem had come off the steering wheel during the accident and it had the same Bentley logo on it. Benson thinks Waddell was either cutting or ripping the rest of the emblem off the steering wheel cover.'JGS371 Officer Benson said there would be no other reason Waddell took the part off the vehicle. I asked Benson if he thought Waddell intended on booking the part as evidence if he had left the scene Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 522 City of San Luis Obispo Police Department Memorandum with the part. Officer Benson told me "no" -so. I then asked him where he thought the part would have ended up. Benson -said replied, "In hisjc8381 personal belongings." Benson said that Waddell was not being secretive when he was attempting to take theparts. Officer Benson said that he cculd not understand how this incident could have been a joke. He did not have any conversation With Sergeant Pfarr about it being a joke. Benson said that Pfarr seemed, "pretty pissed" that Officer Waddell put him in that position. Benson described Pfarr turning red and getting really quiet and this is different for Sergeant Pfarr because he is always so nice. Officer Benson does not know anything about a text message from Waddell to Sergeant Pfarr nor does he know about a phone call from Pfarr to Waddell. Officer Benson has no knowledge whether Officer Waddell has a collection of car parts or not, nor has he ever seen Waddell take any items. He also has no information on anyDRMOequipmenthandledbyWaddell. Officer Benson had not heard of this incident again until I asked him about it today. Benson believes he witnessed the whole incident. He believes Officer Waddell attempted to take the part for personal gain. Benson said that he would classify the taking of the Bentley part as theft. Officer Benson just assumed that Waddell had been written up Ios391and the issue was over. He did not know there was an Administrative Inquiry underway. The interview lasted 29 minutes and ended at 12:24 PM. Interview with Lieutenant ,Jeff Smith: I interviewed Lieutenant Smith in my office on February 13th 2014 at 5:02 PM. The interview was digitally recorded. Smith told me he was first made aware of this incident when Sergeant Pfarr came into his office and told him about it. Smith does not remember the exact date of this meeting but it occurred sometime around the last Investigations and SET special assignment testing process. This meeting lasted about five minutes and Lieutenant Smith vaguely remembers his conversation with Pfarr. Sergeant Pfarr admitted to Smith that he should have told him about this incident earlier. Pfarr went on to tell Lieutenant Smith what happened at the collision that involved the Bentley. Smith remembers this collision because Sergeant Pfarr called him at home that night to inform him that a major collision had occurred. During the meetinginSmith's office, Sergeant Pfarr told him that when he arrived at the collision scene he saw Officer Waddell carrying one of the hubcaps and walking towards-Rfa-rrin his direction. He asked Waddell what he was doing and Waddell told him that he was just mess ingic,sao1 with him. Sergeant Pfarr told Officer Waddell to put the item back and that it wasn't funny. Pfarr told Lieutenant Smith that he thought that he handled Officer Waddell taking the vehicle part that day and did not think Waddell was really going to take the part. Pfarr thought Waddell was playing a practical joke on him because he was a new sergeant. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 523 City of San Luis Obispo Police Department Memorandum Lieutenant Smith believes Sergeant Pfarr brought this incident up to him months laterbeca-use- Rfarr-had- with-WaddeeH after Al.....was initiated and centered on an integrity ailecation. Waddell was doing working a lot-ofa si nificant number of overtime hours downtown for the Community Action Team (CAT) shifts and Smith had made it clear to his sergeants that he wanted those officers downtown for the entire four hour shift- Pfarr caught Waddell at the station Turing one of these shifts watching a movie and Waddell told him that he had just finished his lunch. Pfarr told Waddell that since it is only a four hour shift lou -he onl-get was onl entitled to a 15 minute break. There were also a couple of times where Waddell either came to work late or left early. Pfarr started to have concerns with some of the patterns that Waddell was showing. Because of these concerns, Smith believes that Pfarr reflected back on thi-s<- nddent the incident involving the collision questioning reconsiderin whether it was a practical joke or an interrupted the cFs4i i. ar cou4d-fie-reaNy have -beery takings -a --part, Smith remembers that Pfarr wasn't sure at the time whether it was a practical joke or not. Smith thinks that Waddell might have told Pfarr that he was going to take one of the hubcaps and then Waddell went and grabbed one. Smith said that Pfarr stated something like, "knock it off' but then he saw Waddell carrying it towards his car. Smith believes that Pfarr told him that Waddell did put the part in a brown paper bag and started walking toward his vehicle. At this point Pfarr questioned whether this was a practical joke or not. Waddell then stated he was just messing with him and then put the part back. Smith does not remember if Pfarr mentioned that Waddell text him a photo of the item back in the Bentley. Smith did not get the impression that Pfarr was minimizing the situation when he told him about it months later. Smith believes Pfarr came forward because he was having a lot of problems with Waddell on the weekends and Smith told Pfarr that he needed to hold Waddell accountable. Pfarr never mentioned to Smith the comment about an IA that he and Benson discussed at the scene. The interview lasted 13 minutes and ended at 5. 15 PM. CONCLUSION: During the course of this investigation I concluded that there is overwhelming evidence to show that Officer Waddell knowingly and willfully attempted to remove a vehicle part from a vehicle that did not belong to him. This was witnessed by other employees andatleastonecitizeri1w4,,..-I. I recommend that Allegation A and B be sustained and this case should be forwarded to Captain Chris Staley for final disposition. EXHIBITS: Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 524 City of San Luis Obispo Police Department Memorandum 1) Compact Disc with recorded interviews 2) Memo from Sergeant Pfarr to Captain Storton (attached to file) 3) Memo from Captain Storton to Lieutenant Proll (attached below) EXHIBIT #3 August 7, 2015MaFrh 24, 2044 To: Lieutenant Bill Proll From: Captain Keith Storton Subject: Waddell Investigation In December of 2013 Sgt. Pfarr had come to my office and discussed an encounter he had with Ofc. Waddell in February of 2013. Sgt. Pfarr relayed that he was a night watch Sergeant on duty when a serious traffic collision occurred involving an expensive Bentley. The nature of the collision required the call -out of the Police Department's Major Accident Team which included Ofc. Waddell. At some point while the team was investigating the collision Sgt. Pfarr happened to stopby to see if the team needed anything. While on scene he noticed Ofc. Waddell remove a Bentley emblem from the vehicle with a screwdriver. Sgt. Pfarr felt this was odd as the emblem had nothing to do with the collision and he was uncertain as to why Ofc. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 525 City of San Luis Obispo Police Department Memorandum Waddell was removing it. He noticed a bag near Ofc. Waddell that he thought contained other vehicle pieces. Sgt. Pfarr approached Ofc. Waddell to question him about the emblem. Ofc. Waddell indicated to Sgt. Pfarr he was retaining the piece for his "collection. Sgt. Pfarr was shocked in the response and thought that he must be kidding. He told Ofc. Waddell to put the emblem back and left the scene. Sgt. Pfarr never saw Ofc. Waddell put the vehicle emblem back, however indicated Ofc. Waddell sent him a text message with a photo of the part back in the car. Sgt. Pfarr had called Ofc. Waddell into his office a short time later to discuss theincident. He told Ofc. Waddell that the taking of the car parts, joke or not, was inappropriate. He told Ofc. Waddell that as far as he was concerned the issue was resolved. He would not be sharing the information with anyone else. Nothing further wasdone. Sgt. Pfarr indicated this issue involving Ofc. Waddell has bothered him for some time. He felt that Ofc. Waddell had truly intended to remove the Bentley emblem for his own personal use but Ofc. Waddell played it off as a joke because he had caught him. Sgt. Pfarr was so concerned he later went to Lt. Bledsoe and Lt. Smith (sometime around September of 2013) to explain the events that took place. He is not aware if Lt. Bledsoe or Lt. Smith had done anything with the information once they received it. I told Sgt. Pfarr this was the first that I had heard about the incident and I was concerned about the allegations. I felt the incident needed to be investigated further. I did not question Sgt. Pfarr in further detail and informed him not to discuss the matter with anyone else unless directed to do so. He understood and we concluded ourdiscussion. On December 20, 2013 1 pulled an Administrative Investigation tracking number andassignedtheinvestigationtoyourattention. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 526 city of san lues outspo Police Department Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 527 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 528 NOTE: THAT THERE IS NO APPELLANT EXHBIT Y -B Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 529 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 530 From: Staley. Chris To: Proll. Bill Subject: Waddell AI13005P (2) Date: Wednesday, March 26, 2014 12:25:23 PM Attachments: Waddell AI13005P f21.doc Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 531 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 532 n Memorandum IMrruPts.1 Service, Pride, hitegrity- February 28, 2014 To: Chief Gesell Via: Captain Staley From: Lieutenant Proll 13(305w C2) pvp• -I Subject: Administrative Inquiry Officer Waddell INTRODUCTION: MY of San l is omp Police Department 1042 Walnut SLO, CA 93401 805) 781-7317 In December of 2013 Sergeant Pfarr reported to Captain Storton that Officer Waddell attempted to take a vehicle pa`t from a vehicle while investigating a traffic accident in February of 2013. It was also mentioned that Officer Waddell might have a collection of car parts that he has taken from other accident scenes. I was assigned by Captain Storton to investigate these allegations. INTERVIEWS The persons listed below were interviewed chronologically, independently of one another. 1. College Towing Driver Sean Brady 2. Officer Josh Walsh 3. Officer Colleen Kevany 4. Officer Robert Cudworth 5. Sergeant Brian Amcroso 6. Officer George Berrios 7. Sergeant Janice Goodwin 8. Sergeant Chad Pfarr 9. Officer Kevin Waddell 10. Lieutenant John Bledsoe 11. Officer Greg Benson 12. Lieutenant Jeff Smith Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 533 City of San Luis Obispo Police Department Memorandum SYNOPSIS: On December 20, 2013 Captain Storton assigned me this Administrative Inquiry involving Officer Kevin Waddell. This case involves Officer Waddell removing a part from a vehicle that had been involved in a traffic collision that he investigated. Officer Waddell had removed a hubcap with a Bentley emblem from the car. Sergeant Pfarr initially believed that Waddell did this as a joke. Pfarr instructed Waddell to put the hubcap back and the officer did so. At the time, Sergeant Pfarr was in his third week as a newly promoted probationary sergeant and chose to verbally counsel Officer Waddell for what Pfarr considered to be an inappropriate joke. Pfarr did not initially notify his supervisor, Lieutenant Smith, because he believed what Waddell did was an ill- conceived practical joke. Pfarr did notify Lieutenant Smith months later when he began to consider that it might not have been a joke based on Waddell's observed work habits subsequent to the incident in question. Pfarr mentioned his concerns to Captain Storton in December of 2013 while discussing details regarding Al 13-004P. Based on this discussion with Captain Storton coupled with Sgt. Pfarr's concerns in hindsight, an Administrative Inquiry was initiated on December 20"', 2013.11(m] SUMMARY OF ALLEGATIONS: The following are the allegations against Officer Waddell: A. Conduct Detrimental to the Department If sustained, this allegation wou:d constitute a violation of San Luis Obispo Rules and Regulations Standard of Conduct section IV. I- which states in part, "Department employees shall not conduct themselves in a manner that reflects adversely on the Department, or which discredits the Department, or is detrimental or damaging to the reputation or professional image of the Department. B. Breaking or Removing Vehicle Parts 10852 CVC: No person shall either individually or in association with one or more other persons, willfully injure or camper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner. Violations of City policies and Department Rules and Regulations are cause for Disciplinary action per Municipal Code Section 2.36.320. Violations of the California Vehicle Code are grounds for possible criminal charges. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 534 City of San Luis Obispo Police Department Memorandum EVIDENCE AS TO EACH ALLEGATION: Interview with Colleq_e Tow Truck Driver Sean Kelly Brady: I met with Sean Brady at the Downtown Police Office on December 21, 2013 at 11:04 PM and explained that I needed to talk with him about an internal investigation that resulted from a vehicle accident call on February 22, 2013 at Johnson and Orcutt Road. I told Brady that he was the one who towed the vehicle and he told me he remembered the call. He mentioned that call was a long time ago and did not think he would remember much. I explained that I was looking into the actions of one of our officers. This interview was not tape recorded. Brady told me that he has worked at College Towing off and on for the past seven and a half years and he was dispatched to this collision to tow the only vehicle involved in the collision. Brady said there were numerous officers present when he arrived but he only recognized one who he identified as Colleen Kevany. Brady said that he has known Officer Kevany for years from accident related calls. He said there were a few officers in plain clothes and the others were in regular police uniforms. Brady noticed the vehicle, a Bentley, had rolled over and the officers present told him that they were done with the investigation and that he was able to proceed with towing it. Brady told an officer that he was going to have to drag the damaged vehicle out and roll it back over. Brady then went to move the tow truck so he could start to tow the vehicle. Brady stated that in between moving and " up -righting" the Bentley he was approached by a male officer who he believed was in uniform. Brady doesn't think he would be able to identify the officer. Brady said the officer asked him to borrow a screwdriver. Brady said that he dug through his toolbox on the truck and found a screwdriver and gave it to the officer. Brady said that other officers have, in the past, asked to borrow tools for such things as removing license plates. Brady stated that he was focused on getting the Bentley towable and he really was not looking at whatever anyone else at the scene was doing. He said that while he was hooking up to the front of the Bentley he remembered an officer near the rear of the car, but he is not sure who it was or what he was doing. When I asked Brady to explain this in further details he stated he thought the officer was near the rear passenger area and maybe was looking at the roll -bar feature the car has. Brady does not remember if this was the officer who borrowed the screwdriver. Brady does not remember exactly when but the officer who borrowed the screwdriver handed it back to him and thanked him. I asked Brady why he thought the officer would borrow a screwdriver and he said that he did not know. When I pressed him further he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 535 City of San Luis Obispo Police Department Memorandum said, "If I could use my imagination and I was back in high school I could think it was to remove parts." I asked Brady if he saw any officer remove any parts from the Bentley and he told me he did not. He said that he knows from being a car buff that Bentleys do not have hood ornaments. I asked him what could possibly be removed from a Bentley and he told me that the hubcaps could be removed. Brady told me specifically that he did not see any officer remove any hubcaps from the Bentley. He did say that it would be totally wrong if an officer removed parts to take them for personal use. Brady said his company has strong guidelines regarding this issue and they are not to take anything from a vehicle because they belong to the owner or the insurance company. Brady said he even parked the Bentley inside the College Towing building that night instead of leaving it outside because he was worried someone might steal something from itcs21. Brady told me he has no idea what the status of the hubcaps or emblems were when he arrived on scene or when he took the car to College Towing on Monterey Street. Brady does not remember any hubcaps or emblems that were on the driver's floorboard or anywhere else in the car when he arrived at the tow yard. I asked Brady if he ever considered asking what the officer needed the screwdriver for and he said, "He is a law enforcement officer so I am not going to question him at all." I asked Brady not to discuss this incident or interview with anyone and he agreed. He also said he would be available if I had further questions. I instructed Brady to -contact me if he remembers anything else about the incident. As of this report date Brady has not contacted me. There was no CHP form #180 done on this call because the vehicle was towed pursuant to the accident. The interview lasted 30 minutes and ended at 11:34 PM. Sean Kelly Brady DOB: 04/18/77 3500 Bullock Lane #60 SLO, CA 93401 805)550-8042 Interview with Officer Josh Walsh: I interviewed Officer Walsh in my office on December 31, 2013 at 11:16 PM. The interview was digitally recorded. Officer Walsh told me he remembered the Bentley crash. He was working that night but was not dispatched to the call. He went to the call because he had Communications Technician Lichty riding with him and he wanted to show her the scene. He wanted to show a dispatcher what a major traffic collision scene looked like. Officer Walsh told rre he was only at the scene for about 20 minutes and he does not remember any other personnel who were there. He said he did not have a role at the scene and when he left the vehicle's occupants were still being treated. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 536 City of San. Luis Obispo Police Department Memorandum Officer Walsh said he did not see any officer do anything illegal or against Department policy while he was there and he does not remember if Officer Waddell was there or not. The interview lasted six minutes and ended at 11:22 PM. Interview with Officer Colleen Kevany: I interviewed Officer Kevany in my office on January 3, 2014 at 8:30 AM. The interview was digitally recorded. Officer Kevany told me she remembered the traffic collision involving the Bentley. She was called out from home because she is a member of the traffic unit callout team and it was believed to be a probable fatal collision. Officer Kevany remembers Officer Waddell being present because he was working that night. She said she was using the Total Station accident diagramming equipment with Waddell and one other officer but she does not remember who that was. She said it was either Officer Cudworth or Sergeant Goodwin. Kevany said that Officer Waddell was in charge of the Total Station equipment and he was controlling the head of the device. Officer Kevany said Officer Waddell was present when the tow truck showed up, but she does not remember if she heard WaddE)ll ask the tow truck driver for a screwdriver. She also does not remember if Waddell actually received a screwdriver from the driver. When I asked Kevany if she saw Officer Waddell remove anything from the vehicle she said, "Yes we were going to take a little symbol off the front I think it was or something like that, a trophy for traffic supposed to be it wasn't anything for personal gain, we were just messing around." I asked Kevany what she meant by stating, "we?" She told me she was "just there" when Waddell said something like "this would be cool to put in Traffic". We knew at that point it wasn't going to be a fatal or any type of majorinvestigation. The car was totaled and it was just kind of a joke". Kevany said she doesn't remember if it was a hood emblem or a rim emblem. She also recalled the idea of taking the emblem was Officer Waddell's. Officer Kevany said the emblem was goingtogointotheTrafficofficeandshe said, "Look, we got to investigate a Bentley accident". Officer Kevany stated she has never seen Officer Waddell take off anything from anyothercars. She said, 'We never get to see a Bentley in a crash or a vehicle of this caliber. Kevany said Waddell was going to do it but he was corrected by a supervisor. I asked Officer Kevany if she remembers a supervisor coming up and saying, "You have got to be kidding me. You are not going to put me in this position". Officer Kevany said that Sergeant Pfarr would have said that. Officer Waddell had already removed the vehicle part when this statement was made. Officer Kevany said the taking of the emblem was "definitely not" a joke on Sergeant Pfarr because he was a brand new supervisor in her opinion. Kevany told me when I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 537 City of San Luis Obispo Police Department Memorandum asked that question was the first time she had heard that theory. She also said, "I would hope somebody would not put a supervisor in that position." Kevany said the taking of the part was to have it for a, "traffic trophy." Officer Kevany never saw Officer Waddell place anything into a brown paper bag. She does not remember any phone call occurring between Waddell and Sergeant Pfarr. She did say that she remembers the emblem just getting tossed back into the car and she believes it was just loose in the car. Officer Kevany has never seen Officer Waddell take anything from any vehicles in the past unless they were taken for evidence. I asked Officer Kevany if she was aware if Officer Waddell has a vehicle parts collection at home and she said, "No". I asked Kevany if Pfarr had not been at that scene or had not known about this what does she think would have happened and she said, "I think he would have taken the part and put it like on a board in traffic." Kevany said that is something that we should not be doing and she felt Wadcell would know that too. The interview lasted 24 minutes and ended at 8:54 AM. Interview with Officer Robert Cudworth: I interviewed Officer Cudworth in my office on January 7, 2014 at 11:21 AM. The interview was digitally recorded. Officer Cudworth remembers getting called out from home regarding the Bentley co lision. He remembers Officers Kevany and Waddell; and Sergeants Pfarr and Goodwin being present and he thinks there might have been a few others. Officer Cudworth assisted with the collision investigation by taking measurements and scene documentation. He said he left at the conclusion of the scene investigation and doesn't remember if the Bentley was still there or not. Officer Cudworth said that Officer Waddell was manning the control unit of the Total Station equipment. I asked Cudworth if he heard Officer Waddell ask the tow truck driver for a screwdriver and he told me that he did. Cudworth said, "Yes, my understanding was that he was going to attempt to or try and take off the Bentley emblem". Cudworth believed that this was Officer Waddell's "idea". Officer Cudworth does not remember ever seeing Waddell with a screwdriver nor did Cudworth see Waddell remove any item from the Bentley. Officer Cudworth never heard Officer Waddell say anything about having a collection of car parts. Cudworth remembers Waddell having a conversation with Sergeant Pfarr. Officer Cudworth believes Pfarr was asking Officer Waddell `what the heck" he was thinking about taking the emblem. Cudworth also thinks Pfarr told Waddell to, "knock it off." Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 538 City of San Luis Obispo Police Department Memorandum Officer Cudworth told me if he had seen Officer Waddell take something from the car he would not have thought it was a practical joke. Cudworth said that this was the first time he heard the practical joke theory that might have involved Sergeant Pfarr. He told me that if Waddell took something it would have been for personal interests. Officer Cudworth never saw Officer Waddell place anything into a brown paper bag, nor did he see Waddell place a brown paper bag in the Bentley. Cudworth is not aware of a phone call between Waddell and Sergeant Pfarr after Pfarr left the scene. Officer Cudworth has never seen Officer Waddell take any items for personal interest from any accident scene, nor has he heard of any collection of car parts that Waddell may or may not have. The interview lasted 29 minutes and ended at 11:50 AM. The digital recorder malfunctioned at the recording time of 11 minutes and 21 seconds. The remainder of the interview was not recorded. Interview with Sergeant Brian Amoroso: I interviewed Sergeant Amoroso in my office on January 7, 2014 at 1201 PM. The interview was digitally recorded. Amoroso told me he was working downtown when the traffic collision call involving the Bentley was dispatched. He said it sounded really bad, so he and Officer Waddell responded to the scene to see if they could help. Sergeant Amoroso went to see if Sergeant Pfarr needed any help regarding procedures or notifications. Waddell responded because he is a member of the traffic collision call -out team. Officer Hyman was the only officer that Sergeant Amoroso remembers seeing when he arrived. When Amoroso arrived, the Fire Department was extricating the occupants from the Bentley. Amoroso felt this was the type of traffic collision scene to which the call -out team should be summoned because it possibly involved a fatality. Amoroso stayed on the scene for a little while and then left. He said that Officer Waddell remained there as part of the call -out team. When Sergeant Amoroso left, the Bentley was still there and no other ca l -out officers had arrived yet. Amoroso left prior to the investigation being initiated by the call -out team. Sergeant Amoroso did not hear Officer Waddell ask the tow truck driver for a screwdriver, nor did he see Waddell obtain a screwdriver from the driver. Amoroso did not see Waddell remove anything from the Bentley, nor did he see Officer Waddell with a brown paper bag. Sergeant Amoroso did not hear Waddell say anything about having a collection of car parts nor did he see Waddell and Sergeant Pfarr having a conversation. Sergeant Amoroso has never seen Officer Waddell take any item from a vehicle in the past. Amoroso dces not think Waddell has done anything inappropriately with the DRMO military surplus equipment. Amoroso said that, as Officer Waddell's direct supervisor, he has been exemplary with categorizing and tracking the surplus military items. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 539 City of San Luis Obispo Police Department Memorandum Sergeant Amoroso first knew of the issue with the Bentley emblem when Sergeant Pfarr brought it up to him when Sergeant Villanti was in the promotional process. He said they were talking about who they thought would make a good sergeant. Pfarr told Amoroso about the incident when Waddell took hubcaps off a Bentley at an accident scene. Sergeant Pfarr told Amoroso that Waddell borrowed a screwdriver from a tow truck driver and removed a Bentley emblem from a crashed vehicle. Pfarr told Amoroso that he told Waddell to put the item back while Waddell was still at the accident scene. Sergeant Pfarr told Sergeant Amoroso that he verbally counseled Waddell in the field. Pfarr then called Waddell into the station because he was still feeling uneasy about what had occurred. Pfarr verbally counseled Waddell and left it at ,tha4Gs31. Amoroso stated that Pfarr later told his lieutenant, but nothing ever happened with it. Sergeant Amoroso told me that he remembered having a conversation with Officer Waddell at the Bentley collision scene while they were looking at Pfarr. The conversation was about how funny it would be to play a practical joke on Pfarr because he was a new sergeant. Amoroso was the instigator, but nothing specific was discussed about who would do it or what was to be done. Amoroso stated that the taking of a car part was definitely not discussed. I asked Sergeant Amoroso if Officer Waddell took items off of this car was it a result of Waddell playing a practical joke on ,Pfa[r Gs41. Amoroso said that based on the conversation that he and Waddell had it was the type of activity would be exactly what they would have been referring to as a funny joke that would make a new sergeant flip out. iGs5lAmoroso thought that Waddell taking the emblem was a joke. Amoroso said he could not say 100 percent for sure judging by my question about whether Waddell has a collection of car parts from other traffic accidents. Amoroso said that if that were true he would doubt that it would have anything to do with a practical joke. Amoroso said that if Officer Waddell took an item, there would only be two explanations for it. It was either a joke, or Waddell wanted the emblem. Pfar Gs61 told Amoroso that Waddell never mentioned to him that is was possibly a practical jokeicS71. Waddell was just very apologetic toward Pfarr. Pfarr never asked Amoroso if what Waddell did was a practical joke. Sergeant Amoroso told me that about a week and a half prior to this interview that Waddell came over to Amoroso's house, and they were talking in his driveway. At that time, Waddell was apparently unaware of this personnel investigation. Waddell was wondering why he had not heard anything yet, referring to an unrelated Gss. Amoroso told Waddell that I was working on an Administrative Inquiry. Waddell looked at Amoroso strangely and Amoroso instantly realized that he probably said something that he shouldn't have. Waddell asked Amoroso what he was talking about and Amoroso told him that I was working on something to do with a tow truck driver. Waddell asked Amoroso what it was about and he told him that he didn't remember much from that accident other than we had talked about "messing with" Pfarr. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 540 City of San Luis Obispo Police Department Memorandum Amoroso realized his mistake by telling Waddell about this Administrative Inquiry because Waddell did not know anything about it. Officer Waddell has-Reyer claimed to never told Sergeant Amoroso that the emblem issue was a practical joke. Amoroso said that he and Waddell have never talked about the taking of an item one way or another. The only comment that Amoroso remembers Waddell making was that Waddell already went all through this with Pfarr. The interview lasted 37 minutes and ended at 12:38 PM Interview with Officer George Berrios: I interviewed Officer Benios in my office on January 7, 2014 at 3:08 PM. The interview was digitally recorded. Berrios told me he was not working during the Bentley collision and did not respond to this call He told me he heard about the accident because other officers were talking in briefing about how the head rests popped and the vehicle's roll bar probably saved the occupant's lives. He told me that he did not know anything about any Bentley emblem or other part until I asked him about it on this date. Officer Berrios was shocked to hear that this personnel investigation was related to Officer Waddell possibly taking a vehicle part from the Bentley for personal gain. Berrios told me he has never seen, nor has he ever heard of Waddell removing or taking any item from a vehicle collision investigation since he has worked with him. Berrios has no knowledge of any vehicle parts collection that Waddell may or may not have. Officer Berrios also told me he has never seen Officer Waddell take anything from the DRMO program for personal gain. Berrios told me that he and Waddell pride themselves on keeping the DRMO stuff accountable because they did not want to lose the program. Officer Berrios told me that he also had not heard anything about a practical joke involving any Bentley part. The interview lasted six minutes and ended at 3:14 PM. Interview with Sergeant Janice Goodwin: I interviewed Sergeant Goodwin in my office on January 13, 2014 at 5:19 AM. The interview was digitally recorded. Goodwin told me she was called at home regarding the Bentley collision_ She learned that Officer Waddell was already at work and Officers Kevany and Cudworth were enfoute from home as part of the call -out team. Sergeant Goodwin went to the scene, and she and Officers Waddell, Cudworth, and Kevany investigated the collision. Goodwin believes a patrol officer was also on -scene to help Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 541 City of San Luis Obispo Police Department Memorandum with traffic control, and thinks -thought it might have been Officer Hyman. She stated that Sergeant Pfarr came to the scene once or twice and he brought them coffee. Goodwin said she was there to supervise and also to learn how to investigate a major accident. Sergeant Goodwin told me the investigation did not take as long as they thought it would and she left about 30 minutes prior to the rest of the call -out team leaving. She does not remember if the Bentley was still present when she left. Officer Waddell's role at the scene was to input the data into the Total Station_ systerA besauee--he-i&4he-awe-with-the moAk-nvwledge`of the -system. Sergeant Goodwin never heard or saw Waddell ask the tow truck driver for a screwdriver. She also never saw him get a screwdriver from the driver. She also never saw Waddell remove anything from the Bentley, nor did she see him with a brown paper bag. I asked Goodwin if she saw Sergeant Pfarr and Officer Waddell conversing at the scene and she said that she might have seen them talking, but she did not know what it was about. She also did not know about a phone call between Pfarr and Waddell after Pfarr left the scene. Sergeant Goodwin has never seen Officer Waddell remove anything from a vehicle other than for evidence and she has no knowledge whether he has a collection of car parts or not. In conclusion Sergeant Goodwin told me she has no memory of Officer Waddell involved with an emblem and she said she did not even remember a tow truck driver being there. She said if he did take an item it was a stupid thing to ;d0JGS9]. The interview lasted 14 minutes and ended at 5:33 AM. Interview with Sergeant Chad Pfarr: I interviewed Sergeant Pfarr in my office on January 25, 2014 at 6:46 PM. The interview was digitally recorded. Pfarr told me he responded to the accident involving the Bentley and he believes he was the second officer there. He initially thought the male occupant was dead —deceased and the female was conscious. Sergeant Pfarr contacted Lieutenant Smith to let him know that he would be calling out of the traffic team. Pfarr had the traffic investigation team called out and he remembers Officers Kevany, Chitty, Treanor; and Sergeant Goodwin being at the scene. Sergeant Pfarr told me he was the field supervisor that night and his role was to be the scene supervisor. Pfarr turned the scene over to the call -out team when they showed up. He remembers Officer Waddell and Sergeant Amoroso showing up in the FST truck with the call -out equipment. Officer Hyman was also there. Pfarr left the scene prior to Sergeant Goodwin arriving. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 542 City of San Luis Obispo Police Department Memorandum Sergeant Pfarr remembers that Officer Waddell was setting up the Total Station laser and the Bentley was still there. Pfarr watched as the tow truck driver rolled the Bentley over upright. Sergeant Pfarr initially observed Officer Waddell messingiGsiol with the emblem but he could not get it off. He believes it could have been the rear trunk deck emblem. Pfarr then heard Waddell ask the tow truck driver for a screwdriver. Pfarr saw Waddell and the tow truck driver walk over to the tow truck. Sergeant Pfarr believes that Officer Kevany could have heard Officer Waddell ask the tow truck driver for a screwdriver. Pfarr then saw Waddell with some sort of tool in his hand and believed it was a screwdriver but that it could have been some sort of pry tool. Sergeant Pfarr heard Officer Waddell make a comment to someone that might have been the tow truck driver. The comment was something like, "Add the emblem to his collection." Pfarr initially thought the removal of this emblem was a part of the accident investigation. When he heard the "collection" comment he thought Waddell was playing a silly joke on him because he was newly promoted and that it was not part of the investigation. Sergeant Pfarr said something like, "Ha ha, funny, jokes over, I am leaving now, I don't want to see you actually do this." Pfarr assumed that Waddell would not finish taking the part. Sergeant Pfarr then -got into his vehicle and started to drive away. In his mirror, Pfarr saw Officer Waddell working on the trunk emblem, but did not see him physically pry it off. He then saw Waddell crouch down by one of the wheels of the Bentley and pop off the hubcap. Sergeant Pfarr thought that Officer Waddell put the wheel cover with the Bentley emblem into a brown paper bag and walked away to where the units were parked. Pfarr did not see if Waddell returned the screwdriver to the tow truck driver or not. As Sergeant Pfau- was driving away he called Officer Waddell at 5:08 AM on the cell phone. He stated that before he dialed Waddell's number, Pfarr received a text from Officer Waddell's personal cell phone. Waddell texted Sergeant Pfarr a photo of two items loose on the Bentley floor. There was no text in the message and it only contained the photo. Waddell then answered Pfarr's call and told him that he just sent him a text message. Sergeant Pfarr said something like, "I can't believe you just put me in that situation." Officer Waddell responded by saying that he was just being funny and put it back. Pfarr stated that he is 99% sure that Waddell said-thattold him he was joking. He said -thatindicated Waddell never said that he was planning on stealing the car part. Pfarr stated he would have handled the situation differently if Officer Waddell had said something like that. Sergeant Pfarr told Waddell when he was finished at the scene to come and see him in the sergeant's office. I asked Sergeant Pfarr what he thought made Officer Waddell change his mind after Pfarr saw Waddell walking to the FST truck with a brown paper bag containing the vehicle parts he had just removed. Pfarr said that there were a couple of possibilities. One being that it was a--tetalactually a joke and Waddell saw Pfarr leaving and was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 543 City of San Luis Obispo Police Department Memorandum going to put the parts back_, or alt was also possible another officer at the scene told him it was',A dumb idea.icsnito take the parts. Sergeant Pfarr thought another possibility was that it dawned on Officer Waddell that taking these parts was 'not the best idea GS121and maybe he should put them back. Sergeant Pfarr told me he did not tell Officer Waddell to put the items back while he was at the scene because he was leaving when he saw the parts being taken. Pfarr does not believd the items that Wadcell removed from the Bentley ever made it to Waddell's patrol vehicle. When Officer Waddell arrived at Sergeant Pfarr's office, Pfarr was angry and Waddell was very apologetic, stating that he used bad judgment He -said that he and was justwas to be funny cs131. Pfarr said that Waddell was showing a great deal of remorse and portraying it as a joke that went too far. Sergeant Pfarr asked Waddell what would happen if the tow truck driver was to get in trouble and feel that he had "some dirt" on Officer Waddell. Waddell told Pfarr that he "brushed it ;bve6Gs14J" with the tow truck driver and let him know that it was a new sergeant and that it was just a joke. Pfarr and Waddell had about a 15 -minute conversation and Pfarr did not think that this would ever be an issue again. Sergeant Pfarr had a conversation with Officer Kevany after Officer Waddell left his office. Pfarr-told Kevany that he did not know if she saw what went on at the scene but he wanted to make sure they were on the same page that it was not ok to take parts from a traffic scene. Officer Kevany was in absolute agreement with Sergeant Pfarr. Kevany never said anything about what Waddell did at the scene. Pfarr told Officer Kevany that he did not want her to leave thinking that ;Officer Waddell was going to get away with this kind of stuff referring to taking parts. tGsts1 Sergeant Pfarr does not know of a collection of parts that Officer Waddell may have, nor has he ever seen Officer Waddell take anything in the past. Pfarr has never seen him take any DRMO equipment in the past. Several --month after his-ooi4sie ergeart#-Pfarr-sta4ed-tbiaki ig-th-t he migRot- ktave sed4lie` e #udgment by-nof-:ell a-lieutenant---abeut-this-inGwent H ctStr;l said this was about the time when Waddell was applying for an Investigator position. Pfarr said that he told Lieutenant's Bledsoe and Smith about this separately but within a few minutes of each other. Pfarr told them the reason he did not bring this up earlier was because he thought what Waddell did was a joke. He thought the information was relevant whether it was a joke or not and wanted them aware of what happened with the Bentley parts. Pfarr stated that 'Waddell was either going to steal the parts or it was a bad joke. Pfarr felt that Waddel,'s judgment would not make him a good candidate for this position. Pfarr admitted that he might have been naive about these types of things and he started to doubt Waddell's intention with the parts. Pfarr also admitted that had Waddell not pu"applied for Investigations he probably would not have said anything about this incident unless something else had come up later on. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 544 City of San Luis Obispo Police Department Memorandum Sergeant Pfarr told me that Waddell never told him that he was playing a practical joke on him. Pfarr reiterated that Waddell has said things -made statements such as "I was just joking" and "I was just messing around." The interview lasted 56 minutes and ended at 7:42 PM. Interview with Officer Kevin Waddell: I interviewed Officer Waddell on January 27h, 2013 at 2:10 PM in the City Council meeting room across from the City Attorney's office at 990 Palm. The interview was digitally recorded. Officer Waddell was represented by his Attomey Alison Berry Wilkinson. Assisting me during the interview was Sergeant Fred Mickel. I read to Officer Waddell the interview admonition along with his Constitutional Rights. Waddell invoked his rights and chose not to speak with me. At this time I ordered him to answer my questions related to this inquiry per Lybarger vs. City of Los Angeles. Officer Waddell said he understood his rights in this matter and signed the Interview Record form. Officer Waddell told me remembers responding to the collision involving the Bentley. He believes Officers Benson, Rodriguez, Hyman, Kevany, Cudworth; and Sergeant Pfarr were there. Allison Berry Wilkinson wanted it noted that this incident happened almost a year ago and Waddell is prejudiced by the passage of time and I will just be getting his best present recollection. He also thinks Sergeant Amoroso came to the scene and might have taken Waddell back to the station to get equipment. Officer Waddell does not remember if Sergeant Goodwin made it to the scene or not. Waddell's role at the scene as a member of the Accident Reconstruction Team was to take over the collision investigation. Officers Cudworth and Kevany were also there as team members and Waddell worked directly with them at the scene. Officer Waddell told me he did ask the tow truck driver for a screwdriver after the Bentley was rolled over onto its wheels and the officers were going to release the vehicle to be towed. He told me he asked for a screwdriver because he was going to use it to take a wheel cover off the ehiClejGS171. Waddell told me it was his idea to take the wheel cover off and it was also his idea to ask for a screwdriver. He does not remember if the tow truck driver asked him why he wanted a screwdriver. Waddell did get a screwdriver from the driver. I asked Officer Waddell if he thought the tow truck driver knew What he lcst8iwas doing when he was taking off the wheel cover. Waddell told me he was trying to be very vocal about what he was doing and that he was trying to be dramatic and obvious. with what ire -was -doing -Waddell stated4haf-he--clefifteiy-remembereds taking off a hubcap. He said, "I remember at one point making reference to a emblem on the car, I don't recall, just I don't remember talking about the emblem itself and getting one off the car but I never took an emblem other than the hubcap." He was not sure but he thinks the hubcap came from a wheel on the rear passenger side of the car. Waddell told me he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 545 City of San Luis Obispo Police Department Memorandum doesn't remember ever trying to take an emblem off on the front of the hood but he remembers referencing it. I asked him what he meant by referencing and he said, "as I said a second ago I remember when I got the screwdriver, talking about the emblem and what it looks like its cool emblem and you could use a, I could use a screwdriver, I bet you could get this off, I bet you that thing comes off, just get behind it and it comes off, and then the hubcap was an easier thing to take off." Waddell did not think that the emblem would even come off with any kind of reasonableness. I then briefly summarized what Waddell had told me so far regarding removing the hubcap and he again said that he made it obvious that he was doing it and that he was talking loud about i4cs191. After Officer Waddell took off the hubcap he put it on top of another hubcap that had come off during the collision. The hubcap that came off during the collision was located on a dirt berm and he does not remember the hubcap's condition. He stated the one he pried off was in fine condition. Waddell said that he did not place anything related to these items in a large brown evidence bag. Waddell did not recall if he put any items related to the investigation into a brown paper bag. He said that neither wheel cover was ever placed into a bag while he was at the scene. He said, "my intention was never to take these items away from the scene.'1GS2ol He also said he never walked these items to a car. Waddell stated that he was sure the tow truck driver saw him removing the wheel cover because he was being very obvious with what he was doing and he was not intending on hiding his acts *He also believes Officer Benson and Sergeant Pfarr saw him remove the wheel cap. Officer Waddell said the reason he took off the hubcap was that he was playing a prank on Sergeant Pfarr and was trying to do something to get him to respond and react to me, and to get him to tell Waddell to stop doing it. Waddell said he never had any intention on taking the items fcr anything and that he had no need for them. He also said his sole reason for that was that he was messing with Pfarr_ Waddell admits it was a poor decision due to the timing and the people around. Waddell instigated the prank because of a conversation that ie and Sergeant Amoroso had about playing a prank on Pfarr. He said their conversation did not contain any specifics on what the prank would be and he believed the conversation took place that same shift but it could have been the day before. He said the prank was designed to be light hearted and that it had something to do with the close working relationship between the two sergeants. It was because Pfarr was a newer sergeant and the prank was to joke with him and Waddell thought it would be funny. Officer Waddell again stated that was being loud when he was taking the hubcap off and that he was not trying to be secretive. He was referencing the emblem a lot and how cool it was and he was making random comments about the car_ He said that he has never retained anything from any prior accident scenes. He does not recall ever saying anything about having a collection of car parts and if he did it would have been in reference to the prank. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 546 City of San Luis Obispo Police Department Memorandum Officer Waddell told me that Officer Benson was close by when.. he took off the hubcap and that he had a conversation with him after the fact. He also said that he is positive that Pfarr knew he removed the hubcap. Waddell said that the hubcap was the only item he took off the car. I then asked him if he had tried to remove any other items from the car and he said he had looked at an emblem on the front or the back of the car. He said he did place a screwdriver against the emblem but he realized taking the emblem would cause damage to the car so he went away. He said he did not want to damage the car. Officer Waddell told me he dces not remember making a statement about having a collection of parts. He also said he doesn't remember having any other conversations at the scene except for Sergeant Pfarr saying to Waddell, "I can't be here for this" and, "I'm not going to be a part of this." At this time Pfarr walked away and got in his car and left. Officer Waddell thought Pfarr was referring to him taking the car part off the car. Officer Waddell told me as Pfarr was walking away he told Pfarr that he was just messing around but he received no acknowledgement from Pfarr. Waddell doesn't know if Pfarr heard him or not. Waddell stated that Sergeant Pfarr did not tell him to put the part back while he was at the scene. Officer Waddell thought his prank was not well-received by Pfarr based on Pfarr's comments, Pfarr walking away and Pfarr not acknowledging Waddell's comment about messing with him. Officer Waddell said that after the exchange with Sergeant Pfarr he gave the screwdriver back to the tow truck driver and he put the hubcap on the driver's seat of the Bentley. He said he made a point with the tow truck driver what he was doing. cs221Waddell said that he told the tow truck driver that he didn't have a need for the hubcap from a Bentley and that he was just messing around. He said the tow truck driver then awkwardly chuckled. Officer Waddell said that after Sergeant Pfarr left the scene he called Waddell on his personal cell phone. Pfarr told Waddell that he put him in a bad spot and that he needed to put the parts back. Waddell said he told Pfarr that he had already put the car parts back. Waddell said he told Sergeant Pfarr that he was just messing around with him. Waddell said Pfarr could have asked him to come and see him at the station but he was not sure. Officer Waddell stated that when he returned to the station he met with Sergeant Pfarr in the sergeant's office. He said that Pfarr told him that it was a bad deaJcs231 and he put him in a bad spot and that junior officers were present. Pfarr asked him what they were going to think. Sergeant Pfarr told Officer Waddell that he spoke to everyone who was there to reassure everyone that he handled this incident with Waddell. Waddell saw Officer Benson in the parking lot and assured him that he did not want to put anyone in a bad spot and that he had no intention of taking anything. Waddell expressed to Benson that he made a bad decision. asked Waddell if when he was on the phone or at the station with Pfarr did he tell Pfarr why he took the car partsYos241. Waddellsaid other than saying at - re lied he was just messing around and joking ics2sihe did not get into specifics because he thought Pfarr Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 547 City of San Luis Obispo Police Department Memorandum was upset with him and the situation. Waddell did not bring up the previously mentioned reasons for the prank to iGs26JPfarr. Waddell stated that at the end of the night Pfarr did not know this was a practical joke on him. Officer Waddell does not remember texting Sergeant Pfarr a photo of the hubcap back in the Bentley but he could have. Officer Waddell said that he spoke to Sergeant Amoroso weeks ago about this incident. According to Waddell, Amoroso was approached by Sgt. Pfarr and told that he may be interviewed about this incident. Amoroso told Waddell to be honest and don't feel like you needed to protect him in any way in relation to their conversation about the prank. Arnereso told Waddell that ;f Amerese was going to be in trouble for being a paFt e raising the monk idea then so be it. When I asked Waddell if he and Amoroso discussed this being a prank three weeks ago he told me that Amoroso mentioned that to him. Waddell told Amoroso that it was a prank. Amoroso was the first one to tell him this investigation was going on. Waddell stated he told Amoroso about it being a prank the night after the crastiGs27). Officer Waddell stated he has never taken any vehicle parts before. He said he has only used DRMO equipment for work and not for personal reasons. He said that he has two jackets that he wears during SWAT. Berry -Wilkinson objected that there was no prior notice given about an accusation that he has any equipment improperly at home. She claimed these questions were outside the scope of this investigation and that they weren't proper to be asked. She recommended the Department strike those from the investigation. Officer Waddell summarized this interview by stating it was his complete intention at the time to prank Sergeant Pfarr and that he never intended on taking anything. He realized that night that he made a bad choice and understood the position in which it put Sergeant Pfarr. Officer Waddell told me he would have put the hubcap back even if Pfarr had not indicated his dislike for the situation. Waddell told me the end result would have been the same and the hubcaps would have been back in the car. Officer Waddell said he would have gone to Pfarr if Pfarr had not called him about the incident. Officer Waddell again stated that the wheel cover was already back in the car when Pfarr called him on the telephone. He also said that had the conversation between he and Amoroso regarding pranking Sgt. Pfarr never come up he doesn't think he would have taken the wheel covegcS2SI. He said it was his choice to take the wheel cover and he takes responsibility for that but he doesn't think he would have done that. The interview lasted 73 minutes and ended at 3:23 PM. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 548 City of San Luis Obispo Police Department Memorandum Interview with Lieutenant John Bledsoe: I interviewed Lieutenant Bledsoe in my office on February 5, 2014 at 11:20 AM. The interview was digitally recorded. Bledsoe told me he first heard of this incident a few months ago when Sergeant Pfarr came to his office to express his feelings on possible candidates for the upcoming Investigations and Special Enforcement Team (SET) openings. Bledsoe remembers their discussion lasted about ten to fifteen minutes. Pfarr wanted to specifically discuss Officer Waddell because Waddell had expressed an interest in an investigator position. Sergeant Pfarr told Bledsoe that he had integrity concerns about Waddell because Waddell had planned to take a car part from a traffic collision scene that he was investigating. iGsz>>Lieutenant Bledsoe believes the item was some sort of hood ornament and that Officer Waddell told Sergeant Pfarr that he wanted to take it as some sort of memorabilia. Pfarr thought that Waddell might have been serious about taking the ,tem for a souvenir even know Waddell had told him it was a jokeFGs3o1. Bledsoe thinks that Pfarr told Waddell at the scene to put the item back. Lieutenant Bledsoe told me that Pfarr told him that if Waddell had taken the item he would have had much more of an issue with it. Sergeant Pfarr told Lieutenant Bledsoe that he called Officer Waddell into his office as soon as Waddell had cleared the collision scene. Bledsoe got the impression that Pfarr resolved the issue that night by speaking to Officer Waddell about the issue. Lieutenant Bledsoe asked Pfarr if he had spoken to Lieutenant Smith, and Pfarr said that he had not. Bledsoe directed Sergeant Pfarr to tell Smith about the incident. Bledsoe's impression was that Pfarr wasn't certain about Waddell intentionally taking the part, or taking it as a jokejGs31 1. The interview lasted 11 minutes and ended at 11.31 AM. Interview with Officer Greg Benson: I interviewed Officer Benson in my office on February 5, 2014 at 11:55 AM. The interview was digitally recorded. Benson told me he was not dispatched to the traffic collision at Orcutt and Johnson but he went by there to see the damage to the vehicle. He told me that Officers Kevany, Waddell, and Sergeant Pfarr were there when he arrived. He said other officers could have been there but he doesn't remember who. Officer Benson told me he was at the scene less than ten minutes. He said the tow truck had just gotten there and they were working on dragging the vehicle out from where it crashed. He doesn't remember if Officer Cudworth or Sgt. Goodwin was there. Officer Waddell was over by the Bentley when Offc;erBenson he arrived. When ask wha Waddell mvasi®I_askdtt w3....-, Benson said, "He tried prying off one of the rear emblems to the vehicle." Officer Benson described the rear emblem that was on the lid of the trunk and he thinks the vehicle was upright. Officer Waddell was trying to get the emblem off, but the emblem was part of the locking mechanism of the trunk. Benson was standing about five feet from Waddell when he was prying the emblem and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 549 City of San Luis Obispo Police Department Memorandum Waddell tried to remove the emblem for about one minute. Benson does not remember Officer Waddell saying anything during this time. Officer Benson told me that he remembers Sergeant Pfarr and he looked at each JGS331other and wondered if Waddell was really doing this — referring to Officer Waddell removing a car part. Officer Benson remembers Officer Waddell asking the tow truck driver for a screwdriver. He said that Waddell did have something that he was using. Benson said that Officer Waddell gave up on the trunk emblem and that he moved to something else. Benson thought Officer Waddell then tried to remove the steering wheel emblem. He got something from the car that Sergeant Pfarr made him put it back. Officer Benson also saw Waddell around one of the wheels. Officer Benson said that he couldn't be sure, but he thought Officer Waddell was there to get the Bentley emblem from the wheels. He did not remember if he used a tool or not with the wheel cover. Benson saw Waddell with a vehicle part in his hands but he doesn't remember what part it was. Officer Benson stated it was a vehicle part with the winged "B" for Bentley in the center. He has never heard of Officer Waddell having a parts collection. Officer Benson told me he observed Sergeant Pfarr confront Officer Waddell and Benson believes he could kind of tell what was being said. Benson believes that Sergeant Pfarr was telling Officer Waddell that he did not think it was appropriate what he was doing and he should put back what he took. Waddell then placed the item inside the vehicle. It was either the center cap of the wheel or the steering wheel emblem. Officer Benson said, "For some reason, I want to say that he took out his knife and cut like a piece out of the leather that was off the steering wheel but I can't remember. He got something with an emblem on jGS341it". Benson never saw Officer Waddell put anything in a bag. Benson saw Waddell put the item back in the car but there were also parts on the tow truck so he could have also put the part there. Officer Benson believes Sergeant Pfarr said, "On that note, let's get out of here before we get involved in his IA or that IA-", Officer Benson thought Pfarr was referring to Officer Waddell trying to get parts off of a vehicleics351. Benson and Sergeant Pfarr then left the scene. Benson said he thinks that he and Sergeant Pfarr left the scene at the same time, and Officers Kevany and Waddell were still there. Officer Benson knows was confident the tow truck driver saw Officer Waddell removing items because the tow truck driver and Waddell were talking about Waddell taking the par GS361. Benson believes that Officer Kevany witnessed the taking of the emblem of the car. I asked Officer Benson what he thought was the motive for Officer Waddell removing the part and he said that he believes that Waddell thought the car was totaled and there was no value to the vehicle. He thought Waddell was taking the part for a souvenir. He remembers Officer Waddell looking for some kind of emblem to take. He also remembers the cloth emblem had come off the steering wheel during the accident and it had the same Bentley logo on it. Benson thinks Waddell was either cutting or ripping the rest of the emblem off the steering wheel cover. Officer Benson said there would be no other reason Waddell took the part off the vehicle. I asked Benson if he thought Waddell intended on booking the part as evidence if he had left the scene with Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 550 City of San Luis Obispo Police Department Memorandum the part. Officer Benson told me "no" so I then asked him where he thought the part would have ended up. Benson said, "in his personal belongings." Benson said that Waddell was not being secretive when he was attempting to take the parts. Officer Benson said that he could not understand how this incident could have been a joke. He did not have any conversation with Sergeant Pfarr about it being a joke. Benson said that Pfarr seemed, "pretty pissed" that Officer Waddell put him in that position. Benson described Pfarr turning red and getting really quiet and this is different for Sergeant Pfarr because I -e is always so nice. Officer Benson does not know anything about a text message from Waddell to Sergeant Pfarr nor does he know about a phone call from Pfarr to Waddell. Officer Benson has no knowledge whether Officer Waddell has a collection of car parts or not, nor has he ever seen Waddell take any items. He also has no information on any DRMO equipment handled by Waddell. Officer Benson had not heard of this incident again until I asked him about it today. Benson believes he witnessed the whole incident. He believes Officer Waddell attempted to take the part for personal gain. Benson said that he would classify the taking of the Bentley part as theft. Officer Benson just assumed that Waddell had been written up and the issue was over. He did not know there was an Administrative Inquiry underway. The interview lasted 29 minutes and ended at 12.24 PM. Interview with Lieutenant Jeff Smith: I interviewed Lieutenant Smith in my office on February 13th 2014 at 5:02 PM. The interview was digitally recorded_ Smith told me he was first made aware of this incident when Sergeant Pfarr came into his office and told him about it. Smith does not remember the exact date of this meeting but it occurred sometime around the last Investigations and SET special assignment testing process. This meeting lasted about five minutes and Lieutenant Smith hard_ a vague recollection of his conversation with Pfarr. Sergeant Pfarr admitted to Smith that he should have told him about this incident earlier. Pfarr went on to tell Lieutenant Smith what happened -had occurred at the collision that involved the Bentley. Smith remembers this collision because Sergeant Pfarr called him at home that night to inform him that a major collision had occurred. During the meeting in Smith's office, Sergeant Pfarr told him that when he arrived at the collision scene he saw Officer Waddell carrying one of the hubcaps and walking towards Pfarr. He asked Waddell what he was doing and Waddell told him that he was just messing x371 with him. Sergeant Pfarr told Officer Waddell to put the item back and that it wasn't funny. Pfarr told Lieutenant Smith that he thought that he handled OfficegSC381 Waddell taking-#he1:,c39J vehicle parts that day and he did not think --really believe that Waddell was really going to take the -anter parts. Pfarr thought -believed that Waddell was playing a practical joke on him because because of the fact that he was a new sergeant. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 551 City of San Luis Obispo -Police Department Memorandum Lieutenant Smith believesd that Sergeant Pfarr brought this incident up—to his attentionhim months later because Pfarr had experienced some integrity issues with Waddell. Waddell was doing- volunteering for a lot number of overtime shifts in the downtown for the (Community Action Tea_m)CAT shifts. and Smith expressed that he had made it clear to his sergeants that he wantedhis expectations were that those officers woad i he in the downtown for the entire four hour shift when working the CAT uridetails. Dng one occasion Pfarr caught Waddell at the station during one of these shifts watching a movie and Waddell told him that he had just finished his lunch. Pfarr told Waddell that since it is only a four hour shift you -he should only get be eligible for a 15 minute break. There were also a -Couple of times -other occasions where Waddell either came to work late or left early. Pfarr started began to have concerns with SGme G the patterns -that Waddell -Viewing due to these types_ of incidents. Due to these concerns, Smith believes that Pfarr reflected back on this incident and began to questioning whether it was truly a practical joke or ceuld hethe possibility that he really -ham been tak ag-a-part intended in removing and keeping ;parts from the wrecked vehicle. Smith rernerebers-recalled that Pfarr wasn't sure at the time whether it was a practical joke or not. Smith thinks -believed that Waddell might have told Pfarr that he was going to take one of the wrecked vehicles hubcaps and that theft Waddell went and -grabbed then went and removed one tf a hubcap from the vehicle. Smith said that Pfarr stated something -I" to the effect of , "knock it off". Pfarr but then he saw Waddell carrying itthe hubcap towards hisWaddell's car<vehicle. Smith believes that Pfarr told -did tell him that Waddell did pet-t#e.-W place the hubcap in a brown paper bag and started began walking toward his vehicle. At this point Pfarr began to questioned whether this was atruly a practical joke or notsomething more. Waddell then stated he was just "messing with him_' and he then put the--part-hubcap back. Smith does did not r ---Mm recall if Pfarr mentioned that a -Waddell a text message him from Waddell with a photo of the item back in the Bentley. Smith did not get the impression that Pfarr was minimizing the situation when he told him about it months later. Smith believes Pfarr came forward because he was having a lot of prablenis issues with Waddell on the weekends and Smith had told Pfarr that he needed to hold Waddell accountable for his actions. Pfarr never mentioned to Smith the comment about an IA that he and Benson discussed at the scene. The interview lasted 13 minutes and ended at 5.15 PK CONCLUSION: During the course of this investigation I concluded that there is overwhelming evidence to show that Officer Waddell knowingly and willfully attempted to remove a vehicle part from a vehicle that did not belong to him. This was witnessed by other employees and at least one citizen. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 552 City of San Luis Obispo Police Department Memorandum I recommend that Allegation A and B be sustained and this case should be forwarded to Captain Chris Staley for final disposition. EXHIBITS: 1) Compact Disc with recorded interviews 2) Memo from Sergeant Pfarr to Captain Storton (attached to file) 3) Memo from Captain Storton to Lieutenant Proll (attached below) EXHIBIT #3 August 7, 2015Mareh-26,--2014MarrA-24,-201-4 To: Lieutenant Bill Proll From: Captain Keith Storton Subject: Waddell Investigation In December of 2013 Sgt. Pfarr had come to my office and discussed an encounter he had with Ofc. Waddell in February of 2013. Sgt. Pfarr relayed that he was a night watch Sergeant on duty when a serious traffic collision occurred involving an expensive Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 553 City of San Luis Obispo Police Department Memorandum Bentley. The nature of the collision required the call -out of the Police Department's Major Accident Team which included Ofc. Waddell. At some point while the team was investigating the collision Sgt. Pfarr happened to stop by to see if the team needed anything. While on scene he noticed Ofc. Waddell remove a Bentley emblem from the vehicle with a screwdriver. Sgt. Pfarr felt this was odd as the emblem had nothing to do with the collision and he was uncertain as to why Ofc. Waddell was removing it. He noticed a bag near Ofc. Waddell that he thought contained other vehicle pieces. Sgt. Pfarr approached Ofc. Waddell to question him about the emblem. Ofc. Waddell indicated to Sgt. Pfarr he was retaining the piece for his "collection". Sgt. Pfarr was shocked in the response and thought that he must be kidding. He told Ofc. Waddell to put the emblem back and left the scene. Sgt. Pfarr never saw Ofc. Waddell put the vehicle emblem back, however indicated Ofc. Waddell sent him a text message with a photo of the part back in the car. Sgt. Pfarr had called Ofc. Waddell into his office a short time later to discuss the incident. He told Ofc. Waddell that the taking of the car parts, joke or not, was inappropriate. He told Ofc. Waddell that as far as he was concerned the issue was resolved. He would not be sharing the information with anyone else. Nothing further was done. Sgt. Pfarr indicated this issue involving Ofc. Waddell has bothered him for some time. He felt that Ofc. Waddell had truly intended to remove the Bentley emblem for his own personal use but Ofc. Waddell played it off as a joke because he had caught him. Sgt. Pfarr was so concerned he later went to Lt. Bledsoe and Lt. Smith (sometime around September of 2013) to explain the events that took place. He is not aware if Lt. Bledsoe or Lt. Smith had done anything with the information once they received it. I told Sgt. Pfarr this was the first that I had heard about the incident and I was concerned about the allegations. I felt the incident needed to be investigated further. I did not question Sgt. Pfarr in further detail and informed him not to discuss the matter with anyone else unless directed to do so. He understood and we concluded our discussion. On December 20, 2013 1 pulled an Administrative Investigation tracking number and assigned the investigation to your attention. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 554 City of San Luis Obispo Police Department Memorandum Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 555 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 556 1 15OC.UD ( 5 G6 C1Fprv T{w Memorandum Service, Pride, Integrio " February 28, 2014 To: Chief Gesell Via: Captain Staley From: Lieutenant Proll Subject: Administrative Inquiry Officer Waddell INTRODUCTION: Aw /P My of san lues omi pb Police Department 1042 Walnut SLO, CA 93401 805) 781-7317 In December of 2013 Sergeant Pfarr reported to Captain Storton that Officer Waddell attempted to take a vehicle part from a vehicle while investigating a traffic accident in February of 2013. It was also mentioned that Officer Waddell might have a collection of car parts that he has taken from other accident scenes. I was assigned by Captain Storton to investigate these allegations. INTERVIEWS The persons listed below were interviewed chronologically, independently of one another. 1. College Towing Driver Sean Brady 2. Officer Josh Walsh 3. Officer Colleen Kevany 4. Officer Robert Cudworth 5. Sergeant Brian Amoroso 6. Officer George Berrios 7. Sergeant Janice Goodwin 8. Sergeant Chad Pfarr 9. Officer Kevin Waddell 10. Lieutenant John Bledsoe 11. Officer Greg Benson 12. Lieutenant Jeff Smith Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 557 City of San Luis Obispo Police Department Memorandum SYNOPSIS: On December 20, 2013 Captain Storton assigned me this Administrative Inquiry involving Officer Kevin Waddell. This case involves Officer Waddell removing a part from a vehicle that had been involved in a traffic collision that he investigated. Officer Waddell had removed a hubcap with a Bentley emblem from the car. Sergeant Pfarr initially believed that Waddell did this as a joke. Pfarr instructed Waddell to put the hubcap back and the officer did so. At the time, Sergeant Pfarr was in his third week as a newly promoted probationary sergeant and chose to verbally counsel Officer Waddell for what Pfarr considered to be an inappropriate joke. Pfarr did not initially notify his supervisor, Lieutenant Smith, because he believed what Waddell did was an ill- conceived practical joke. Pfarr did notify Lieutenant Smith months later when he began to consider that it might not have been a joke based on Waddell's observed work habits subsequent to the incident in question. Pfarr mentioned his concerns to Captain Storton in December of 2013 while discussing details regarding Al 13-004P. Based on this discussion with Captain Storton coupled with Sgt. Pfarr's concerns in hindsight, an Administrative Inquiry was initiated on December 20th, 2013.iasil SUMMARY OF ALLEGATIONS: The following are the allegations against Officer Waddell: A. Conduct Detrimental to the Department If sustained, this allegation would constitute a violation of San Luis Obispo Rules and Regulations Standard of Conduct section IV. I- which states in part, "Department employees shall not conduct themselves in a manner that reflects adversely on the Department, or which discredits the Department, or is detrimental or damaging to the reputation or professional image of the Department. B. Breaking or Removing Vehicle Parts 10852 CVC: No person shall either individually or in association with one or more other persons, willfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner. Violations of City policies and Department Rules and Regulations are cause for Disciplinary action per Municipal Code Section 2.36.320. Violations of the California Vehicle Code are grounds for possible criminal charges. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 558 City of San Luis Obispo Police Department Memorandum EVIDENCE AS TO EACH ALLEGATION: Interview with College Tow Truck Driver Sean Kelly Braft I met with Sean Brady at the Downtown Police Office on December 21, 2013 at 11:04 PM and explained that I needed to talk with him about an internal investigation that resulted from a vehicle accident call on February 22, 2013 at Johnson and Orcutt Road. I told Brady that he was the one who towed the vehicle and he told me he remembered the call. He mentioned that call was a long time ago and did not think he would remember much. I explained that I was looking into the actions of one of our officers. This interview was not tape recorded. Brady told me that he has worked at College Towing off and on for the past seven and a half years and he was dispatched to this collision to tow the only vehicle involved in the collision. Brady said there were numerous officers present when he arrived but he only recognized one who he identified as Colleen Kevany. Brady said that he has known Officer Kevany for years from accident related calls. He said there were a few officers in plain clothes and the others were in regular police uniforms. Brady noticed the vehicle, a Bentley, had rolled over and the officers present told him that they were done with the investigation and that he was able to proceed with towing it. Brady told an officer that he was going to have to drag the damaged vehicle out and roll it back over. Brady then went to move the tow truck so he could start to tow the vehicle. Brady stated that in between moving and "up -righting" the Bentley he was approached by a male officer who he believed was in uniform. Brady doesn't think he would be able to identify the officer. Brady said the officer asked him to borrow a screwdriver. Brady said that he dug through his toolbox on the truck and found a screwdriver and gave it to the officer. Brady said that other officers have, in the past, asked to borrow tools for such things as removing license plates. Brady stated that he was focused on getting the Bentley towable and he really was not looking at whatever anyone else at the scene was doing. He said that while he was hooking up to the front of the Bentley he remembered an officer near the rear of the car, but he is not sure who it was or what he was doing. When I asked Brady to explain this in further details he stated he thought the officer was near the rear passenger area and maybe was looking at the roll -bar feature the car has. Brady does not remember if this was the officer who borrowed the screwdriver. Brady does not remember exactly when but the officer who borrowed the screwdriver handed it back to him and thanked him. I asked Brady why he thought the officer would borrow a screwdriver and he said that he did not know. When I pressed him further he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 559 City of San Luis Obispo Police Department Memorandum said, "If I could use my imagination and I was back in high school I could think it was to remove parts." I asked Brady if he saw any officer remove any parts from the Bentley and he told me he did not. He said that he knows from being a car buff that Bentleys do not have hood ornaments. I asked him what could possibly be removed from a Bentley and he told me that the hubcaps could be removed. Brady told me specifically that he did not see any officer remove any hubcaps from the Bentley. He did say that it would be totally wrong if an officer removed parts to take them for personal use. Brady said his company has strong guidelines regarding this issue and they are not to take anything from a vehicle because they belong to the owner or the insurance company. Brady said he even parked the Bentley inside the College Towing building that night instead of leaving it outside because he was worried someone might steal something from itcsz1. Brady told me he has no idea what the status of the hubcaps or emblems were when he arrived on scene or when he took the car to College Towing on Monterey Street. Brady does not remember any hubcaps or emblems that were on the driver's floorboard or anywhere else in the car when he arrived at the tow yard. I asked Brady if he ever considered asking what the officer needed the screwdriver for and he said, "He is a law enforcement officer so I am not going to question him at all." I asked Brady not to discuss this incident or interview with anyone and he agreed. He also said he would be available if I had further questions. I instructed Brady to contact me if he remembers anything else about the incident. As of this report date Brady has not contacted me. There was no CHP form #180 done on this call because the vehicle was towed pursuant to the accident. The interview lasted 30 minutes and ended at 11:34 PM. Sean Kelly Brady DOB: 04/18/77 3500 Bullock Lane #60 SLO, CA 93401 805)550-8042 Interview with Officer Josh Walsh: I interviewed Officer Walsh in my office on December 31, 2013 at 11:16 PM. The interview was digitally recorded. Officer Walsh told me he remembered the Bentley crash. He was working that night but was not dispatched to the call. He went to the call because he had Communications Technician Lichty riding with him and he wanted to show her the scene. He wanted to show a dispatcher what a major traffic collision scene looked like. Officer Walsh told me he was only at the scene for about 20 minutes and he does not remember any other personnel who were there. He said he did not have a role at the scene and when he left the vehicle's occupants were still being treated. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 560 City of San Luis Obispo Police Department Memorandum Officer Walsh said he did not see any officer do anything illegal or against Department policy while he was there and he does not remember if Officer Waddell was there or not. The interview lasted six minutes and ended at 11:22 PM. Interview with Officer Colleen Kevany: I interviewed Officer Kevany in my office on January 3, 2014 at 8:30 AM. The interview was digitally recorded. Officer Kevany told me she remembered the traffic collision involving the Bentley. She was called out from home because she is a member of the traffic unit callout team and it was believed to be a probable fatal collision. Officer Kevany remembers Officer Waddell being present because he was working that night. She said she was using the Total Station accident diagramming equipment with Waddell and one other officer but she does not remember who that was. She said it was either Officer Cudworth or Sergeant Goodwin. Kevany said that Officer Waddell was in charge of the Total Station equipment and he was controlling the head of the device. Officer Kevany said Officer Waddell was present when the tow truck showed up, but she does not remember if she heard Waddell ask the tow truck driver for a screwdriver. She also does not remember if Waddell actually received a screwdriver from the driver. When I asked Kevany if she saw Officer Waddell remove anything from the vehicle she said, "Yes we were going to take a little symbol off the front I think it was or something like that, a trophy for traffic supposed to be it wasn't anything for personal gain, we were just messing around." I asked Kevany what she meant by stating, 'Ve?" She told me she was " just there" when Waddell said something like "this would be cool to put in Traffic". We knew at that point it wasn't going to be a fatal or any type of major investigation. The car was totaled and it was just kind of a joke". Kevany said she doesn't remember if it was a hood emblem or a rim emblem. She also recalled the idea of taking the emblem was Officer Waddell's. Officer Kevany said the emblem was going to go into the Traffic office and she said, "Look, we got to investigate a Bentley accident". Officer Kevany stated she has -iever seen Officer Waddell take off anything from any other cars. She said, 'We never get to see a Bentley in a crash or a vehicle of this caliber. Kevany said Waddell was going to do it but he was corrected by a supervisor. I asked Officer Kevany if she remembers a supervisor coming up and saying, "You have got to be kidding me. You are not going to put me in this position". Officer Kevany said that Sergeant Pfarr would have said that. Officer Waddell had already removed the vehicle part when this statement was made. Officer Kevany said the taking of the emblem was "definitely not" a joke on Sergeant Pfarr because he was a brand new supervisor in her opinion. Kevany told me when I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 561 City of San Luis Obispo Police Department Memorandum asked that question was the first time she had heard that theory. She also said, "I would hope somebody would not put a supervisor in that position." Kevany said the taking of the part was to have it for a, "traffic trophy." Officer Kevany never saw Officer Waddell place anything into a brown paper bag. She does not remember any phone call occurring between Waddell and Sergeant Pfarr. She did say that she remembers the emblem just getting tossed back into the car and she believes it was just loose in the car. Officer Kevany has never seen Officer Waddell take anything from any vehicles in the past unless they were taken for evidence. I asked Officer Kevany if she was aware if Officer Waddell has a vehicle parts collection at home and she said, "No". I asked Kevany if Pfarr had not been at that scene or had not known about this what does she think would have happened and she said, "I think he would have taken the part and put it like on a board in traffic." Kevany said that is something that we should not be doing and she felt Waddell would know that too. The interview lasted 24 minutes and ended at 8:54 AM. Interview with Officer Robert Cudworth: I interviewed Officer Cudworth in my office on January 7, 2014 at 11:21 AM. The interview was digitally recorded. Officer Cudworth remembers getting called out from home regarding the Bentley collision. He remembers Officers Kevany and Waddell; and Sergeants Pfarr and Goodwin being present and he thinks there might have been a few others. Officer Cudworth assisted with the collision investigation by taking measurements and scene documentation. He said he left at the conclusion of the scene investigation and doesn't remember if the Bentley was still there or not. Officer Cudworth said that Officer Waddell was manning the control unit of the Total Station equipment. I asked Cudworth if he heard Officer Waddell ask the tow truck driver for a screwdriver and he told me that he did. Cudworth said, "Yes, my understanding was that he was going to attempt to or try and take off the Bentley emblem". Cudworth believed that this was Officer Waddell's "idea". Officer Cudworth does not remember ever seeing Waddell with a screwdriver nor did Cudworth see Waddell remove any item from the Bentley. Officer Cudworth never heard Officer Waddell say anything about having a collection of car parts. Cudworth remembers Waddell having a conversation with Sergeant Pfarr. Officer Cudworth believes Pfarr was asking Officer Waddell `what the heck" he was thinking about taking the emblem_ Cudworth also thinks Pfarr told Waddell to, "knock it off." Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 562 City .of San Luis Obispo Police Department Memorandum Officer Cudworth told me if he had seen Officer Waddell take something from the car he would not have thought it was a practical joke. Cudworth said that this was the first time he heard the practical joke theory that might have involved Sergeant Pfarr. He told me that if Waddell took something it would have been for personal interests. Officer Cudworth never saw Off cer Waddell place anything into a brown paper bag, nor did he see Waddell place a brown paper bag in the Bentley. Cudworth is not aware of a phone call between Waddell and Sergeant Pfarr after Pfarr left the scene. Officer Cudworth has never seen Officer Waddell take any items for personal interest from any accident scene, nor has he heard of any collection of car parts that Waddell may or may not have. The interview lasted 29 minutes and ended at 11:50 AM. The digital recorder malfunctioned at the recording time of 11 minutes and 21 seconds. The remainder of the interview was not recorded. Interview with Sergeant Brian Amoroso: I interviewed Sergeant Amoroso in my office on January 7, 2014 at 1201 PM. The interview was digitally recorded. Amoroso told me he was working downtown when the traffic collision call involving the Bentley was dispatched. He said it sounded really bad, so he and Officer Waddell responded to the scene to see if they could help. Sergeant Amoroso went to see if Sergeant Pfarr needed any help regarding procedures or notifications. Waddell responded because he is a member of the traffic collision call -out team. Officer Hyman was the only officer that Sergeant Amoroso remembers seeingwhenhearrived. When Amoroso arrived, the Fire Department was extricating the occupants from the Bentley. Amoroso felt this was the type of traffic collision scene to which the call -out team should be summoned because it possibly involved a fatality. Amoroso stayed on the scene for a little while and then left. He said that Officer Waddell remained there as part of the call -out team. When Sergeant Amoroso left, the Bentley was still there and no other call -out officers had arrived yet. Amoroso left prior to the investigation being initiated by the call -out team. Sergeant Amoroso did not hear Officer Waddell ask the tow truck driver for a screwdriver, nor did he see Waddell obtain a screwdriver from the driver. Amoroso did not see Waddell remove anything from the Bentley, nor did he see Officer Waddell with a brown paper bag. Sergeant Amoroso did not hear Waddell say anything about having a collection of car parts nor did he see Waddell and Sergeant Pfarr having a conversation. Sergeant Amoroso has never seen Officer Waddell take any item from a vehicle in the past. Amoroso does not think Waddell has done anything inappropriately with the DRMO military surplus equipment. Amoroso said that, as Officer Waddell's direct supervisor, he has been exemplary with categorizing and tracking the surplus military items. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 563 City of San Luis Obispo Police Department Memorandum Sergeant Amoroso first knew of the issue with the Bentley emblem when Sergeant Pfarr brought it up to him when Sergeant Villanti was in the promotional process. He said they were talking about who they thought would make a good sergeant. Pfarr told Amoroso about the incident when Waddell took hubcaps off a Bentley at an accident scene. Sergeant Pfarr told Amoroso that Waddell borrowed a screwdriver from a tow truck driver and removed a Bentley emblem from a crashed vehicle. Pfarr told Amoroso that he told Waddell to put the item back while Waddell was still at the accident scene. Sergeant Pfarr told Sergeant Amoroso that he verbally counseled Waddell in the field. Pfarr then called Waddell into the station because he was still feeling uneasy about what had occurred. Pfarr verbally counseled Waddell and left it at tha4cs31. Amoroso stated that Pfarr later told his lieutenant, but nothing ever happened with it. Sergeant Amoroso told me that he remembered having a conversation with Officer Waddell at the Bentley collision scene while they were looking at Pfarr. The conversation was about how funny it would be to play a practical joke on Pfarr because he was a new sergeant. Amoroso was the instigator, but nothing specific was discussed about who would do it or what was to be done. Amoroso stated that the taking of a car part was definitely not discussed. I asked Sergeant Amoroso if Officer Waddell took items off of this car was it a result of Waddell playing a practical joke on PfargGS41. Amoroso said that based on the conversation that he and Waddell had it was the type of activity would be exactly what they would have been referring to as a funny joke that would make a new sergeant flip out. Jcss1Amoroso thought that Waddell taking the emblem was a joke. Amoroso said he could not say 100 percent for sure judging by my question about whether Waddell has a collection of car parts from other traffic accidents. Amoroso said that if that were true he would doubt that it would have anything to do with a practical joke. Amoroso said that if Officer Waddell took an item, there would only be two explanations for it. It was either a joke, or Waddell wanted the emblem. Pfar6cs61 told Amoroso that Waddell never mentioned to him that is was possibly a practical jokekas71. Waddell was just very apologetic toward Pfarr. Pfarr never asked Amoroso if what Waddell did was a practical joke. Sergeant Amoroso told me that about a week and a half prior to this interview that Waddell came over to Amoroso's house, and they were talking in his driveway. At that time, Waddell was apparently unaware of this personnel investigation. Waddell was wondering why he had not heard anything yet, referring to—a--n- unrelated nvestigatiGoGs8l. Amoroso told Waddell that I was working on an Administrative Inquiry. Waddell looked at Amoroso strangely and Amoroso instantly realized that he probably said something that he shouldn't have. Waddell asked Amoroso what he was talking about and Amoroso told him that I was working on something to do with a tow truck driver. Waddell asked Amoroso what it was about and he told him that he didn't remember much from that accident other than we had talked about "messing with" Pfarr. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 564 City of San Luis Obispo Police Department Memorandum Amoroso realized his mistake by telling Waddell about this Administrative Inquiry because Waddell did not know anything about it. Officer Waddell never told Sergeant Amoroso that the emblem issue was a practical joke. Amoroso said that he and Waddell have never talked about the taking of an item one way or another. The only comment that Amoroso remembers Waddell making was that Waddell already went all through this with Pfarr. The interview lasted 37 minutes and ended at 12:38 PM Interview with Officer George Berrios: I interviewed Officer Berrios in my office on January 7, 2014 at 3:08 PM. The interview was digitally recorded. Berrios told me he was not working during the Bentley collision and did not respond to this call. He told me he heard about the accident because other officers were talking in briefing about how the head rests popped and the vehicle's roll bar probably saved the occupant's lives. He told me that he did not know anything about any Bentley emblem or other part until I asked him about it on this date. Officer Berrios was shocked to hear that this personnel investigation was related to Officer Waddell possibly taking a vehicle part from the Bentley for personal gain. Berrios told me he has never seen, nor has he ever heard of Waddell removing or taking any item from a vehicle collision investigation since he has worked with him. Berrios has no knowledge of any vehicle parts collection that Waddell may or may not have. Officer Berrios also told me he has never seen Officer Waddell take anything from the DRMO program for personal gain. Berrios told me that he and Waddell pride themselves on keeping the DRMO stuff accountable because they did not want to lose the program. Officer Berrios told me that he also had not heard anything about a practical joke involving any Bentley part. The interview lasted six minutes and ended at 3:14 PM Interview with Sergeant Janice Goodwin: I interviewed Sergeant Goodwin in my office on January 13, 2014 at 5:19 AM. The interview was digitally recorded. Goodwin told me she was called at home regarding the Bentley collision. She learned that Officer Waddell was already at work and Officers Kevany and Cudworth were enroute from home as part of the call -out team. Sergeant Goodwin went to the scene, and she and Officers Waddell, Cudworth, and Kevany investigated the collision. Goodwin believes a patrol officer was also on -scene to help Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 565 City of San Luis Obispo Police Department Memorandum with traffic control, and thinks thought it might have been Officer Hyman. She stated that Sergeant Pfarr came to the scene once or twice and he brought them coffee. Goodwin said she was there to supervise and also to learn how to investigate a major accident. Sergeant Goodwin told me the investigation did not take as long as they thought it would and she left about 30 m nutes prior to the rest of the call -out team leaving. She does not remember if the Bentley was still present when she left. Officer Waddell's role at the scene was to input the data into the Total Station_ -systems besau-se_he is,4he-©na-wit4_the +nnast-knewledge-of-the-system. Sergeant Goodwin never heard or saw Waddell ask the tow truck driver for a screwdriver. She also never saw him get a screwdriver from the driver. She also never saw Waddell remove anything from the Bentley, nor did she see him with a brown paper bag. I asked Goodwin if she saw Sergeant Pfarr and Officer Waddell conversing at the scene and she said that she might have seen them talking, but she did not know what it was about. She also did not know about a phone call between Pfarr and Waddell after Pfarr left the scene. Sergeant Goodwin has never seen Officer Waddell remove anything from a vehicle other than for evidence and she has no knowledge whether he has a collection of car parts or not. In conclusion Sergeant Goodwin told- me she has no memory of Officer Waddell involved with an emblem and she said she did not even remember a tow truck driver being there. She said if he did take an item it was a stupid thing to doics9i. The interview lasted 14 minutes and ended at 5:33 AM. Interview with Sergeant Chad Pfarr: I interviewed Sergeant Pfarr in my office on January 25, 2014 at 6:46 PM. The interview was digitally recorded. Pfarr told me he responded to the accident involving the Bentleyandhebelieveshewas the second officer there. He initially thought the male occupant was dead deceased and the female was conscious. Sergeant Pfarr contacted Lieutenant Smith to let him know that he would be calling out of the traffic team. Pfarr had the traffic investigation team called out and he remembers Officers Kevany, Chitty, Treanor; and Sergeant Goodwin being at the scene. Sergeant Pfarr told me he was the field supervisor that night and his role was to be the scene supervisor. Pfarr turned the scene over to the call -out team when they showed up. He remembers Officer Waddell and Sergeant Amoroso showing up in the FST truck with the call -out equipment. Officer Hyman was also there. Pfarr left the scene prior to Sergeant Goodwin arriving. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 566 City of San Luis Obispo Police Department Memorandum Sergeant Pfarr remembers that Officer Waddell was setting up the Total Station laser and the Bentley was still there. Pfarr watched as the tow truck driver rolled the Bentley over upright. Sergeant Pfarr initially observed Officer Waddellnessing.iGsior with the emblem but he could not get it off. He believes it could have been the rear trunk deck emblem. Pfarr then heard Waddell ask the tow truck driver for a screwdriver. Pfarr saw Waddell and the tow truck driver walk over to the tow truck. Sergeant Pfarr believes that Officer Kevany could have heard Officer Waddell ask the tow truck driver for a screwdriver. Pfarr then saw Waddell with some sort of tool in his hand and believed it was a screwdriver but that it could have been some sort of pry tool. Sergeant Pfarr heard Officer Waddell make a comment to someone that might have been the tow truck driver. The comment was something like, "Add the emblem to his collection." Pfarr initially thought the removal of this emblem was a part of the accident investigation. When he heard the "collection" comment he thought Waddell was playing a silly joke on him because he was newly promoted and that it was not part of the investigation. Sergeant Pfarr said something like, "Ha ha, funny, jokes over, I am leaving now, I don't want to see you actually do this." Pfarr assumed that Waddell would not finish taking the part. Sergeant Pfarr then got into his vehicle and started to drive away. In his mirror, Pfarr saw Officer Waddell working on the trunk emblem, but did not see him physically pry it off. He then saw Waddell crouch down by one of the wheels of the Bentley and pop off the hubcap. Sergeant Pfarr thought that Officer Waddell put the wheel cover with the Bentley emblem into a brown paper bag and walked away to where the units were parked. Pfarr did not see if Waddell returned the screwdriver to the tow truck driver or not. As Sergeant Pfarr was driving away he called Officer Waddell at 5:08 AM on the cell phone. He stated that before he dialed Waddell's number, Pfarr received a text from Officer Waddell's personal cell phone. Waddell texted Sergeant Pfarr a photo of two items loose on the Bentley floor. There was no text in the message and it only contained the photo. Waddell then answered Pfarr's call and told him that he just sent him a text message. Sergeant Pfarr said something like, "I can't believe you just put me in that situation." Officer Waddell responded by saying that he was just being funny and put it back. Pfarr stated that he is 99% sure that Waddell said thattold him he was joking. He said thatindicated Waddell never said that he was planning on stealing the car part. Pfarr stated he would have handled the situation differently if Officer Waddell had said something like that. Sergeant Parr told Waddell when he was finished at the scene to come and see him in the sergeant's office. I asked Sergeant Pfarr what he thought made Officer Waddell change his mind after Pfarr saw Waddell walking to the FST truck with a brown paper bag containing the vehicle parts he had just removed. Pfarr said that there were a couple of possibilities. One being that it was a-totalactually a joke and Waddell saw Pfarr leaving and was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 567 City of San Luis Obispo Police Department Memorandum going to put the parts back., c r--alt was also possible another officer at the scene told him it was a dumb idea JGsi t1to take the parts. Sergeant Pfarr thought another possibility was that it dawned on Officer Waddell that taking these parts was 'not the best idea Gs,21and maybe he should put them back. Sergeant Pfarr told me he did not tell Officer Waddell to put the items back while he was at the scene because he was leaving when he saw the parts being taken. Pfarr does not believe the items that Waddell removed from the Bentley ever made it to Waddell's patrol vehicle. When Officer Waddell arrived at Sergeant Pfarr's office, Pfarr was angry and Waddell was very apologetic, stating that he used bad judgment- He--saak"hat44e- and was just trying to be funny cisl3l. Pfarr said that Waddell was showing a great deal of remorse and portraying it as a joke that went too far. Sergeant Pfarr asked Waddell what would happen if the tow truck driver was to get in trouble and feel that he had "some dirt" on Officer Waddell. Waddell told Pfarr that he "brushed it 'bve6Gs141" with the tow truck driver and let him know that it was a new sergeant and that it was just a joke. Pfarr and Waddell had about a 15 -minute conversation and Pfarr did not think that this would ever be an issue again. Sergeant Pfarr had a conversation with Officer Kevany after Officer Waddell left his office. Pfarr told Kevany that he did not know if she saw what went on at the scene but he wanted to make sure they were on the same page that it was not ok to take parts from a traffic scene. Officer Kevany was in absolute agreement with Sergeant Pfarr. Kevany never said anything about what Waddell did at the scene. Pfarr told Officer Kevany that he did not want her to leave thinking that ;Officer Waddell was going to get away with this kind of stuff referring to taking parts. Jcs151 Sergeant Pfarr does not know of a collection of parts that Officer Waddell may have, nor has he ever seen Officer Waddell take anything in the past. Pfarr has never seen him take any DRMO equipment in the past. Sever -at Pfarf star thinki•ngthat-he-might--not have u-sed-the-be'st-judgrnent-by not-telfing--a-Lieutenant-afaeut this-mckdent, -,Hejusiq said this was about the time when Waddell was applying for an Investigator position. Pfarr said that he told Lieutenant's Bledsoe and Smith about this separately but within a few minutes of each other. Pfarr told them the reason he did not bring this up earlier was because he thought what Waddell did was a joke. He thought the information was relevant whether it was a joke or not and wanted them aware of what happened with the Bentley parts. Pfarr stated that Waddell was either going to steal the parts or it was a bad joke. Pfarr felt that Waddell's judgment would not make him a good candidate for this position. Pfarr admitted that he might have been naive about these types of things and he started to doubt Waddell's intention with the parts. Pfarr also admitted that had Waddell not put4napplied for Investigations he probably would not have said anything about this incident unless something else had come up later on. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 568 City of San Luis Obispo Police Department Memorandum Sergeant Pfarr told me that Waddell never told him that he was playing a practical joke on him. Pfarr reiterated that Waddell has said gsmade statements like -such as "I was just joking" and "I was just messing around." The interview lasted 56 minutes and ended at 7:42 PM. Interview with Officer Kevin Waddell: I interviewed Officer Waddell on January 27", 2013 at 2:10 PM in the City Council meeting room across from the City Attorney's office at 990 Palm. The interview was digitally recorded. Officer Waddell was represented by his Attorney Alison Berry Wilkinson. Assisting me during the interview was Sergeant Fred Mickel. I read to Officer Waddell the interview admonition along with his Constitutional Rights. Waddell invoked his rights and chose not to speak with me. At this time I ordered him to answer my questions related to this inquiry per Lybarger vs. City of Los Angeles. Officer Waddell said he understood his rights in this matter and signed the Interview Record form. Officer Waddell told me remembers responding to the collision involving the Bentley. He believes Officers Benson, Rodriguez, Hyman, Kevany, Cudworth- and Sergeant Pfarr were there. Allison Berry Wilkinson wanted it noted that this incident happened almost a year ago and Waddell is prejudiced by the passage of time and I will just be getting his best present recollection. He also thinks Sergeant Amoroso came to the scene and might have taken Waddell back to the station to get equipment. Officer Waddell does not remember if Sergeant Goodwin made it to the scene or not. Waddell's role at the scene as a member of the Accident Reconstruction Team was to take over the collision investigation. Officers Cudworth and Kevany were also there as team members and Waddell worked directly with them at the scene. Officer Waddell told me he did ask the tow truck driver for a screwdriver after the Bentley was rolled over onto its wheels and the officers were going to release the vehicle to be towed. He told me he asked for a screwdriver because he was going to use it to take a wheel cover off the'vehiclejcsl7l. Waddell told me it was his idea to take the wheel cover off and it was also his idea to ask for a screwdriver. He does not remember if the tow truck driver asked him why he wanted a screwdriver. Waddell did get a screwdriver from the driver. I asked Officer Waddell if he thought the tow truck driver knew what he yGMIwas doing when he was taking off the wheel cover. Waddell told me he was trying to be very vocal about what he was doing and that he was trying to be dramatic and obvious. with he-was--do4ig -Waddell state44 at he-deinitely remembereds taking off a hubcap. He said, "I remember at one point making reference to a emblem on the car, I don't recall, just I don't remember talking about the emblem itself and getting one off the car but I never took an emblem other than the hubcap." He was not sure but he thinks the hubcap came from a wheel on the rear passenger side of the car. Waddell told me he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 569 City of San Luis Obispo Police Department Memorandum doesn't remember ever trying to take an emblem off on the front of the hood but he remembers referencing it. I asked him what he meant by referencing and he said, "as I said a second ago I remember when I got the screwdriver, talking about the emblem and what it looks like its cool emblem and you could use a, I could use a screwdriver, I bet you could get this off, I bet you that thing comes off, just get behind it and it comes off, and then the hubcap was an easier thing to take off." Waddell did not think that the emblem would even come off with any kind of reasonableness. I then briefly summarized what Waddell had told me so far regarding removing the hubcap and he again said that he made it obvious that he was doing it and that he was talking loud about i4cistql. After Officer Waddell took off the hubcap he put it on top of another hubcap that had come off during the collision. The hubcap that came off during the collision was located on a dirt berm and he does not remember the hubcap's condition. He stated the one he pried off was in fine condition. Waddell said that he did not place anything related to these items in a large brown evidence bag. Waddell did not recall if he put any items related to the investigation into a brown paper bag. He said that neither wheel cover was ever placed into a bag while he was at the scene. He said, "my intention was never to take these items away from the scene.'Icszol He also said he never walked these items to a car. Waddell stated that he was sure the tow truck driver saw him removing the wheel cover because he was being very obvious with what he was doing and he was not intending on hiding his act4GS211. He also believes Officer Benson and Sergeant Pfarr saw him remove the wheel cap. Officer Waddell said the reason he took off the hubcap was that he was playing a prank on Sergeant Pfarr and was trying to do something to get him to respond and react to me, and to get him to tell Waddell to stop doing it. Waddell said he never had any intention on taking the items fo anything and that he had no need for them. He also said his sole reason for that was that he was messing with Pfarr. Waddell admits it was a poor decision due to the timing and the people around. Waddell instigated the prank because of a conversation that he and Sergeant Amoroso had about playing a prank on Pfarr. He said their conversation did not contain any specifics on what the prank would be and he believed the conversation took place that same shift but it could have been the day before. He said the prank was designed to be light hearted and that it had something to do with the close working relationship between the two sergeants. It was because Pfarr was a newer sergeant and the prank was to joke with him and Waddell thought it would be funny. Officer Waddell again stated that was being loud when he was taking the hubcap off and that he was not trying to be secretive. He was referencing the emblem a lot and how cool it was and he was making random comments about the car. He said that he has never retained anything from any prior accident scenes. He does not recall ever saying anything about having a collection of car parts and if he did it would have been in reference to the prank. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 570 City of San Luis Obispo Police Department Memorandum Officer Waddell told me that Officer Benson was close by when he took off.the hubcap and that he had a conversation with him after the fact. He also said that he is positive that Pfarr knew he removed the hubcap. Waddell said that the hubcap was the only item he took off the car. I then asked him if he had tried to remove any other items from the car and he said he had looked at an emblem on the front or the back of the car. He said he did place a screwdriver against the emblem but he realized taking the emblem would cause damage to the car so he went away. He said he did not want to damage the car. Officer Waddell told me he does not remember making a statement about having a collection of parts. He also said he doesn't remember having any other conversations at the scene except for Sergeant Pfarr saying to Waddell, "I can't be here for this" and, "I'm not going to be a part of this." At this time Pfarr walked away and got in his car and left. Officer Waddell thought Pfarr was referring to him taking the car part off the car. Officer Waddell told me as Pfarr was walking away he told Pfarr that he was just messing around but he received no acknowledgement from Pfarr. Waddell doesn't know if Pfarr heard him or not. Waddell stated that Sergeant Pfarr did not tell him to put the part back while he was at the scene. Officer Waddell thought his prank was not well-received byPfarrbasedonPfarr's comments, Pfarr walking away and Pfarr not acknowledging Waddell's comment about messing with him. Officer Waddell said that after the exchange with Sergeant Pfarr he gave the screwdriver back to the tow truck driver and he put the hubcap on the driver's seat of the Bentley. He said he made a point with the tow truck driver what he was doing. GS221Waddell said that he told the tow truck driver that he didn't have a need for the hubcap from a Bentley and that he was just messing around. He said the tow truck driver then awkwardly chuckled. Officer Waddell said that after Sergeant Pfarr left the scene he called Waddell on his personal cell phone. Pfarr told Waddell that he put him in a bad spot and that he needed to put the parts back. Waddell said he told Pfarr that he had already put the car parts back. Waddell said he told Sergeant Pfarr that he was just messing around with him. Waddell said Pfarr could have asked him to come and see him at the station but he was not sure. Officer Waddell stated that when he returned to the station he met with Sergeant Pfarr in the sergeant's office. He said that Pfarr told him that it was a bad ;ideajcs231 and he put him in a bad spot and that junior officers were present. Pfarr asked him what they were going to think. Sergeant Pfarr told Officer Waddell that he spoke to everyone who was there to reassure everyone that he handled this incident with Waddell. Waddell saw Officer Benson in the parking lot and assured him that he did not want to put anyone in a bad spot and that he had ro intention of taking anything. Waddell expressed to Benson that he made a bad decision. asked Waddell if when he was on the phone or at the station with Pfarr did he tell Pfarr why he took the car partskcsza1. Waddell said of replied he was just messing around and joking 'icszsihe did not get into specifics because he thought Pfarr Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 571 City of San Luis Obispo Police Department Memorandum was upset with him and the situation. Waddell did not bring up the previously mentioned reasons for the prank to 1Ias26JPfarr. Waddell stated that at the end of the night Pfarr did not know this was a practical joke on him. Officer Waddell does not remember texting Sergeant Pfarr a photo of the hubcap back in the Bentley but he could have. Officer Waddell said that he spoke to Sergeant Amoroso weeks ago about this incident. According to Waddell, Amoroso was approached by Sgt. Pfarr and told that he may be interviewed about this incident. Amoroso told Waddell to be honest and don't feel like you needed to protect him in any way in relation to their conversation about the prank. Ameroso~told-Wa{ddelVtha -4-A r was-goi Kj--tri- beip-trule-fEw-being-a--part ©f raising the-p'ra4*-idea-then-sobe-it-.When I asked Waddell if he and Amoroso discussed this being a prank three weeks ago he told me that Amoroso mentioned that to him. Waddell told Amoroso that it was a prank. Amoroso was the first one to tell him this investigation was going on. Waddell stated he told Amoroso about it being a prank the night after the braslicsz71. Officer Waddell stated he has never taken any vehicle parts before. He said he has only used DRMO equipment for work and not for personal reasons. He said that he has two jackets that he wears during SWAT. Berry -Wilkinson objected that there was no prior notice given about an accusation that he has any equipment improperly at home. She claimed these questions were outside the scope of this investigation and that they weren't proper to be asked. She recommended the Department strike those from the investigation. Officer Waddell summarized this interview by stating it was his complete intention at the time to prank Sergeant Pfarr and that he never intended on taking anything. He realized that night that he made a bad choice and understood the position in which it put Sergeant Pfarr. Officer Waddell told me he would have put the hubcap back even if Pfarr had not indicated his dislike for the situation. Waddell told me the end result would have been the same and the hubcaps wot;ld have been back in the car. Officer Waddell said he would have gone to Pfarr if Pfarr had not called him about the incident. Officer Waddell again stated that the wheel cover was already back in the car when Pfarr called him on the telephone. He also said that had the conversation between he and Amoroso regarding pranking Sgt. Pfarr never come up ,he doesn't think he would have taken the wheel Cove4(,S281. He said it was his choice to take the wheel cover and he takes responsibility for that but he doesn't think he would have done that. The interview lasted 73 minutes and ended at 3:23 PM. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 572 City of San Luis Obispo Police Department Memorandum Interview with Lieutenant John Bledsoe: I interviewed Lieutenant Bledsoe in my office on February 5, 2014 at 11:20 AM. The interview was digitally recorded. Bledsoe told me he first heard of this incident a few months ago when Sergeant Pfarr came to his office to express his feelings on possible candidates for the upcoming Investigations and Special Enforcement Team (SET) openings. Bledsoe remembers their discussion lasted about ten to fifteen minutes. Pfarr wanted to specifically discuss Officer Waddell because Waddell had expressed an interest in an investigator position. Sergeant Pfarr told Bledsoe that he had integrity concerns about Waddell because Waddell had planned to take a car part from a traffic collision scene that he was investigating. !Ics29iLieutenant Bledsoe believes the item was some sort of hood ornament and that Officer Waddell told Sergeant Pfarr that he wanted to take it as some sort of memorabilia. Pfarr thought that Waddell might have been serious about taking the item for a souvenir even know Waddell had told him it was a joke cs3o1. Bledsoe thinks that Pfarr told Waddell at the scene to put the item back. Lieutenant Bledsoe told me that Pfarr told him that if Waddell had taken the item he would have had much more of an issue with it. Sergeant Pfarr told Lieutenant Bledsoe that he called Officer Waddell into his office as soon as Waddell had cleared the collision scene. Bledsoe got the impression that Pfarr resolved the issue that night by speaking to Officer Waddell about the issue. Lieutenant Bledsoe asked Pfarr if he had spoken to Lieutenant Smith, and Pfarr said that he had not. Bledsoe directed Sergeant Pfarr to tell Smith about the incident. Bledsoe's impression was that Pfarr wasn't certain about Waddell intentionally taking the part, ortakingitasajokejas311. The interview lasted 11 minutes and ended at 11.31 AM. Interview with Officer Greg Benson: I interviewed Officer Benson in my office on February 5, 2014 at 11.55 AM. The interview was digitally recorded. Benson told me he was not dispatched to the traffic collision at Orcutt and Johnson but he went by there to see the damage to the vehicle. He told me that Officers Kevany, Waddell; and Sergeant Pfarr were there when he arrived. He said other officers could have been there but he doesn't remember who. Officer Benson told me he was at the scene less than ten minutes. He said the tow truck had just gotten there and they were working on dragging the vehicle out from where it crashed. He doesn't remember if Officer Cudworth or Sgt. Goodwin was there. Officer Waddell was over by the Bentley when OffiGer Benson he arrived.When asked what-Wadde-lf-was-doing. I askq-OLLo? .., Benson said, "He tried prying off one of the rear emblems to the vehicle." Officer Benson described the rear emblem that was on the lid of the trunk and he thinks the vehicle was upright. Officer Waddell was trying to get the emblem off, but the emblem was part of the locking mechanism of the trunk. Benson was standing about five feet from Waddell when he was prying the emblem and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 573 City of San Luis Obispo Police Department Memorandum Waddell tried to remove the emblem for about one minute. Benson does not remember Officer Waddell saying anything during this time. Officer Benson told me that he remembers Sergeant Pfarr and he looked at each [GS33]other and wondered if Waddell was really doing this -- referring to Officer Waddell removing a car part. Officer Benson remembers Officer Waddell asking the tow truck driver for a screwdriver. He said that Waddell did have something that he was using. Benson said that Officer Waddell gave up on the trunk emblem and that he moved to something else. Benson thought Officer Waddell then tried to remove the steering wheel emblem. He got something from the car that Sergeant Pfarr made him put it back. Officer Benson also saw Waddell around one of the wheels. Officer Benson said that he couldn't be sure, but he thought Officer Waddell was there to get the Bentley emblem from the wheels. He did not remember if he used a tool or not with the wheel cover. Benson saw Waddell with a vehicle part in his hands but he doesn't remember what part it was. Officer Benson stated it was a vehicle part with the winged "B" for Bentley in the center. He has never heard of Officer Waddell having a parts collection. Officer Benson told me he observed Sergeant Pfarr confront Officer Waddell and Benson believes he could kind of tell what was being said. Benson believes that Sergeant Pfarr was telling Officer Waddell that he did not think it was appropriate what he was doing and he should put back what he took. Waddell then placed the item inside the vehicle. It was either the center cap of the wheel or the steering wheel emblem. Officer Benson said, For some reason, I want to say that he took out his knife and cut like a piece out of the leather that was off the steering wheel but I can't remember. He got something with an emblem on 1US34jit". Benson never saw Officer Waddell put anything in a bag. Benson saw Waddell put the item back in the car but there were also parts on the tow truck so he could have also put the part there. Officer Benson believes Sergeant Pfarr said, "On that note, let's get out of here before we get involved in his IA or that IA." Officer Benson thought Pfarr was referring to Officer Waddell trying to get parts off of a vehiclejoS351. Benson and Sergeant Pfarr then left the scene. Benson said he thinks that he and Sergeant Pfarr left the scene at the same time, and Officers Kevany and Waddell were still there. Officer Benson knows was confident the tow truck driver saw Officer Waddell removing items because the tow truck driver and Waddell were talking about Waddell taking the par Gs361. Benson believes that Officer Kevany witnessed the taking of the emblem of the car. I asked Officer Benson what he thought was the motive for Officer Waddell removing the part and he said that he believes that Waddell thought the car was totaled and there was no value to the vehicle. He thought Waddell was taking the part for a souvenir. He remembers Officer Waddell looking for some kind of emblem to take. He also remembers the cloth emblem had come off the steering wheel during the accident and it had the same Bentley logo on it. Benson thinks Waddell was either cutting or ripping the rest of the emblem off the steering wheel cover. Officer Benson said there would be no other reason Waddell took the part off the vehicle. I asked Benson if he thought Waddell intended on booking the part as evidence if he had left the scene with Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 574 City of San Luis Obispo Police Department Memorandum the part. Officer Benson told me "no" so I then asked him where he thought the part would have ended up. Benson said, "In his personal belongings." Benson said that Waddell was not being secretive when he was attempting to take the parts. Officer Benson said that he could not understand how this incident could have been a joke. He did not have any conversation with Sergeant Pfarr about it being a joke. Benson said that Pfarr seemed, "pretty pissed" that Officer Waddell put him in that position. Benson described Pfarr turning red and getting really quiet and this is different for Sergeant Pfarr because he is always so nice. Officer Benson does not know anything about a text message from Waddell to Sergeant Pfarr nor does he know about a phone call from Pfarr to Waddell. Officer Benson has no knowledge whether Officer Waddell has a collection of car parts or not, nor has he ever seen Waddell take any items. He also has no information on anyDRMOequipmenthandledbyWaddell. Officer Benson had not heard of this incident again until I asked him about it today. Benson believes he witnessed the whole incident. He believes Officer Waddell attempted to take the part for personal gain. Benson said that he would classify the taking of the Bentley part as theft. Officer Benson just assumed that Waddell had been written up and the issue was over. He did not know there was an Administrative Inquiry underway. The interview lasted 29 minutes and ended at 12:24 PM. Interview with Lieutenant Jeff Smith: I interviewed Lieutenant Smith in my office on February 13' 2014 at 5:02 PM. The interview was digitally recorded. Smith told me he was first made aware of this incident when Sergeant Pfarr came into his office and told him about it. Smith does not remember the exact date of this meeting but it occurred sometime around the last Investigations and SET special assignment testing process. This meeting lasted about five minutes and Lieutenant Smith hasd a vague recollection of his conversation with Pfarr. Sergeant Pfarr admitted to Smith that he should have told him about this incident earlier. Pfarr went on to tell Lieutenant Smith what ha-Raened-had occurred at the collision that involved the Bentley. Smith remembers this collision because Sergeant Pfarr called him at home that night to inform him that a major collision had occurred. During the meeting in Smith's office, Sergeant Pfarr told him that when he arrived at the collision scene he saw Officer Waddell carrying one of the hubcaps and walking towards Pfarr. He asked Waddell what he was doing and Waddell told him that he was just messingjsc371 with him. Sergeant Pfarr told Officer Waddell to put the item back and that it wasn't funny. Pfarr told Lieutenant Smith that he thought that he handled Officer sc38i Waddell ta-king-theISC391 vehicle parts that day and he did not think -really believe that Waddell was really going to take the --any parts. Pfarr thought -believed that Waddell was playing a practical joke on him becaL+se-because of the fact that he was a new sergeant. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 575 City of San Luis Obispo Police Department Memorandum Lieutenant Smith believesd that Sergeant Pfarr brought this incident up—to his attentionhim months later because Pfarr had experienced some integrity issues with Waddell. Waddell was doing- volunteerin for a lot -number of overtime shifts in the downtown for the ( Community Action Team)CAT shifts. and Smith expressed that he had made it clear to his sergeants that l-wantedhis and mere that those officers would be in the downtown for the entire four hour shift When 'Norkinq the -CAT details. During i ne occasion Pfarr Caught Waddell at the station during one of these shifts watching a movie and Waddell told him that he had just finished his lunch. Pfarr told Waddell that since it is only a four hour shift yawhe should only get be eligible For a 15 minute break. There were also a--GGuple-of-time-, other occasions where Waddell either came to work late or left early. Pfarr started -began to have concerns with sGme`,r t-l-e-pattern-s--that-Waddell -was shewi g due to these t es of incidents. Sesause-vf-Due to these concerns, Smith believes that Pfarr reflected back on this incident and be an to questioning whether it was truly a practical joke or Gould-hethe _possibility that he really-have-been-tak4ng-a-part intended in removin and keeping arts from the wrecked vehicle. Smith remembers recalled that Pfarr wasn't sure at the time whether it was a practical joke or not. Smith thinks -believed that Waddell might have told Pfarr that he was going to take one of the wrecked vehicles hubcaps and that than Waddell wen"nd-grabbed then went and removed one the hu )cap from the vehicle. Smith said that Pfarr stated something -like to the effect of , "knock it off". Pfarr -but then he saw Waddell carryingitthehubcaptowardsh4sWaddell's awehicle. Smith believes that Pfarr teld-did tell him that Waddell did p the-Pa4t the hubcap in a brown paper bag and started -be an walking toward his vehicle. At this point Pfarr began to questioned whether this was atruly a practical joke or natsomething more. Waddell then stated he was just "messingwithhimandhethen put the -p 4hubcap back. Smith does -did not remer-r ber recall if Pfarr mentioned that a -Waddell a text message him from Waddell with a photo of the item back in the Bentley. Smith did not get the impression that Pfarr was minimizing the situation when he told him about it months later. Smith believes Pfarr came forward because he was having a lot of pfoblems issues with Waddell on the weekends and Smith had told Pfarr that he needed to hold Waddell accountable for his actions_ Pfarr never mentioned to Smith the comment about an IA that he and Benson discussed at the scene. The interview lasted 13 minutes and ended at 5:15 PM. CONCLUSION; During the course of this investigation I concluded that there is overwhelming evidence to show that Officer Waddell knowingly and willfully attempted to remove a vehicle part from a vehicle that did not belong to him_ This was witnessed by other employees and at least one citizen. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 576 City of San Luis Obispo Police Department Memorandum I recommend that Allegafion A and B be sustained and this case should be forwarded to Captain Chris Staley for final disposition. EXHIBITS: 1) Compact Disc with recorded interviews 2) Memo from Sergeant Pfarr to Captain Storton (attached to file) 3) Memo from Captain Storton to Lieutenant Proll (attached below) EXHIBIT #3 July 14, 2015MaFGh 26. MaFGh 24, 2044 To: Lieutenant Bill Proll From: Captain Keith Storton Subject: Waddell Investigation In December of 2013 Sgt. Pfarr had come to my office and discussed an encounter he had with Oft. Waddell in February of 2013. Sgt. Pfarr relayed that he was a night watch Sergeant on duty when a serious traffic collision occurred involving an expensive Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 577 City of San Luis Obispo Police Department Memorandum Bentley. The nature of the collision required the call -out of the Police Department's Major Accident Team which included Ofc. Waddell. At some point while the team was investigating the collision Sgt. Pfarr happened to stop by to see if the team needed anything. While on scene he noticed Ofc. Waddell remove a Bentley emblem from the vehicle with a screwdriver. Sgt. Pfarr felt this was odd as the emblem had nothing to do with the collision and he was uncertain as to why Ofc. Waddell was removing it_ He noticed a bag near Ofc. Waddell that he thought contained other vehicle pieces. Sgt. Pfarr approached Ofc. Waddell to question him about the emblem. Ofc. Waddell indicated to Sgt. Pfarr he was retaining the piece for his "collection". Sgt. Pfarr was shocked in the response and thought that he must be kidding. He told Ofc. Waddell to put the emblem back and left the scene. Sgt. Pfarr never saw Ofc. Waddell put the vehicle emblem back, however indicated Ofc. Waddell sent him a text message with a photo of the part back in the car. Sgt. Pfarr had called Ofc. Waddell into his office a short time later to discuss the incident. He told Ofc. Waddell that the taking of the car parts, joke or not, was inappropriate. He told Ofc. Waddell that as far as he was concerned the issue was resolved. He would not be sharing the information with anyone else. Nothing further wasdone. Sgt. Pfarr indicated this issue involving Ofc. Waddell has bothered him for some time. He felt that Ofc. Waddell had truly intended to remove the Bentley emblem for his own personal use but Ofc. Waddell played it off as a joke because he had caught him. Sgt. Pfarr was so concerned he later went to Lt. Bledsoe and Lt. Smith (sometime around September of 2013) to explain the events that took place. He is not aware if Lt. Bledsoe or Lt. Smith had done anything with the information once they received it. I told Sgt. Pfarr this was the first that I had heard about the incident and I was concerned about the allegations. I felt the incident needed to be investigated further. I did not question Sgt. Pfarr in further detail and informed him not to discuss the matter with anyone else unless directed to do so. He understood and we concluded our discussion. On December 20, 2013 1 pulled an Administrative Investigation tracking number and assigned the investigation to your attention. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 578 City of San Luis Obispo Police Department Memorandum Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 579 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 580 f)p Memorandum r^ix n Service, Pride. lite;;riry" February 28, 2014 To: Chief Gesell Via: Captain Staley From: Lieutenant Proll Subject: Administrative Inquiry Officer Waddell INTRODUCTION: IFMYOfsantiYOsiso Police Department 1042 Walnut SLO, CA 93401 805) 781-7317 In December of 2013 Sergeant Pfarr reported to Captain Storton that Officer Waddell attempted to take a vehicle part from a vehicle while investigating a traffic accident in February of 2013. It was also mentioned that Officer Waddell might have a collection of car parts that he has taken from other accident scenes. I was assigned by CaptainStortontoinvestigate these allegations. INTERVIEWS The persons listed below were interviewed chronologically, independently of one another. 1. College Towing Driver Sean Brady 2. Officer Josh Walsh 3. Officer Colleen Kevany 4. Officer Robert Cudworth 5. Sergeant Brian Amoroso 6. Officer George Berrios 7. Sergeant Janice Goodwin 8. Sergeant Chad Pfarr 9. Officer Kevin Waddell 10. Lieutenant John Bledsoe 11. Officer Greg Benson 12. Lieutenant Jeff Smith Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 581 City of San Luis Obispo Police Department Memorandum SYNOPSIS: On December 20, 2013 Captain Storton assigned me this Administrative InquiryinvolvingOfficerKevinWaddell. This case involves Officer Waddell removing a part from a vehicle that had been involved in a traffic collision that he investigated. Officer Waddell had removed a hubcap with a Bentley emblem from the car. Sergeant Pfarr initially believed that Waddell did this as a joke. Pfarr instructed Waddell to put the hubcap back and the officer did so. At the time, Sergeant Pfarr was in his third week as a newly promoted probationary sergeant and chose to verbally counsel Officer Waddell for what Pfarr considered to be an inappropriate joke. Pfarr did not initially notify his supervisor, Lieutenant Smith, because he believed what Waddell did was an ill- conceived practical joke. Pfarr did notify Lieutenant Smith months later when he began to consider that it might not have been a joke based on Waddell's observed work habits subsequent to the incident in question. Pfarr mentioned his concerns to Captain Storton in December of 2013 while discussing details regarding All 13-004P. Based on this discussion with Captain Storton coupled with Sgt. Pfarr's concerns in hindsight, an Administrative Inquiry was initiated on December 20th, 2013.cs11 SUMMARY OF ALLEGATIONS: The following are the allegations against Officer Waddell: A. Conduct Detrimental to the Department If sustained, this allegation would constitute a violation of San Luis Obispo Rules and Regulations Standard of Conduct section IV. I- which states in part, "Department employees shall not conduct themselves in a manner that reflects adversely on the Department, or which discredits the Department, or is detrimental or damaging to the reputation or professional image of the Department. B. Breaking or Removing Vehicle Parts 10852 CVC: No person shall either individually or in association with one or more other persons, willfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner. Violations of City policies and Department Rules and Regulations are cause for Disciplinary action per Municipal Code Section 2.36.320. Violations of theCaliforniaVehicleCodearegroundsforpossible criminal charges. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 582 City of San Luis Obispo Police Department Memorandum EVIDENCE AS TO EACH ALLEGATION: Interview with College Tow Truck Driver Sean Kelly Brady: I met with Sean Brady at the Downtown Police Office on December 21, 2013 at 11:04 PM and explained that I needed to talk with him about an internal investigation that resulted from a vehicle accident call on February 22, 2013 at Johnson and Orcutt Road. I told Brady that he was the one who towed the vehicle and he told me he remembered the call. He mentioned that call was a long time ago and did not think he would remember much. I explained that I was looking into the actions of one of our officers. This interview was not tape recorded. Brady told me that he has worked at College Towing off and on for the past seven and a half years and he was dispatched to this collision to tow the only vehicle involved in the collision. Brady said there were numerous officers present when he arrived but he only recognized one who he identified as Colleen Kevany. Brady said that he has known Officer Kevany for years from accident related calls. He said there were a few officers in plain clothes and the others were in regular police uniforms. Brady noticed the vehicle, a Bentley, had rolled over and the officers present told him that they were done with the investigation and that he was able to proceed with towing it. Brady told an officer that he was going to have to drag the damaged vehicle out and roll it back over. Brady then went to move the tow truck so he could start to tow the vehicle. Brady stated that in between moving and "up -righting" the Bentley he was approached by a male officer who he believed, was in uniform. Brady doesn't think he would be able to identify the officer. Brady said the officer asked him to borrow a screwdriver. Brady said that he dug through his toolbox on the truck and found a screwdriver and gave it to the officer. Brady said that other officers have, in the past, asked to borrow tools for such things as removing license plates. Brady stated that he was focused on getting the Bentley towable and he really was not looking at whatever anyone else at the scene was doing. He said that while he was hooking up to the front of the Bentley he remembered an officer near the rear of the car, but he is not sure who it was or what he was doing. When I asked Brady to explain this in further details he stated he thought the officer was near the rear passenger area and maybe was looking at the roll -bar feature the car has. Brady does not remember if this was the officer who borrowed the screwdriver. Brady does not remember exactly when but the officer who borrowed the screwdriver handed it back to him and thanked him. I asked Brady why he thought the officer would borrow a screwdriver and he said that he did not know. When I pressed him further he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 583 City of San Luis Obispo Police Department Memorandum said, "If I could use my imagination and I was back in high school I could think it was to remove parts." I asked .Brady if he saw any officer remove any parts from the Bentley and he told me he did not. He said that he knows from being a car buff that Bentleys do not have hood ornaments. I asked him what could possibly be removed from a Bentley and he told me that the hubcaps could be removed. Brady told me specifically that he did not see any officer remove any hubcaps from the Bentley. He did say that it would be totally wrong if an officer removed parts to take them for personal use Brady said. his company has strong guidelines regarding this issue and they are not to take anything from a vehicle because they belong to the owner or the insurance company. Brady said he even parked the Bentley inside the College Towing building that night instead of leaving it outside because he was worried someone might steal something from itGsa1. Brady told me he has no idea what the status of the hubcaps or emblems were when he arrived on scene or when he took the car to College Towing on Monterey Street. Brady does not remember any hubcaps or emblems that were on the driver's floorboard or anywhere else in the car when he arrived at the tow yard. I asked Brady if he ever considered asking what the officer needed the screwdriver for and he said, "He is a law enforcement officer so I am not going to question him at all." I asked Brady not to discuss this incident or interview with anyone and he agreed. He also said he would be available if I had further questions. I instructed Brady to contact me if he remembers anything else about the incident. As of this report date Brady has not contacted me. There was no CHP form #180 done on this call because the vehicle was towed pursuant to the accident. The interview lasted 30 minutes and ended at 11:34 PM. Sean Kelly Brady DOB: 04/18/77 3500 Bullock Lane #60 SLO, CA 93401 805)550-8042 Interview with Officer Josh Walsh: I interviewed Officer Walsh in my office on December 31, 2013 at 11:16 PM. The interview was digitally recorded. Officer Walsh told me he remembered the Bentley crash. He was working that night but was not dispatched to the call. He went to the call because he had Communications Technician Lichty riding with him and he wanted to show her the scene. He wanted to show a dispatcher what a major traffic collision scene looked like. Officer Walsh told me he was only at the scene for about 20 minutes and he does not remember any other personnel who were there. He said he did not have a role at the scene and when he left the vehicle's occupants were still being treated. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 584 City of San Luis Obispo Police Department Memorandum Officer Walsh said he did not see any officer do anything illegal or against Department policy while he was there and he does not remember if Officer Waddell was there or not. The interview lasted six minutes and ended at 11:22 PM. Interview with Officer Colleen Kevany: I interviewed Officer Kevany in my office on January 3, 2014 at 8:30 AM. The interview was digitally recorded. Officer Kevany told me she remembered the traffic collision involving the Bentley. She was called out from home because she is a member of the traffic unit callout team and it was believed to be a probable fatal collision. Officer Kevany remembers Officer Waddell being present because he was working that night. She said she was using the Total Station accident diagramming equipment with Waddell and one other officer but she does not remember who that was. She said it was either Officer Cudworth or Sergeant Goodwin. Kevany said that Officer Waddell was in charge of the Total Station equipment and he was controlling the head of the device. Officer Kevany said Officer Waddell was present when the tow truck showed up, but she does not remember if she heard Waddell ask the tow truck driver for a screwdriver. She also does not remember if Waddell actually received a screwdriver from the driver. When I asked Kevany if she saw Officer Waddell remove anything from the vehicle she said, "Yes we were going to take a little symbol off the front I think it was or something like that, a trophy for traffic supposed to be it wasn't anything for personal gain, we were just messing around." I asked Kevany what she meant by stating, "we?" She told me she was "just there" when Waddell said something like "this would be cool to put in Traffic". We knew at that point it wasn't going to be a fatal or any type of majorinvestigation. The car was totaled and it was just kind of a joke". Kevany said she doesn't rememberif it was a hood emblem or a rim emblem. She also recalled the idea of taking the emblem was Officer Waddell's. Officer Kevany said the emblem was goingtogointotheTraffic office and she said, "Look, we got to investigate a Bentleyaccident". Officer Kevany stated she has never seen Officer Waddell take off anything from anyothercars. She said, "We never get to see a Bentley in a crash or a vehicle of this caliber. Kevany said Waddell was going to do it but he was corrected by a supervisor. I asked Officer Kevany if she remembers a supervisor coming up and saying, "You have got to be kidding me. You are not going to put me in this position". Officer Kevany said that Sergeant Pfarr would have said that. Officer Waddell had already removed the vehicle part when this statement was made. Officer Kevany said the taking of the emblem was "definitely not" a joke on Sergeant Pfarr because he was a brand new supervisor in her opinion. Kevany told me when I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 585 City of San Luis Obispo Police Department Memorandum asked that question was the first time she had heard that theory. She also said, "I would hope somebody would not put a supervisor in that position." Kevany said the taking ofthepartwastohaveitfora, "traffic trophy." Officer Kevany never saw Officer Waddell place anything into a brown paper bag. She does not remember any phone call occurring between Waddell and Sergeant Pfarr. She did say that she remembers the emblem just getting tossed back into the car and she believes it was just loose in the car. Officer Kevany has never seen Officer Waddell take anything from any vehicles in the past unless they were taken for evidence. I asked Officer Kevany if she was aware if Officer Waddell has a vehicle parts collection at home and she said, "No". I asked Kevany if Pfarr had not been at that scene or had not known about this what does she think would have happened and she said, "I think he would have taken the part and put it like on a board in traffic." Kevany said that is something that we should not be doing and she felt Waddell would know that too. The interview lasted 24 minutes and ended at 8:54 AM Interview with Officer Robert Cudworth: I interviewed Officer Cudworth in my office on January 7, 2014 at 11:21 AM. The interview was digitally recorded. Officer Cudworth remembers getting called out from home regarding the Bentley collision. He remembers Officers Kevany and Waddell; and Sergeants Pfarr and Goodwin being present and he thinks there might have been a few others. Officer Cudworth assisted with the collision investigation by taking measurements and scene documentation. He said he left at the conclusion of the scene investigation and doesn't remember if the Bentley was still there or not. Officer Cudworth said that Officer Waddell was manning the control unit of the TotalStationequipment. I asked Cudworth if he heard Officer Waddell ask the tow truck driver for a screwdriver and he told me that he did. Cudworth said, "Yes, my understanding was that he was going to attempt to or try and take off the Bentleyemblem". Cudworth believed that this was Officer Waddell's "idea". Officer Cudworth does not remember ever seeing Waddell with a screwdriver nor did Cudworth see Waddell remove any item from the Bentley. Officer Cudworth never heard Officer Waddell say anything about having a collection of car parts. Cudworth remembers Waddell having a conversation with Sergeant Pfarr. Officer Cudworth believes Pfarr was asking Officer Waddell "what the heck" he was thinking about taking the emblem. Cudworth also thinks Pfarr told Waddell to, "knock it 0 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 586 City of San Luis Obispo Police Department Memorandum Officer Cudworth told me if he had seen Officer Waddell take something from the car he would not have thought it was a practical joke. Cudworth said that this was the first time he heard the practical joke theory that might have involved Sereant Pfarr. He told me that if Waddell took something it would have been for personal interests. Officer Cudworth never saw Officer Waddell place anything into a brown paper bag, nordidheseeWaddellplaceabrownpaperbagintheBentley. Cudworth is not aware of a phone call between Waddell and Sergeant Pfarr after Pfarr left the scene. Officer Cudworth has never seen Officer Waddell take any items for personal interest from any accident scene, nor has he heard of any collection of car parts that Waddell may or may not have. The interview lasted 29 minutes and ended at 11:50 AM. The digital recorder malfunctioned at the recording time of 11 minutes and 21 seconds. The remainder ofthe interview was not recorded. Interview with Sergeant Brian Amoroso: I interviewed Sergeant Amoroso in my office on January 7, 2014 at 1201 PM. The interview was digitally recorded. Amoroso told me he was working downtown when the traffic collision call involving the Bentley was dispatched. He said it sounded really bad, so he and Officer Waddell responded to the scene to see if they could help. Sergeant Amoroso went to see if Sergeant Pfarr needed any help regarding procedures or notifications. Waddell responded because he is a member of the traffic collision call -out team. Officer Hyman was the only officer that Sergeant Amoroso remembers seeingwhenhearrived. When Amoroso arrived, the Fire Department was extricating theoccupantsfromtheBentley. Amoroso felt this was the type of traffic collision scene to which the call -out team should be summoned because it possibly involved a fatality. Amoroso stayed on the scene for a little while and then left. He said that Officer Waddell remained there as part of the call -out team. When Sergeant Amoroso left, the Bentleywasstillthereandnoothercall -out officers had arrived yet. Amoroso left prior to theinvestigationbeinginitiatedbythe call -out team. Sergeant Amoroso did not hear Officer Waddell ask the tow truck driver for a screwdriver, nor did he see Waddell obtain a screwdriver from the driver. Amoroso did not see Waddell remove anything from the Bentley, nor did he see Officer Waddell with a brown paper bag. Sergeant Amoroso did not hear Waddell say anything about having a collection of car parts nor did he see Waddell and Sergeant Pfarr having aconversation. Sergeant Amoroso has never seen Officer Waddell take any item from a vehicle in the past. Amoroso does not think Waddell has done anything inappropriatelywith the DRMO military surplus equipment. Amoroso said that, as Officer Waddell"s direct supervisor, he has been exemplary with categorizing and tracking the surplusmilitaryitems. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 587 City of San Luis Obispo Police Department Memorandum Sergeant Amoroso first knew of the issue with the Bentley emblem when Sergeant Pfarr brought it up to him when Sergeant Villanfi was in the promotional process. He said they were talking about who they thought would make a good sergeant. Pfarr told Amoroso about the incident when Waddell took hubcaps off a Bentley at an accident scene. Sergeant Pfarr told Amoroso that Waddell borrowed a screwdriver from a tow truck driver and removed a Bentley emblem from a crashed vehicle. Pfarr told Amoroso that he told Waddell to put the item back while Waddell was still at the accident scene. Sergeant Pfarr told Sergeant Amoroso that he verbally counseled Waddell in the field. Pfarr then called Waddell into the station because he was still feeling uneasy about what had occurred. Pfarr verbally counseled Waddell and left it at thatkas31. Amoroso stated that Pfarr later told his lieutenant, but nothing ever happened with it. Sergeant Amoroso told me that he remembered having a conversation with Officer Waddell at the Bentley collision scene while they were looking at Pfarr. The conversation was about how funny it would be to play a practical joke on Pfarr because he was a new sergeant. Amoroso was the instigator, but nothing specific was discussed about who would do it or what was to be done. Amoroso stated that the taking of a car part was definitely not discussed. I asked Sergeant Amoroso if Officer Waddell took items off of this car was it a result of Waddell playing a practical joke on 'Pfaro(isal. Amoroso said that based on the conversation that he and Waddell had it was the type of activity would be exactly what they would have been referring to as a funny joke that would make a new sergeant flip out. JGs51Amoroso thought that Waddell taking the emblem was a joke. Amoroso said he could not say 100 percent for sure judging by my question about whether Waddell has a collection of car parts from other traffic accidents. Amoroso said that if that were true he would doubt that it would have anything to do with a practical joke. Amoroso said that if Officer Waddell took an item, there would only be two explanations for it. It was either a joke, or Waddell wanted the emblem. Pfar6G.S61 told Amoroso that Waddell never mentioned to him that is was possibly a practical joke'IGs71. Waddell was just very apologetic toward Pfarr. Pfarr never asked Amoroso if what Waddell did was a practical joke. Sergeant Amoroso told me that about a week and a half prior to this interview that Waddell came over to Amoroso's house, and they were talking in his driveway. At that time, Waddell was apparently unaware of this personnel investigation. Waddell was wondering why he had not heard anything yet, referring to --arm unrelated investigatics81. Amoroso told Waddell that I was working on an Administrative Inquiry. Waddell looked at Amoroso strangely and Amoroso instantly realized that he probably said something that he shouldn't have. Waddell asked Amoroso what he was talking about and Amoroso told him that I was working on something to do with a tow truck driver. Waddell asked Amoroso what it was about and he told him that he didn't remember much from that accident other than we had talked about "messing with" Pfarr. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 588 City of San Luis Obispo Police Department Memorandum Amoroso realized his mistake by telling Waddell about this Administrative Inquiry because Waddell did not know anything about it. Officer Waddell has neve elaime to -never told Sergeant Amoroso that the emblem issue was a practical joke. Amoroso said that he and Waddell have never talked about the taking of an item one way or another. The only comment that Amoroso remembers Waddell making was that Waddell already went all through this with Pfarr The interview lasted 37 minutes and ended at 12:38 PM Interview with Officer George Berrios: I interviewed Officer Berrios in my office on January 7, 2014 at 3:08 PM. The interview was digitally recorded. Berrios told me he was not working during the Bentley collision and did not respond to this call. He told me he heard about the accident because other officers were talking in briefing about how the head rests popped and the vehicle's roll bar probably saved the occupant's lives_ He told me that he did not know anything about any Bentley emblem or other part until I asked him about it on this date. Officer Berrios was shocked to hear that this personnel investigation was related to Officer Waddell possibly taking a vehicle part from the Bentley for personal gain. Berrios told me he has never seen, nor has he ever heard of Waddell removing or taking any item from a vehicle collision investigation since he has worked with him. Berrios has no knowledge of any vehicle parts collection that Waddell may or may not have. Officer Berrios also told me he has never seen Officer Waddell take anything from theDRMOprogram for personal gain. Berrios told me that he and Waddell pride themselves on keeping the DRMO stuff accountable because they did not want to lose the program. Officer Berrios told me that he also had not heard anything about a practical joke involving any Bentley part. The interview lasted six minutes and ended at 3:14 PM Interview with Sergeant Janice Goodwin: I interviewed Sergeant Goodwin in my office on January 13, 2014 at 5:19 AM. The interview was digitally recorded. Goodwin told me she was called at home regarding the Bentley collision. She learned that Officer Waddell was already at work and Officers Kevany and Cudworth were enroute from home as part of the call -out team. Sergeant Goodwin went to the scene, and she and Officers Waddell, Cudworth, and Kevanyinvestigatedthecollision. Goodwin believes a patrol officer was also on -scene to help Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 589 City of San Luis Obispo Police Department Memorandum with traffic control, and thinl-thought it might have been Officer Hyman. She stated that Sergeant Pfarr came to the scene once or twice and he brought them coffee. Goodwin said she was there to supervise and also to learn how to investigate a major accident. Sergeant Goodwin told me the investigation did not take as long as they thought it would and she left about 30 minutes prior to the rest of the call -out team leaving. She does not remember if the Bentley was still present when she left. Officer Waddell's role at the scene was to input the data into the Total Station.-syetern be6auseL he -i -s the -ane -w the-+mv'tknowledge of the Systern. Sergeant Goodwin never heard or saw Waddell ask the tow truck driver for a screwdriver. She also never saw him get a screwdriver from the driver. She also never saw Waddell remove anything from the Bentley, nor did she see him with a brown paper bag. I asked Goodwin if she saw Sergeant Pfarr and Officer Waddell conversing at the scene and she said that she might have seen them talking, but she did not know what it was about. She also did not know about a phone call between Pfarr and Waddell after Pfarr left the scene. Sergeant Goodwin has never seen Officer Waddell remove anything from a vehicle other than for evidence and she has no knowledge whether he has a collection of car parts or not. In conclusion Sergeant Goodwin -told me she has no memory of Officer Waddell involved with an emblem and she said she did not even remember a tow truck driver being there. She said if he did take an item it was a stupid thing to `d4GS91. The interview lasted 14 minutes and ended at 5:33 AM. Interview with Sergeant Chad Pfarr: I interviewed Sergeant Pfarr in my office on January 25, 2014 at 6:46 PM. The interview was digitally recorded. Pfarr told me he responded to the accident involving the Bentley and he believes he was the second officer there. He initially thought the male occupant was dead—deceased and the female was conscious. Sergeant Pfarr contacted Lieutenant Smith to let him know that he would be calling out of the traffic team. Pfarr had the traffic investigation team called out and he remembers Officers Kevany, Chitty, Treanor; and Sergeant Goodwin being at the scene. Sergeant Pfarr told me he was the field supervisor that night and his role was to be the scene supervisor. Pfarr turned the scene over to the call -out team when they showed up. He remembers Officer Waddell and Sergeant Amoroso showing up in the FST truck with the call -out equipment. Officer Hyman was also there. Pfarr left the scene prior to Sergeant Goodwin arriving. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 590 City of San Luis Obispo Police Department Memorandum Sergeant Pfarr remembers that Officer Waddell was setting up the Total Station laser and the Bentley was still there. Pfarr watched as the tow truck driver rolled the Bentleyoverupright. Sergeant Pfarr initially observed Officer Waddell messingIjo5wl with the emblem but he could not get it off. He believes it could have been the rear trunk deck emblem. Pfarr then heard Waddell ask the tow truck driver for a screwdriver. Pfarr saw Waddell and the tow truck driver walk over to the tow truck_ Sergeant Pfarr believes that Officer Kevany could have heard Officer Waddell ask the tow truck driver for a screwdriver. Pfarr then saw Waddell with some sort of tool in his hand and believed it was a screwdriver but that it could have been some sort of pry tool. Sergeant Pfarr heard Officer Waddell make a comment to someone that might have been the tow truck driver. The comment was something like, "Add the emblem to his collection." Pfarr initially thought the removal of this emblem was a part of the accident investigation. When he heard the "collection" comment he thought Waddell was playing a silly joke on him because he was newly promoted and that it was not part of the investigation. Sergeant Pfarr said something like, "Ha ha, funny, jokes over, I am leaving now, I don't want to see you actually do this." Pfarr assumed that Waddell would not finish taking the part. Sergeant Pfarr then got into his vehicle and started to drive away. In his mirror, Pfarr saw Officer Waddell working on the trunk emblem, but did not see him physically pry itoff. He then saw Waddell crouch down by one of the wheels of the Bentley and pop offthehubcap. Sergeant Pfarr thought that Officer Waddell put the wheel cover with the Bentley emblem into a brown paper bag and walked away to where the units were parked. Pfarr did not see if Waddell returned the screwdriver to the tow truck driver or not. As Sergeant Pfarr was driving away he called Officer Waddell at 5:08 AM on the cell phone. He stated that before he dialed Waddell's number, Pfarr received a text from Officer Waddell's personal cell phone. Waddell texted Sergeant Pfarr a photo of two items loose on the Bentley floor. There was no text in the message and it only contained the photo. Waddell then answered Pfarr's call and told him that he just sent him a text message. Sergeant Pfarr said something like, 1 can't believe you just put me in that situation." Officer Waddell responded by saying that he was just being funny and put itback. Pfarr stated that he is 99% sure that Waddell said- thattold him he was joking. He said-thatindicated Waddell never said that he was planning on stealing the car part. Pfarr stated he would have handled the situation differently if Officer Waddell had said something like that. Sergeant Pfarr told Waddell when he was finished at the scene to come and see him in the sergeant's office. I asked Sergeant Pfarr what he thought made Officer Waddell change his mind after Pfarr saw Waddell walking to the FST truck with a brown paper bag containing thevehiclepartshehadjustremoved. Pfarr said that there were a couple of possibilities. One being that it was a--totalactually a joke and Waddell saw Pfarr leaving and was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 591 City of San Luis Obispo Police Department Memorandum going to put the parts back.; or --alt was also ossible another officer at the scene told him it was a dumb idea Jcs111to take the parts. Sergeant Pfarr thought another possibility was that it dawned on Officer Waddell that taking these parts was not the best idea GS121and maybe he should put them back. Sergeant Pfarr told me he did not tell Officer Waddell to put the items back while he was at the scene because he was leaving when he saw the parts being taken. Pfarr does not believe the items that Waddell removed from the Bentley ever made it to Waddell's patrol vehicle. When Officer Waddell arrived at Sergeant Pfarr's office, Pfarr was angry and Waddell was very apologetic, stating that he used bad judgment—. He-safd-thaf he and was just trying to be funn csl3l. Pfarr said that Waddell was showing a great deal of remorse and portraying it as a joke that went too far. Sergeant Pfarr asked Waddell what would happen if the tow truck driver was to get in trouble and feel that he had "some dirt" on Officer Waddell. Waddell told Pfarr that he "brushed it 'ove6c;sl4j° with the tow truck driver and let him know that it was a new sergeant and that it was just a joke. Pfarr and Waddell had about a 15 -minute conversation and Pfarr did not think that this would ever be an issue again. Sergeant Pfarr had a conversation with Officer Kevany after Officer Waddell left his office. Pfarr told Kevany that he did not know if she saw what went on at the scene but he wanted to make sure they were on the same page that it was not ok to take parts from a traffic scene. Officer Kevany was in absolute agreement with Sergeant Pfarr. Kevany never said anything about what Waddell did at the scene. Pfarr told Officer Kevany that he did not want her to leave thinking that ;Officer Waddell was going to get away with this kind of stuff referring to taking parts. 11as151 Sergeant Pfarr does not know of a collection of parts that Officer Waddell may have, nor has he ever seen Officer Waddell take anything in the past. Pfarr has never seen him take any DRMO equipment in the past. Saves -I -months after this-satlisie Ser-gea-nt-Rfaff-starl:ed-thFnking-that-h-e-frlight-not-have used -the --best judgment by -net-te lipg--a-lieetena nt abGut4his-inGiden-;HE e;S161 said this was about the time when Waddell was applying for an Investigator position. Pfarr said that he told Lieutenant's Bledsoe and Smith about this separately but within a few minutes of each other. Pfarr told them the reason he did not bring this up earlier was because he thought what Waddell did was a joke. He thought the information was relevant whether it was a joke or not and wanted them aware of what happened with the Bentley parts. Pfarr stated that Waddell was either going to steal the parts or it was a bad joke. Pfarr felt that Waddell's judgment would not make him a good candidate for this position. Pfarr admitted that he might have been naive about these types of things and he started to doubt Waddell's intention with the parts. Pfarr also admitted that had Waddell not put-inapplied for Investigations he probably would not have said anything about this incident unless something else had come up later on. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 592 City of San Luis Obispo Police Department Memorandum Sergeant Pfarr told me that Waddell never told him that he was playing a practical joke on him. Pfarr reiterated that Waddell has said-thip-smade statements 4ke`such as .'I was just joking" and "I was just messing around." The interview lasted 56 minutes and ended at 7:42 PM. Interview with Officer Kevin Waddell: I interviewed Officer Waddell on January 27th, 2013 at 2:10 PM in the City Council meeting room across from the City Attorney's office at 990 Palm. The interview was digitally recorded. Officer Waddell was represented by his Attorney Alison Berry Wilkinson. Assisting me during the interview was Sergeant Fred Mickel. I read to Officer Waddell the interview admonition along with his Constitutional Rights. Waddell invoked his rights and chose not to speak with me. At this time I ordered him to answer my questions related to this inquiry per Lybarger vs. City of Los Angeles. Officer Waddell said he understood his rights in this matter and signed the Interview Record form. Officer Waddell told me remembers responding to the collision involving the Bentley. He believes Officers Benson, Rodriguez, Hyman, Kevany, Cudworth; and Sergeant Pfarr were the -re. Allison Berry Wilkinson wanted it noted that this incident happened almost a year ago and Waddell is prejudiced by the passage of time and I will just be getting his best present recollection. He also thinks Sergeant Amoroso came to the scene and might have taken Waddell back to the station to get equipment. Officer Waddell does not remember if Sergeant Goodwin made it to the scene or not. Waddell's role at the scene as a member of the Accident Reconstruction Team was to take over the collision investigation. Officers Cudworth and Kevany were also there as team members and Waddell worked directly with them at the scene. Officer Waddell told me he did ask the tow truck driver for a screwdriver after the Bentley was rolled over onto its wheels and the officers were going to release the vehicle to be towed. He told me he asked for a screwdriver because he was going to use it to take a wheel cover off the ,'vehicleJcs»1. Waddell told me it was his idea to take the wheel cover off and it was also his idea to ask for a screwdriver. He does not remember if the tow truck driver asked him why he wanted a screwdriver. Waddell did get a screwdriver from the driver. I asked Officer Waddell if he thought the tow truck driver knew what he tcsig1was doing when he was taking off the wheel cover. Waddell told me he was trying to be very vocal about what he was doing and that he was trying to be dramatic and obvious. with -what he-was--doing—Waddell state4 tha"e-defimt4aly--remembereds taking off a hubcap. He said, "I remember at one point making reference to a emblem on the car, I don't recall, just I don't remember talking about the emblem itself and getting one off the car but I never took an emblem other than the hubcap." He was not sure but he thinks the hubcap came from a wheel on the rear passenger side of the car. Waddell told me he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 593 City of San Luis Obispo Police Department Memorandum doesn't remember ever trying to take an emblem off on the front of the hood but he remembers referencing it. I asked him what he meant by referencing and he said, "as I said a second ago I remember when I got the screwdriver, talking about the emblem and what it looks like its cool emblem and you could use a, I could use a screwdriver, I bet you could get this off, I bet you that thing comes off, just get behind it and it comes off, and then the hubcap was an easier thing to take off." Waddell did not think that the emblem would even come off with any kind of reasonableness. I then briefly summarized what Waddell had told me so far regarding removing the hubcap and he again said that he made it obvious that he was doing it and that he 'was talking loud about i4csiq]. After Officer Waddell took off the hubcap he put it on top of another hubcap that had come off during the collision. The hubcap that came off during the collision was located on a dirt berm and he does not remember the hubcap's condition. He stated the one he pried off was in fine condition. Waddell said that he did not place anything related to these items in a large brown evidence bag. Waddell did not recall if he put any items related to the investigation into a brown paper bag. He said that neither wheel cover was ever placed into a bag while he was at the scene. He said, "my intention was never to take these items away from the scene. 'Jcs_ l He also said he never walked these items to a car. ;Waddell stated that he was sure the tow truck driver saw him removing the wheel cover because he was being very obvious with what he was doing and he was not intending on hiding his acts4cs211. He also believes Officer Benson and Sergeant Pfarr saw him remove the wheel cap. Officer Waddell said the reason he took off the hubcap was that he was playing a prank on Sergeant Pfarr and was trying to do something to get him to respond and react to me, and to get him to tell Waddell to stop doing it. Waddell said he never had any intention on taking the items for anything and that he had no need for them. He also said his sole reason for that was that he was messing with Pfarr. Waddell admits it was a poor decision due to the timing and the people around. Waddell instigated the prank because of a conversation that he and Sergeant Amoroso had about playing a prank on Pfarr. He said their conversation did not contain any specifics on what the prank would be and he believed the conversation took place that same shift but it could have been the day before. He said the prank was designed to be light hearted and that it had something to do with the close working relationship between the two sergeants. It was because Pfarr was a newer sergeant and the prank was to joke with him and Waddell thought it would be funny. Officer Waddell again stated that was being loud when he was taking the hubcap off and that he was not trying to be secretive. He was referencing the emblem a lot and how cool it was and he was making random comments about the car. He said that he has never retained anything from any prior accident scenes. He does not recall ever saying anything about having a collection of car parts and if he did it would have been in reference to the prank. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 594 City of San Luis Obispo Police Department Memorandum Officer Waddell told me that Officer Benson was close by when he took off the hubcap and that he had a conversation with him after the fact. He also said that he is positive that Pfarr knew he removed the hubcap. Waddell said that the hubcap was the only item he took off the car. I then asked him if he had tried to remove any other items from the car and he said he had looked at an emblem on the front or the back of the car. He said he did place a screwdriver against the emblem but he realized taking the emblem would cause damage to the car so he went away. He said he did not want to damage the car. Officer Waddell told me he does not remember making a statement about having a collection of parts. He also said he doesn't remember having any other conversations at the scene except for Sergeant Pfarr saying to Waddell, "I can't be here for this" and, "I'm not going to be a part of this." At this time Pfarr walked away and got in his car and left. Officer Waddell thought Pfarr was referring to him taking the car part off the car. Officer Waddell told me as Pfarr was walking away he told Pfarr that he was just messing around but he received no acknowledgement from Pfarr. Waddell doesn't know if Pfarr heard him or not. Waddell stated that Sergeant Pfarr did not tell him to put the part back while he was at the scene. Officer Waddell thought his prank was not well-received by Pfarr based on Pfarr's comments, Pfarr walking away and Pfarr not acknowledging Waddell's comment about messing with him. Officer Waddell said that after the exchange with Sergeant Pfarr he gave the screwdriver back to the tow truck driver and he put the hubcap on the driver's seat of the Bentley. ,He said he made a point with the tow truck driver what he was doing.) GS221Waddell said that he told the tow truck driver that he didn't have a need for the hubcap from a Bentley and that he was just messing around. He said the tow truck driver then awkwardly chuckled. Officer Waddell said that after Sergeant Pfarr left the scene he called Waddell on his personal cell phone. Pfarr told Waddell that he put him in a bad spot and that he needed to put the parts back. Waddell said he told Pfarr that he had already put the car parts back. Waddell said he told Sergeant Pfarr that he was just messing around with him. Waddell said Pfarr could have asked him to come and see him at the station but he was not sure. Officer Waddell stated that when he returned to the station he met with Sergeant Pfarr in the sergeant's office. He said that Pfarr told him that it was a bad1ideajcs231 and he put him in a bad spot and that junior officers were present. Pfarr asked him what they were going to think. Sergeant Pfarr told Officer Waddell that he spoke to everyone who was there to reassure everyone that he handled this incident with Waddell. Waddell saw Officer Benson in the parking lot and assured him that he did not want to put anyone in a bad spot and that he had no intention of taking anything. Waddell expressed to Benson that he made a bad decision. I asked Waddell if when he was on the phone or at the station with Pfarr did he tell Pfarr why he took the car partsres341. Waddell said- other- th an-sayi-ng- that replied he was just messing around and joking jOS251he did not get into specifics because he thought Pfarr Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 595 City of San Luis Obispo Police Department Memorandum was upset with him and the situation. Waddell did not bring up the previously mentioned reasons for the prank to 'cs26]Pfarr. Waddell stated that at the end of the night Pfarr did not know this was a practical joke on him. Officer Waddell does not remember texting Sergeant Pfarr a photo of the hubcap back in the Bentley but he could have. Officer Waddell said that he spoke to Sergeant Amoroso weeks ago about this incident. According to Waddell, Amoroso was approached by Sgt. Pfarr and told that he may be interviewed about this incident. Amoroso told Waddell to be honest and don't feel like you needed to protect him in any way in relation to their conversation about the prank. Amoroso— told-WaddeVthat -4 AmofGso-was--going-Abe- in -t le-fof-being-a--pert-of raising-the-praf*-+dea-t en so be it. When I asked Waddell if he and Amoroso discussed this being a prank three weeks ago he told me that Amoroso mentioned that to him. Waddell told Amoroso that it was a prank. Amoroso was the first one to tell him this investigation was going on. Waddell stated he told Amoroso about it being a prank the night after the crashics271. Officer Waddell stated he has never taken any vehicle parts before. He said he has only used DRMO equipment for work and not for personal reasons. He said that he has two jackets that he wears during SWAT. Bert' -Wilkinson objected that there was no prior notice given about an accusation that he has any equipment improperly at home. She claimed these questions were outside the scope of this investigation and that they weren't proper to be asked. She recommended the Department strike those from the investigation. Officer Waddell summarized this interview by stating it was his complete intention at the time to prank Sergeant Pfarr and that he never intended on taking anything. He realized that night that he made a bad choice and understood the position in which it put Sergeant Pfarr. Officer Waddell told me he would have put the hubcap back even if Pfarr had not indicated his dislike for the situation. Waddell told me the end result would have been the same and the hubcaps would have been back in the car. Officer Waddell said he would have gone to Pfarr if Pfarr had not called him about the incident. Officer Waddell again stated that the wheel cover was already back in the car when Pfarr called him on the telephone. He also said that had the conversation between he and Amoroso regarding pranking Sgt. Pfarr never come up he doesn't think he would have taken the wheel covertcS281. He said it was his choice to take the wheel cover and he takes responsibility for that but he doesn't think he would have done that. The interview lasted 73 minutes and ended at 3:23 PM. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 596 City of San Luis Obispo Police Department Memorandum Interview with Lieutenant John Bledsoe: I interviewed Lieutenant Bledsoe in my office on February 5, 2014 at 11:20 AM. The interview was digitally recorded. Bledsoe told me he first heard of this incident a few months ago when Sergeant Pfarr came to his office to express his feelings on possible candidates for the upcoming Investigations and Special Enforcement Team (SET) openings. Bledsoe remembers their discussion lasted about ten to fifteen minutes. Pfarr wanted to specifically discuss Officer Waddell because Waddell had expressed an interest in an investigator position. Sergeant Pfarr told Bledsoe that he had integrity concerns about Waddell because Waddell had planned to take a car part from a traffic collision scene that he was investigating_ Ilcsz911-ieutenant Bledsoe believes the item was some sort of hood ornament and that Officer Waddell told Sergeant Pfarr that he wanted to take it as some sort of memorabilia. Pfarr thought that Waddell might have been serious about taking the item for a souvenir even know Waddell had told him it was a jokerGs301. Bledsoe thinks that Pfarr told Waddell at the scene to put the item back. Lieutenant Bledsoe told me that Pfarr told him that if Waddell had taken the item he would have had much more of an issue with it. Sergeant Pfarr told Lieutenant Bledsoe that he called Officer Waddell into his office as soon as Waddell had cleared the collision scene. Bledsoe got the impression that Pfarr resolved the issue that night by speaking to Officer Waddell about the issue. Lieutenant Bledsoe asked Pfarr if he had spoken to Lieutenant Smith, and Pfarr said that he had not. Bledsoe directed Sergeant Pfarr to tell Smith about the incident. Bledsoe's impression was that Pfarr wasn't certain about Waddell intentionally taking the part, ortakingitasajoket6s311. The interview lasted 11 minutes and ended at 11:31 AM. Interview with Officer Greg Benson: I interviewed Officer Benson in my office on February 5, 2014 at 11:55 AM. The interview was digitally recorded. Benson told me he was not dispatched to the traffic collision at Orcutt and Johnson but he went by there to see the damage to the vehicle. He told me that Officers Kevany, Waddell; and Sergeant Pfarr were there when he arrived. He said other officers could have been there but he doesn't remember who. Officer Benson told me he was at the scene less than ten minutes. He said the tow truck had just gotten there and they were working on dragging the vehicle out from where it crashed. He doesn't remember if Officer Cudworth or Sgt. Goodwin was there. Officer Waddell was over by the Bentley when Offleer--Beeso+v-he arrived. -When -asked w#at-Waddelf-was doing I askedics321...... Benson said, "He tried prying off one of the rear emblems to the vehicle." Officer Benson described the rear emblem that was on the lid of the trunk and he thinks the vehicle was upright. Officer Waddell was trying to get the emblem off, but the emblem was part of the locking mechanism of the trunk. Benson was standing about five feet from Waddell when he was prying the emblem and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 597 City of San Luis Obispo Police Department Memorandum Waddell tried to remove the emblem for about one minute. Benson does not remember Officer Waddell saying anything during this time. Officer Benson told me that he remembers Sergeant Pfarr and he looked at each '[cs33lother and wondered if Waddell was really doing this — referring to Officer Waddell removing a car part. Officer Benson remembers Officer Waddell asking the tow truck driver for a screwdriver. He said that Waddell did have something that he was using. Benson said that Officer Waddell gave up on the trunk emblem and that he moved to something else. Benson thought Officer Waddell then tried to remove the steering wheel emblem. He got something from the car that Sergeant Pfarr made him put it back. Officer Benson also saw Waddell around one of the wheels. Officer Benson said that he couldn't be sure, but he thought Officer Waddell was there to get the Bentley emblem from the wheels. He did not remember if he used a tool or not with the wheel cover. Benson saw Waddell with a vehicle part in his hands but he doesn't remember what part it was. Officer Benson stated it was a vehicle part with the winged "B" for Bentley in the center. He has never heard of Officer Waddell having a parts collection. Officer Benson told me he observed Sergeant Pfarr confront Officer Waddell and Benson believes he could kind of tell what was being said. Benson believes that Sergeant Pfarr was telling Officer Waddell that he did not think it was appropriate what he was doing and he should put back what he took. Waddell then placed the item inside the vehicle. It was either the center cap of the wheel or the steering wheel emblem. Officer Benson said, "For some reason, I want to say that he took out his knife and cut like a piece out of the leather that was off the steering wheel but I can't remember. He got something with an emblem on IGS341if'. Benson never saw Officer Waddell put anything in a bag. Benson saw Waddell put the item back in the car but there were also parts on the tow truck so he could have also put the part there. Officer Benson believes Sergeant Pfarr said, "On that note, let's get out of here before we get involved in his IA or that IA." Officer Benson thought Pfarr was referring to Officer Waddell trying to get parts off of a vehicleics351. Benson and Sergeant Pfarr then left the scene. Benson said he thinks that he and Sergeant Pfarr left the scene at the same time, and Officers Kevany and Waddell were still there. Officer Benson knows -was confident the tow truck driver saw Officer Waddell removing items because the tow truck driver and Waddell were talking about Waddell taking the parttcs361. Benson believes that Officer Kevany witnessed the taking of the emblem of the car. I asked Officer Benson what he thought was the motive for Officer Waddell removing the part and he said that he believes that Waddell thought the car was totaled and there was no value to the vehicle. He thought Waddell was taking the part for a souvenir. He remembers Officer Waddell looking for some kind of emblem to take. He also remembers the cloth emblem had come off the steering wheel during the accident and it had the same Bentley logo on it. Benson thinks Waddell was either cutting or ripping the rest of the emblem off the steering wheel cover_Jc,s371 Officer Benson said there would be no other reason Waddell took the part off the vehicle. I asked Benson if he thought Waddell intended on booking the part as evidence if he had left the scene Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 598 City of San Luis Obispo Police Department Memorandum with the part. Officer Benson told me "no" --so. I then asked him where he thought the part would have ended up. Benson—said replied, "In hislcs391 personal belongings." Benson said that Waddell was not being secretive when he was attempting to take the parts. Officer Benson said that he could not understand how this incident could have been a joke. He did not have any conversation with Sergeant Pfarr about it being a joke. Benson said that Pfarr seemed, 'pretty pissed" that Officer Waddell put him in that position. Benson described Pfarr turning red and getting really quiet and this is different for Sergeant Pfarr because he is always so nice. Officer Benson does not know anything about a text message from Waddell to Sergeant Pfarr nor does he know about a phone call from Pfarr to Waddell. Officer Benson has no knowledge whether Officer Waddell has a collection of car parts or not, nor has he ever seen Waddell take any items. He also has no information on anyDRMO equipment handled by Waddell. Officer Benson had not heard of this incident again until I asked him about it today. Benson believes he witnessed the whole incident. He believes Officer Waddell attempted to take the part for personal gain. Benson said that he would classify the taking of the Bentley part as theft. Officer Benson just assumed that Waddell had been written up Ias391and the issue was over. He did not know there was an Administrative Inquiry underway. The interview lasted 29 minutes and ended at 12:24 PM. Interview with Lieutenant Jeff Smith: I interviewed Lieutenant Smith in my office on February 13"' 2014 at 5:02 PM. The interview was digitally recorded. Smith told me he was first made aware of this incident when Sergeant Pfarr came into his office and told him about it. Smith does not remember the exact date of this meeting but it occurred sometime around the last Investigations and SET special assignment testing process. This meeting lasted about five minutes and Lieutenant Smith vaguely remembers his conversation with Pfarr. Sergeant Pfarr admitted to Smith that he should have told him about this incident earlier. Pfarr went on to tell Lieutenant Smith what happened at the collision that involved the Bentley. Smith remembers this collision because Sergeant Pfarr called him at home that night to inform him that a major collision had occurred. During the meeting in Smith's office, Sergeant Pfarr told him that when he arrived at the collision scene he saw Officer Waddell carrying one of thO hubcaps and walking towards -Rfa-rfin his direction. He asked Waddell what he was doing and Waddell told him that he was just messingrosaoi with him. Sergeant Pfarr told Officer Waddell to put the item back and that it wasn't funny. Pfarr told Lieutenant Smith that he thought that he handled Officer Waddell taking the vehicle part that day and did not think Waddell was really going to take the part. Pfarr thought Waddell was playing a practical joke on him because he was a new sergeant. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 599 City of San Luis Obispo Police Department Memorandum Lieutenant Smith believes Sergeant Pfarr brought this incident up to him months later beeause--Pfarr-had-- so i[ItWity-issues-with- Wadded after AL. -was initiated and centered on an ince rit aIle ation. Waddell was doing -working a tot-ofa si niI cant number of overtime hours downtown for the -Community Action Team CATI shifts and Smith had made it clear to his sergeants that he wanted those officers downtown for the entire four hour shift. Pfarr caught Waddell at the station during one of these shifts watching a movie and Waddell told him that he had just finished his lunch. Pfarr told Waddell that since it is only a four hour shift yGu- he only- get was only entitled to a 15 minute break. There were also a couple of times where Waddell either came to work late or left early. Pfarr started to have concerns with some of the patterns that Waddell was showing. Because of these concerns, Smith believes that Pfarr reflected back on this incident the incident involving the collision guest+en4ig-reconsidering whether it was a practical joke or an interrupted thefLw,.iiLor-Gould he--really-have-beer-faking-a-part. Smith remembers that Pfarr wasn't sure at the time whether it was a practical joke or not. Smith thinks that Waddell might have told Pfarr that he was going to take one of the hubcaps and then Waddell went and grabbed one. Smith said that Pfarr stated something like, "knock it off" but then he saw Waddell carrying it towards his car. Smith believes that Pfarr told him that Waddell did put the part in a brown paper bag and started walking toward his vehicle. At this point Pfarr questioned whether this was a practical joke or not. Waddell then stated he was just messing with him and then put the part back. Smith does not remember if Pfarr mentioned that Waddell text him a photo of the item back in the Bentley. Smith did not get the impression that Pfarr was minimizing the situation when he told him about it months later. Smith believes Pfarr came forward because he was having a lot of problems with Waddell on the weekends and Smith told Pfarr that he needed to hold Waddell accountable. Pfarr never mentioned to Smith the comment about an IA that he and Benson discussed at the scene. The interview lasted 13 minutes and ended at 5.15 PM. CONCLUSION; During the course of this investigation I concluded that there is overwhelming evidence to show that Officer Waddell knowingly and willfully attempted to remove a vehicle part from a vehicle that did not belong to him. This was witnessed by other employees and at least one ;citizegGS421. I recommend that Allegation A and B be sustained and this case should be forwarded to Captain Chris Staley for final disposition. FYWIRITS- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 600 City of San Luis Obispo Police Department Memorandum 1) Compact Disc with recorded interviews 2) Memo from Sergeant Pfarr to Captain Storton (attached to file) 3) Memo from Captain Storton to Lieutenant Proll (attached below) EXHIBIT #3 July 14, 201 5MarGh 24, 2444 To: Lieutenant Bill Proll From: Captain Keith Storton Subject: Waddell Investigation In December of 2013 Sgt. Pfarr had come to my office and discussed an encounter he had with Ofc. Waddell in February of 2013. Sgt. Pfarr relayed that he was a night watch Sergeant on duty when a serious traffic collision occurred involving an expensive Bentley. The nature of the collision required the call -out of the Police Department's Major Accident Team which included Ofc. Waddell. At some point while the team was investigating the collision Sgt. Pfarr happened to stop by to see if the team needed anything. While on scene he noticed Ofc. Waddell remove a Bentley emblem from the vehicle with a screwdriver. Sgt. Pfarr felt this was odd as the emblem had nothing to do with the collision and he was uncertain as to why Ofc. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 601 City of Sari Luis Obispo Police Department Memorandum Waddell was removing it. He noticed a bag near Ofc. Waddell that he thought contained other vehicle pieces. Sgt. Pfarr approached Ofc. Waddell to question him about the emblem. Ofc. Waddell indicated to Sgt. Pfarr he was retaining the piece for his "collection". Sgt. Pfarr was shocked in the response and thought that he must be kidding. He told Ofc. Waddell to put the emblem back and left the scene. Sgt. Pfarr never saw Ofc. Waddell put the vehicle emblem back, however indicated Ofc. Waddell sent him a text message with a photo of the part back in the car. Sgt. Pfarr had called Ofc. Waddell into his office a short time later to discuss the incident. He told Ofc. Waddell that the taking of the car parts, joke or not, was inappropriate. He told Ofc. Waddell that as far as he was concerned the issue was resolved. He would not be sharing the information with anyone else. Nothing further wasdone. Sgt. Pfarr indicated this issue involving Ofc. Waddell has bothered him for some time. He felt that Ofc. Waddell had truly intended to remove the Bentley emblem for his own personal use but Ofc. Waddell played it off as a joke because he had caught him. Sgt. Pfarr was so concerned he later went to Lt. Bledsoe and Lt. Smith (sometime around September of 2013) to explain the events that took place. He is not aware if Lt. Bledsoe or Lt. Smith had done anything with the information once they received it. I told Sgt. Pfarr this was the first that I had heard about the incident and I was concerned about the allegations. I felt the incident needed to be investigated further. I did not question Sgt. Pfarr in further detail and informed him not to discuss the matter with anyone else unless directed to do so. He understood and we concluded our discussion. On December 20, 2013 1 pulled an Administrative Investigation tracking number and assigned the investigation to your attention. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 602 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 603 Ar) .2 ulll ne 11oil lie lltl • 11 CAL -PACIFIC RI P®RTING9 INC. Certified Transcript of Audio Recording of: Officer Robert Cudworth 01/07/2014) Transcribed: June 15, 2015 Case: In Re: Matter of Kevin Waddell IA 13-004 Repail Christine B®/dt® CL T 18 Professional Center Parkway, Ad Floor San Rafael, CA 94903 Phone: 415.578.2480 Fax: 415.952.9451 Email: support@calpacificreporting.com Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 604 CERTIFIED TRANSCRIPT INTERVIEW OF OFFICER ROBERT CUDWORTH Conducted by Lieutenant Bill Proll) LDF Matter No. 13-3248 January 7, 2014 TRANSCRIBED ON JUNE 15, 2015 BY: CHRISTINE BOLDT, CLT CAL -PACIFIC REPORTING 18 Professional Center Parkway, 3rd Floor San Rafael, California 94903 415) 578-2480 Support@CalPacificReporting.com 000- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 605 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Robert Cudworth (01/ 07/2014) Transcribed: June 15, 2015 LIEUTENANT PROLL: This is Lieutenant Bill Proll. It's January 7th, 2014, at 1121 hours. I'm in my office with Officer Robert Cudworth. Q. And, Robert, I'm going to explain to you that this is about an internal investigation resulting from a traffic accident involving a Bentley back on February 22nd. Did you respond to a major injury accident at Orchid and Johnson involving a Bentley on February 22nd, 2013? A. Yes. Q. And what do you remember about the response or what the details were? A. It was a traffic callout. Vehicle had run through the intersection, supposedly a DUI. Injury TC. It was a.Bentley. Q. You responded from home? A. Correct. Q. Do you remember what SLO PD personnel were at the scene during the investigation? Or why don't you just list -- A. Sure. Q. -- what personnel you remember. A. Sure. Officer Kevany, myself, Sergeant Goodwin, Officer Waddell. And I think there were other Cal -Pacific Reporting, Inc. 415.578.2480 Page 2 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 606 In Re: Matter of Kevin Waddell Audio of: Officer Robert Cudworth (01/07/2014) IA 13-004 Transcribed: June 15, 2015 1 people that came and went during our investigation. I 2 think there was Sergeant Pfarr, and that's the other 3 people. I don't know. 4 Q. Okay. Were there other PD personnel there that 5 you just don't remember? 6 A. I think there were, but I don't know. I can't 7 speak to who they may have been without guessing. 8 Q. What was your role at the scene? 9 A. Without looking at the report, I think I ended 10 up taking -- or writing out the report. I helped with 11 measurements, scene documentation. I may have done the 12 180 with the car. 13 Q. Okay. So was this your case or not? 14 A. I don't remember. 15 Q. Okay. When did you leave that accident scene, 16 and what SLO personnel were still there when you left, 17 if you remember? 18 A. We would have -- I would have left at the 19 conclusion of the investigation. I believe we had 20 wrapped up. We had picked up all of the total station 21 items, cleared the roadway if there were cones or if it 22 was barricaded off. But I believe the roadway was 23 clear, and we picked up. We were done. 24 Q. Okay. Was the car gone? 25 A. I don't know. Page 3 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 607 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Robert Cudworth (01/07/2014) IA 13-004 Transcribed: June 15, 2015 Q. Okay. A. I mean, I would have liked to have -- I thought it would be been wrapped up. People had already left. But no, I can't... Q. You already had mentioned that Officer Waddell was there, so I'm not going to ask you if you remember if Officer Waddell was there. But what was he doing during this investigation? A. He was helping us with the -- I believe he was doing the total station. He was manning the head unit, whatever, the control unit for the total station, and having us move around to different locations. Q. When you say "having us," meaning you and? A. I think it was Colleen. It may have been Janis, but someone. We were working in pairs, or I was working with somebody else. Q. Did you hear or see Officer Waddell ask the tow truck driver for a screwdriver? A. Yes. Q. And what do you think that was for? x A. He was -- my understanding was that he was going to attempt to or try to take off the Bentley emblem. Q. Like, from the hood? Or do you know where? A. No. Cal -Pacific Reporting, Inc. 415. 578.2480 Page 4 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 608 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Robert Cudworth (01/07/2014) Transcribed: June 15, 2015 1 Q. Okay. Did you see Officer Waddell get a 2 screwdriver from the tow truck driver? 3 A. I don't remember seeing that portion of it. 4 Q. Do you ever remember seeing him with a 5 screwdriver at all? 6 A. No. 7 Q. Did you see Officer Waddell remove anything 8 from the vehicle? 9 A. No. 10 Q. So when I asked about the screwdriver, your 11 understanding was that he was looking for a tool to 12 remove that item, and then -- but you never saw him go 13 out to get the screwdriver, nor did you ever see him 14 remove an item? 15 A. Correct. 16 Q. Were you around in the area when he asked for 17 the screwdriver? 18 A. I don't know if I was going back and forth 19 between the FST truck where we were loading stuff up. 20 And tow truck, I vaguely remember the tow truck being 21 out in the middle of the roadway on Orchid or near the 22 intersection. And I don't know if that was where I 23 overheard it or that was where I saw it. 24 Q. Okay. But you were -- you personally heard 25 Officer Waddell ask the tow truck driver for a Page 5 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 609 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Robert Cudworth (01/07/2014) IA 13-004 Transcribed: June 15, 2015 screwdriver? A. Maybe. Q. Okay. A. Not trying to be evasive. Q. So you said -- but your understanding was that he was going to attempt to take off the Bentley emblem? A. I think I remember him talking about it, but I don't remember him -- he wasn't talking to me directly about it. I don't know if he was having conversation with multiple people. But I remember that happening. I just don't remember actually seeing him or actually physically -- I don't remember hearing him ask the tow truck driver, "Hey, do you have a screwdriver that I can take?" Q. But when I asked this, did you hear or see Officer Waddell ask the tow truck driver for a screwdriver, you said yes, and then you said, "It was my understanding he was going to attempt to take off the Bentley emblem." So let's just go back a little bit. For six, the question is: Did you hear or see Officer Waddell ask the tow truck driver for a screwdriver? A. And I'll go with the initial thing, is yes. Q. Okay. So you heard him? - A. I believe -- I remember there being a Cal -Pacific Reporting, Inc. 415.578.2480 Page 6 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 610 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Robert Cudworth (01/07/2014) Transcribed: June 15, 2015 1 conversation between him and the tow truck driver, yes. 2 Q. So then when I said that, you said, yes, your 3 understanding was that Officer Waddell was going to 4 attempt to remove or take off the Bentley emblem? 5 A. Right. 6 Q. Whose idea was that? 7 A. I would assume it was his. I believe it would 8 be Officer Waddell's. 9 Q. Okay. It wasn't like the three of you were 10 talking and go -- Colleen might have said, "Hey, we 11 should take the emblem," and then Kevin went over and 12 asked the tow truck driver? It was his idea and he 13 asked the tow truck driver? That's you understanding? 14 A. Yes. I don't believe anybody else was involved 15 in taking the -- or was talking about taking the emblem. 16 Q. Okay. And did you hear about Officer Waddell 17 saying anything about having a collection of car parts 18 that he's taken from accident scenes? 19 A. No. 20 Q. Do you know of any other items besides this 21 case that Officer Waddell has taken items or car parts 22 from accident scenes? 23 A. No, I've never seen that, take any items from a 24 crash scene that we had been on, or taking things. 25 Q. Okay. Did you see Officer Waddell and Sergeant Page 7 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 611 1 2 3 4 5 6 7 8 9, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Robert Cudworth (01/07/2014) IA 13-004 Transcribed: June 15, 2015 Pfarr have any discussions while at the scene? A. Yeah. And that's the reason why I thought that everything had been taken care of, here at the unintelligible) where this conversation was taking place, that this is going to happen. I saw Sergeant Pfarr going over there. I assumed that he was going to tell him, "What are you doing? What the heck are you doing? Knock it off." And that's when I believed we were done, where it was done. Q. So you saw them have a conversation? A. I remember them. That's what I remember of the incident. Sound is heard.) LIEUTENANT PROLL: I don't know why this is doing this. Q. So you remember them having a conversation, and you think it was about Sergeant Pfarr saying to Officer Waddell, "What the hell are you doing?" A. Right. I didn't -- I wasn't part of -- I wasn't part of the conversation. I didn't hear it, but that's what kept me from being involved in it, but I figured Sergeant Pfarr was handling -- End of recording) 000- Cal -Pacific Reporting, Inc. 415.578. 2480 Page 8 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 612 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Robert Cudworth (01/ 07/2014) Transcribed: June 15, 2015 l CERTIFICATE OF TRANSCRIBER 2 3 I hereby certify that the foregoing recorded 4 proceedings in the within -entitled cause were 5 transcribed by me, CHRISTINE BOLDT, CLT, a disinterested 6 person, and were thereafter transcribed into 7 typewriting. 8 9 10 Dated: June 15, 2015 11 12 13 14 s 15 16 Christine Boldt, CLT 17 18 19 20 21 22 23 24 25 Page 9 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 613 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 614 ATV - /-A CAL -PACIFIC REP®R'T'ING.9 INC. Certified Transcript of Audio Recording of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 Case: In Re: Matter of Kevin Waddell IA 13-004 Reporter; C'htAtke BFaidt, CL T 18 Professional Center Parkway, 3rd Floor San Rafael, CA 94903 Phone: 415.578.2480 Fax: 415.952.9451 Email: support@calpacificreporting.com Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 615 CERTIFIED TRANSUIPT INTERVIEW OF OFFICER COLLEEN KEVANY Conducted by Lieutenant Bill Proll) LDF Matter No. 13-3248 January 3 TRANSCRIBED ON JUNE 16, 2015 BY: CHRISTINE BOLDT, CLT CAL -PACIFIC REPORTING 18 Professional Center Parkway, 3rd Floor San Rafael, California 94903 415) 578-2480 Support@CalPacificReporting._com 000- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 616 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 1 LIEUTENANT PROLL: Test. Friday morning. This 2 is Lieutenant Bill Proll. I'm in my office with Officer 3 Colleen Kevany. It is January 3rd at 8:30 in the 4 morning. I am interviewing Colleen regarding an 5 administrative inquiry involving Officer Kevin Waddell. 6 Q. So, Colleen, I'm going to ask you a series of 7 questions and going to proceed right now. 8 Did you respond to a major injury accident at 9 Orchid and Johnson involving a Bentley on February 22nd, 10 2013? 11 A. Yes. 12 Q. And can you tell us the circumstances? You 13 weren't working that day because it was at night. Do 14 you remember what happened? 15 A. Sure. I got a phone call at home and 16 responded. I (inaudible). I'm not sure. 17 Q. Do you remember what SLO PD personnel were at 18 the scene during the investigation of this collision? 19 A. Kevin, maybe. No. That's as far as I can go. 20 I don't remember if George was there or not. When was 21 it? 22 Q. In February. 23 Was Janice there? 24 A. Yes. To be honest, I don't know. 25 Q. What was your role at the scene? Page 2 Cal -Pacific Reporting, Inc. 415. 578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 617 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 1 A. We were there because it was a possible fatal. 2 So we were there -- 3 Q. Probable fatal, you mean? 4 A. Probably fatal, yeah. That's what I was called 5 out for. And there for the collision reconstruction 6 diagram. 7 Q. Do you remember when you left the scene after 8 you were done? And when you left, like, was that the 9 whole scene, or were there some people still there 10 working? Did you guys all leave at once when you were 11 done? Or do you remember? 12 A. We flipped the car over. I was there when it 13 got towed. I thought we all cleared the scene at the 14 same time because we cleaned up and put the total 15 station away. 16 Q. So when you left, the car had already been 17 taken away? 18 A. Yes. 19 Q. And what did you say about the total station? 20 A. We were using the total station set to diagram 21 the scene, so it takes time to put all that away. I 22 guess the first time (inaudible) and that was 23 ( inaudible) . 24 Q. And did you do the total station with Kevin? 25 A. Yes. There was one other person, but I don't Page 3 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 618 In Re: Matter of Kevin Waddell Audio of: Officer Colleen Kevany (January 3rd) IA 13-004 Transcribed: June 15, 2015 11 know who was on the other stick. 2 Q. It takes three people to run it? 3 A. Well, we have two sticks, so it goes faster if 4 you have two people (inaudible). 5 Q. So a third plus the two people or just -- G A. No. One person operating the head, and then 7 two people on sticks. 8 Q. Okay. From your recollection, though, it was 9 three of you doing it that night? 10 A. Yeah. 11 Q. And so you already mentioned that Officer 12 Waddell was there. And what was he doing? 13 A. I think he was controlling the head of the 14 total station. Basically he's the one in charge of the 15 diagram. 16 Q. And was Officer Waddell there when the tow 17 truck Showed up? 18 A. I think (inaudible). I think he was working 19 that night, so he was the first officer. 20 Q. So you think he was working that night. So he 21 would have been there? 22 A. Yeah. 23 Q. Did you hear or see Officer Waddell ask the tow 24 truck driver for a screwdriver? 25 A. No. Page 4 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 619 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 Q. Did you see Officer Waddell get a screwdriver from the tow truck driver? A. I don't remember that part. Q. During the course of this investigation, did you see Officer Waddell remove anything from the vehicle? A. Yeah. We were going to take a little symbol off the front, I think it was, or something like that; a trophy for traffic, supposedly. It wasn't going to be, like, anything for personal gain or anything. We were just messing around. Q. So you said "we." Does that -- collectively you guys decided to do that? A. No. I was just there when he was talking about, "Hey, this would be cool to put in traffic as a badge or a symbol." We knew at that point that the occupants were minor injuries only and were not going to be -- it wasn't a fatal (inaudible) investigation. Q. Okay. So you said, "Yes, we were going to take the emblem"? Or what is it? A. I don't remember if it was the hood emblem or it was a rim emblem. It was just a -- I remember it had an emblem of some type on it. I think it was in the front of the car. Q. And whose idea was that? Cal -Pacific Reporting, Inc. 415.578.2480 Page 5 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 620 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 1 A. Kevin started (inaudible). 2 Q. Do you remember, like, did he come to you and 3 say, "Hey, that would be cool to put in my office"? 4 A. Something to that effect. 5 Q. Was it definitely in the office? 6 A. That's what he said, yeah. It was going to be 7 for the traffic team. And it was just a joke at the 8 time. 9 Q. Okay. So you say "a joke." Was it -- 10 A. Not a joke like he wasn't going to take it. It 11 was a joke to say, "Hey, look, we investigated a Bentley 12 accident." So it was just -- 13 Q. okay. 14 A. -- not a joke. He was going to -- thinking 15 about doing it, but he was correct (inaudible). 16 Q. So now that we've talked about that, does the 17 screwdriver have any recollection, like, he would have 18 needed that to get it off or anything? 19 A. I don't remember. 20 Q. Okay. So you guys were there working, and he 21 says, "Oh, we should take that emblem to put it in the 22 traffic office because we investigated a Bentley"? 23 A. Yeah. 24 Q. Have you ever heard him say anything like that 25 he has a collection of those kind of things? Page 6 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 621 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 1 A. No. 2 Q. So no mention of it in your history with him, 3 working all these accidents? 4 A. I've never seen him take anything off any cars. 5 Q. Okay. So why do you think this time he did it? 6 Because it was a Bentley? 7 A. I think just because -- my impression was, 8 like, "We're never going to see a Bentley in an accident 9 or in a crash." Or he would investigate a Bentley or a 10 vehicle of this caliber, I should say. I think it was 11 just because it was a novel vehicle. 12 Q. And was it just the two of you, or who else was 13 involved in this? 14 A. Inaudible) who was there. I remember our 15 supervisor came up and said, "You got to be kidding me. 16 Never do this." And then that was the end of that. 17 Q. Okay. Do you think that was Chad? 18 A. I think it was Chad. 19 Q. And when the supervisor came up and said that, 20 had it already been removed? Well, first of all, do you 21 know if it was removed? 22 A. Yes. 23 Q. Okay. 24 A. It did get removed. Something got put back 25 inside the car. I remember that. Page 7 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 622 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 1 Q. Okay. So it had been removed. The 2 supervisor -- so if I told you that the two supervisors 3 that were there were -- at some point during this thing 4 were Janice and Chad, do you remember which one it would 5 have been that said, "You got to be kidding me"? 6 A. Chad. And so what was the logic in thinking that this 7 Q. Okay. So it was already off because you know 8 that it was eventually put back into the car or 9 something. Do you know how -- or who took it off? 10 A. Kevin took something off. 11 Q. Okay. And you don't remember if it was on the 121 front? 13 A. I remember looking at both symbols. I remember 14 looking at the front and at the wheel. I don't remember 15 which. 16 Q. So you both were looking at both symbols? 17 A. Yeah. 18 Q. And so what was the logic in thinking that this 19 could be taken off? Was it because the car was totaled 20 and it wouldn't matter? Or what was the -- 21 A. Right, because we knew it wasn't a new fatal. 22 We weren't going to need the car for further 23 investigation because it would be minor injuries. The 24 car was done because it was a complete rollover. 25 Q. So totaled, you think? Page 8 Cal -Pacific Reporting, Inc. 415. 578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 623 In Re: Matter of Kevin Waddell Audio of: Officer Colleen Kevany (January 3rd) IA 13-004 Transcribed: June 15, 2015 1 A. Yeah. Oh, yeah. And it wasn't done anything 2 maliciously. It was kind of a joke, I thought. So it 3 wasn't -- like I said, it wasn't going to needed for any 4 further investigation. The car was basically no longer 5 evidence. 6 Q. Was there any conversation with you and Kevin 7 about it being a joke or anything? 8 A. No, I wouldn't say that. But it was just -- it 9 was going to be like a traffic trophy. That was my 10 impression. 11 Q. So just to back up a little bit. You guys get 12 to this scene. You're investigating this. You guys 13 were all done, but before it got towed, Kevin removed at 14 least one of the emblems with your knowledge, your 15 understanding that it was going to be put in the traffic 16 office because the car was totaled and it wasn't going 17 to be a fatal. There would be no further investigation 18 on the car, and it was just kind of a joke to take this 19 to put it in the office? 20 A. Yeah. 21 Q. Had you heard anything during this that it was 22 a joke on Chad because he was a brand-new supervisor? 23 A. No. 24 Q. Is that the first time you've heard that? 25 A. Yeah. I hope somebody wouldn't put a Page 9 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 624 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 1 supervisor in that position. That's not right. 2 Q. Do you think Kevin would say that it was a joke 3 just to put it in the traffic office, or do you think 4 Kevin might say that he was doing a practical joke on 5 Chad? Would you have known that when he was doing it, 6 if it was a joke on Chad or not? 7 A. No. I said that ain't right. It was not fair s to Chad. 9 Q. Okay. 10 A. But I'll tell you, I didn't hear that. 11 Q. Okay. Did you see Officer Waddell and Chad 12 have any discussions at the scene? 13 A. Just the one about Chad saying, "You got to be 14 kidding me. You're not going to put me in this 15 position" type of thing. 16 Q. What do you know about how the item was 17 returned to the car or how it was -- were you there when 18 Chad said, "Hey, that needs to go back"? 19 A. I remember Kevin -- or I don't know who, but 20 somebody threw stuff back into -- I'm not sure if it was 21 Kevin -- back into the interior of the car after it was 22 flipped back over. 23 Q. Did the tow truck driver know what was going 24 on? 25 A. I'm sure he was there. Page 10 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 625 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 1 Q. I mean, do you remember any -- you don't 2 remember the borrowing of the screwdriver? 3 A. I don't remember. 4 Q. Were you, like, right there when Kevin was 5 removing it? Or, I mean, where were you? 6 A. I was around, all around the car. 7 Q. Okay. 8 A. (Inaudible) too far (inaudible). 9 LIEUTENANT PROLL: Hey, Keith, I'm in an 10 interview right now with Colleen. 11 OFFICER KEVANY: I'm sure I was right there 12 somewhere nearby. 13 BY LIEUTENANT PROLL: 14 Q. Did you see Kevin place anything into a large 15 brown paper bag? No? 16 Did you see Kevin go towards his car with a 17 brown paper bag? 18 A. I don't remember that. I think we were taking 19 the evidence from -- like I said, the scene was -- 20 looking for evidence. 21 Q. So there wasn't any? 22 A. I don't remember off the top of my head. 23 Q. Do you remember the items that -- the hood 24 emblem or whatever, if it was put into a brown paper 25 bag? Page 11 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 626 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 A. No. I mean, they were getting tossed back inside. Q. Just loose? A. Yeah. Q. Do you know of a phone call between Officer Waddell and Kevin after Chad left the scene? I mean, officer -- Kevin and Chad, do you remember a phone call between them after Chad left the scene? A. No. Q. No. So your recollection was -- when Kevin put the -- threw the items back into the car, do you remember if Chad was still there or not? A. I don't know. Q. So they had this conversation of "You've got to be kidding me." A. It was right there at the scene. Q. Okay. And then do you think at that point Chad said, "That better go back in," or do you think Chad left and then called Kevin? Or do you know? A. I have no idea. Q. You don't remember a phone call? A. Uh-uh. Q. Have you known or ever seen Kevin take any vehicle parts during any other accident investigations? A. Not the ones that weren't evidence. Other than Cal -Pacific Reporting, Inc. 415.578.2480 Page 12 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 627 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 i that, no. Nothing of similar type like an emblem or things like that. Q. Do you know if Officer Waddell has a collection of vehicle parts that he has taken from accident investigation scenes? No? Do you know of anything in -- at the traffic office now, anything like mementos that were taken from any accident scenes that would be over there? A. No. The entire time I was with him, we didn't have anything like that show up. Q. Okay. Do you know if he has a collection of vehicle parts that he's taken, at home? A. No. Q. So had -- LIEUTENANT PROLL: I'm in an interview right now with Colleen. Yup. Bye. OFFICER KEVANY: All day long, right? LIEUTENANT PROLL: Mm-hmm. Q. Had Chad not been at that scene or not knew of this, what do you think would have happened? A. I think he would have taken the part and put it, like, on a board in traffic or something or whatever. Q. And what do you think of that as far as the departmental stance, or is that something we should be Cal -Pacific Reporting, Inc. 415.578.2480 Page 13 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 628 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 1 doing? 2 A. No. 3 Q. Okay. Do you think Kevin knows that that 4 shouldn't be done? 5 A. Yeah, I would hope so. I knew it too, but 6 still, it seemed kind of funny at the time. It was 7 meant to be just a joke. 8 Q. Can you think of anything else regarding this? 9 So if I had told you -- would Traynor have been doing 10 the total station with you? 11 A. I don't think so. 12 Q. Hyman? 13 A. No. 14 Q. Cudworth? i5 A. Maybe Cudworth, yeah. 16 Q. Amoroso? 17 A. He came and went, I think. 18 Q. And Goodwin? 19 A. She would have been there probably helping with 20 the scene. 21 Q. Okay. So you and -- you, Cudworth, Goodwin, 22 and Kevin were called out. 23 A. It was probably me and Kevin doing the sticks. 24 Janice was logistics. 25 Q. Do you know if Janice has any involvement in Page 14 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 629 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 the emblem thing? I mean, would she have known about it? A. I don't know if she left and came back. The first time she wasn't there. Amoroso came and went. Jackie went. Yeah. Robert might have been there the whole time. Q. And if the person -- other person doing the sticks, the other person would have known about this emblem thing too? Or is it just something you and Kevin were doing? A. I think if it was doing the sticks, it would be with us. If it was Robert, would have been there the whole time. I think so, but... Q. And you don't -- there's -- so the recollection of others is that Kevin asked the tow truck driver to borrow a screwdriver to remove the emblem? A. I don't know if he asked for a screwdriver or not. Q. But did you see him removing it? A. Was he? Yes. Q. Do you think it was on the front of the car or the side or what? A. Like I said, we looked at the front and the wheel well thing, and they both had the "B." Q. Okay. So when he threw items back in the car, Cal -Pacific Reporting, Inc. 415.578.2480 Page 15 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 630 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Colleen Kevany (January 3rd) Transcribed: June 15, 2015 do you think he threw one item, or do you think he had removed two? A. I'll say at least one, but I don't know. Q. It would have had to have been at least one -- A. At least one. Q. -- if he threw something back in. A. Right. Q. But you don't recall if it was from the front or the wheel or anything? A. I just remember looking at both of them. Q. Anything else that you can think of? A. No. Q. So again, I want to just remind you that this is an active investigation and not to discuss anything about this or notify anybody regarding this. A. Okay.' LIEUTENANT PROLL: It is now 8:54, and I'm concluding this interview and shutting off the tape recorder. End of recording) 000- Cal -Pacific Reporting, Inc. 415.578.2480 Page 16 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 631 In Re: Matter of Kevin Waddell Audio of: Officer Colleen Kevany (January 3rd) IA 13-004 Transcribed: June 15, 2015 1 CERTIFICATE OF TRANSCRIBER 2 3 I hereby certify that the foregoing recorded 4 proceedings in the within -entitled cause were 5 transcribed by me, CHRISTINE BOLDT, CLT, a disinterested 6 person, and were thereafter transcribed into 7 typewriting. 8 9 10 Dated: June 16, 2015 11 12 13 14 16 Christine Boldt, CLT 17 18 19 20 21 22 23 24 25 Page 17 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 632 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 633 From: Staley, Chris To: Proll, Bill Subject: Re: Confidential Personnel Matter Date: Wednesday, June 18, 2014 6:06:16 PM Yes Chris Staley Police Captain riff Police Department 1042 Walnut Street, San Luis Obispo, CA 93401-2729 E cstaley@slocity.org T 805.781.7142 slocity.org On Jun 18, 2014, at 5:34 PM, " Proll, Bill" <bproll&slocity.org> wrote: Ok, what is the status of the narrative I sent you last. Can that be the narrative in the final file? image001 Jpg> From: Staley, Chris Sent: Wednesday, June 18, 2014 10:16 AM To: Proll, Bill Subject: Fwd: Confidential Personnel Matter Bill I need the complete case file including all CDs to give to Katie. Chris Staley Police Captain Police Department 1042 Walnut Street, Stan Luis Obispo, CA 93401-2729 E cstaley@slocity.org T 805.781.7142 slocity.orcg Begin forwarded message: From: "Gesell, Steve" <sgesell a.slocity.org> Date: June 18, 2014 at 10: 10:48 AM PDT To: "Storton, Keith" <kstorton o. sloci org>, "Staley, Chris" cstaley@slocitv.org> Subject: Fwd: Confidential Personnel Matter Hand deliver both files to her please. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 634 Steve Gesell Chief of Police San Luis Obispo Begin forwarded message: From: "Gesell, Steve" <sgesell a.slo6ty, > Date: June 18, 2014 at 10:09:23 AM PDT To: "Lichtig, Katie" <klichtig(@slocity.org> Subject: Re: Confidential Personnel Matter Of course! Steve Gesell Chief of Police San Luis Obispo On Jun 18, 2014, at 8:56 AM, "Lichtig, Katie" klichtig&sla ty.org> wrote: I would like to review the entire file before making a decision. Katie E. Lichtig City manager City of San Luis Obispo, CA 990 Palm Street San Luis Obispo, CA 934401-3249 805-781-7114 www.slocitv.ora From: Gesell, Steve Sent: Tuesday, June 17, 2014 7:08 PM To: Lichtig, Katie Cc: Dietrick, Christine; Irons, Monica Subject: Confidential Personnel Matter Katie, we are .ready to -move forward with serving a letter of intent to Ofc. Waddell provided you concur. I've attached the most relevant documents for your review. Thanks, Steve Steve Gesell Chief of Police E Police Department Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 635 1042 Walnut Street, San Luis Obispo, CA 93401-2729 E sgesell _slocity.org T 805.781.7337 slocity.ora Begin forwarded message: From: "Staley, Chris" cstale sloci .org> To: "Gesell, Steve" sgesell@sloci.ty. or. g> Subject: Al Here you go. Chris Staley Police Captain City of San Luis Obispo] Police Department 1042 Walnut Street, San Luis Obispo, CA 93401-2729 E cstaley (r.slocity.org<.mail.to:cstaleyQslociIy.= T 805.781.7142 s to city. org<htW://www.slocity.org Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 636 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 637 0 Memorandum Service, Pride, Integrity" February 27, 2014 To: Lieutenant Bill Proll From: Captain Keith Storton Subject: Waddell Investigation city of san u s oBIspo Police Department 1042 Walnut SLO, CA 93401 805) 781-7317 In December of 2013 Sgt. Pfarr had come to my office and discussed an encounter hehad with Ofc. Waddell in February of 2013. Sgt. Pfarr relayed that he was a night watchSergeantondutywhenaserious traffic collision occurred involving an expensiveBentley. The nature of the collision required the call -out of the Police Department'sMajorAccident Team which included Ofc. Waddell. At some point while the team was investigating the collision Sgt. Pfarr ha ppenedbytosee if the team needed anything. While on scene he noticed Ofc. Waddell re stop oveaBentleyemblemfromthevehiclewithascrewdriver. Sgt. Pfarr felt this was odd as theemblemhadnothingtodo with the collision and he was uncertain as to why Ofc. Waddell was removing it. He noticed a bag near Ofc. Waddell that he thought containedothervehiclepieces. Sgt. Pfarr approached Ofc Waddell to question him about the emblem. Ofc. WaddellindicatedtoSgt. Pfarr he was retaining the piece for his "collection".. Sgt. Pfarr wasshockedintheresponse -and thought that he must be kidding. He told Ofc. Waddell toPuttheemblembackandleftthe scene. Sgt. Pfarr never saw Ofc. Waddell put hvehicleemblemback, however indicated Ofc. Waddell sent him a text message withphotoofthepartbackinthe car. Sgt. Pfarr had called Ofc. Waddell into his office a shcrt time later to discuss theincident. He told Ofc. Waddell that the taking of the car parts, joke or not, wasinappropriate. He told Ofc. Waddell that as far as he was concerned the issue wasresolved. He would not be sharing the information with anyone else. Nothing further wasdone. Sgt. Pfarr indicated this issue involving Ofc. Waddell has bothered him for some time. He felt that -Ofc. Waddell had truly intended to remove the Bentley emblem for his ownpersonalusebut Ofc. Waddell played it off as a joke because he had caught him. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 638 Memorandum Service, Pride, Integrity - fiy of San LUIS OBISpo Police Department 1042 Walnut SLO, CA 93401 805) 781-7317 Sgt. Pfarr was so concerned he later went to Lt. Bledsoe and Lt. Smith (sometime around September of 2013) to explain the events that took place. He is not aware if Lt. Bledsoe or Lt. Smith had done anything with the information once they received it. I told Sgt. Pfarr this was the first that I had heard about the incident and I was concerned about the allegations. I felt the incident needed to be investigated further. did not question Sgt. Pfarr in further detail and informed him not to discuss the matter with anyone else unless directed to do so. He understood and we concluded ourdiscussion. On December 20, 2013 1 pulled an Administrative Investigation tracking number andassignedtheinvestigationtoyourattention. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 639 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 640 r,Pf PP San Luis Obispo Police Department Policy Manual Personnel Complaint Procedure be provided to the employee prior to any subsequent interview (Government Code 3303(g)). g) If the allegations involve potential criminal conduct, the employee shall be advised of his/her Constitutional rights pursuant to Lybarger. This admonishment shall be given administratively whether or not the employee was advised of these rights during any separate criminal investigation. (Government Code § 3303(h)). h) All employees subjected to interviews that could result in punitive action shall have the right to have an uninvolved representative present during the interview. However, in order to maintain the integrity of each individual employee's statement, involved employees shall not consult or meet with a representative or attorney collectively or in groups prior to being interviewed (Government Code § 3303(i)). i) All employees shall provide complete and truthful responses to questions posed during interviews. j) No employee may be compelled to submit to a polygraph examination, nor shall any refusal to submit to such examination be mentioned in any investigation (Government Code § 3307). k) No investigation shall be undertaken against any officer solely because the officer has been placed on a prosecutor's Brady list or the name of the officer may otherwise be subject to disclosure pursuant to Brady v. Maryland. However, an investigation may be based on the underlying acts or omissions for which the officer has been placed on a Brady list or may otherwise be subject to disclosure pursuant to Brady v. Maryland Government Code § 3305.5). 1020.6.1 ADMINISTRATIVE SEARCHES Any employee may be compelled to disclose personal financial information pursuant to proper legal process; if such information tends to indicate a conflict of interest with official duties, or, if the employee is assigned to or being considered for a special assignment with a potential for bribes (Government Code § 3308). Employees shall have no expectation of privacy when using telephones, computers, radios or other communications provided by the Department. Assigned lockers and storage spaces may only be administratively searched in the employee's presence, with the employee's consent, with a valid search warrant or where the employee has been given reasonable notice that the search will take place Government Code § 3309). All other departmentally assigned areas (e.g., desks, office space, assigned vehicles) may be administratively searched by a supervisor, in the presence of an uninvolved witness, for non -investigative purposes. (e.g., obtaining a needed report or radio). An investigative search of such areas shall only be conducted upon a reasonable suspicion that official misconduct is involved. 1020.6.2 ADMINISTRATIVE INVESTIGATION FORMAT Investigations of personnel complaints shall be detailed, complete and essentially follow this format: Introduction - Include the identity of the employee(s), the identity of the assigned investigator(s), the initial date and source of the complaint. Synopsis - Provide a very brief summary of the facts giving rise to the investigation. Personnel Complaint Procedure - 434 Adopted: 2014/01/08 © 1995-2014 Lexipol, LLC Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 641 San Luis Obispo Police Department Policy Manual Personnel Complaint Procedure Summary Of Allegations - List the allegations separately (including applicable policy sections) with a very brief summary of the evidence relevant to each allegation. A separate recommended finding should be provided for each allegation. Evidence As To Each Allegation - Each allegation should be set forth with the details of the evidence applicable to each allegation provided, including comprehensive summaries of employee and witness statements. Other evidence related to each allegation should also be detailed in this section. Conclusion - A recommendation regarding further action or disposition should be provided. Exhibits - A separate list of exhibits (recordings, photos, documents, etc.) should be attached to the report. 1020.7 DISPOSITION OF PERSONNEL COMPLAINTS Each allegation shall be classified with one of the following dispositions: Unfounded - When the investigation discloses that the alleged act(s) did not occur or did not involve department personnel. Complaints which are determined to be frivolous will fall within the classification of unfounded (Penal Code § 832.5(c)). Exonerated - When the investigation discloses that the alleged act occurred, but that the act was justified, lawful and/or proper. Not Sustained - When the investigation discloses that there is insufficient evidence to sustain the complaint or fully exonerate the employee. Sustained - When the investigation discloses sufficient evidence to establish that the act occurred and that it constituted misconduct. If an investigation discloses misconduct or improper job performance which was not alleged in the original complaint, the investigator shall take appropriate action with regard to any additional allegations. 1020.8 COMPLETION OF INVESTIGATIONS Every investigator or supervisor assigned to investigate a personnel complaint or other alleged misconduct shall proceed with due diligence in an effort to complete the investigation within one year from the date of discovery by an individual authorized to initiate an investigation. In the event that an investigation cannot be completed within one year of discovery, the assigned investigator or supervisor shall ensure that an extension or delay is warranted within the exceptions set forth in Government Code § 3304(d) or Government Code § 3508.1. If the nature of the allegations dictate that confidentiality is necessary to maintain the integrity of the investigation, the involved employee(s) need not be notified of the pending investigation unless and until the employee is interviewed or formally charged within one year of discovery. Upon completion, the report should be forwarded through the chain of command to the commanding officer of the involved employee(s). Once received, the Chief of Police may accept or modify the classification and recommendation for disciplinary action contained in the report. Within 30 days of the final review by the Chief of Police, written notice of the findings shall be sent to the complaining party. This notice shall indicate the findings, however, will not Personnel Complaint Procedure - 435 Adopted: 2014/01/08 © 1995-2014 Lexipol, LLC Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 642 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 643 Ape IFc In the matter of the Appeal of Kevin Waddell EA NO. DATE DOCCIMF,N`r DE SC'RIMON 005 January 7'" Sergeant Brian Amoroso 005 February 51e Officer Greg Benson 005 January 17'h Officer George Berrios 005 February 5' Lieutenant John Bledsoe 005 January 7's Officer Robert Cudworth 0005 January 13' Sergeant Janice Goodwin 005 January 3`s Officer Colleen Kevany 005 January 251e Sergeant Chad Pfarr 005 February 13ie Lieutenant Jeff Smith 005 January 27h Officer Keving Waddell 004 November 18ie Detective Adam Stonkey 004 November 15ie Lieutenant Jeff Smith 004 December 12' Lieutenant Jeff Smith 004 November 151e Sergeant Chad Pfarr 004 December 13'" Sergeant Chad Pfarr 004 December 12ie Officer Kevin Waddell Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 644 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 645 its tin", CAL, -PACIFIC REPORTING, INC, Certified Transcript of Audio Recording of: Sergeant Chad Pfarr (November 15th) Transcribed: June 18, 2015 Case: In Re: Matter of Kevin Waddell IA 13-004 Reporter: Christine Bo/dt, CLT 18 Professional Center Parkway, 3rd Floor San Rafael, CA 94903 Phone: 415.578.2480 Fax: 415.952.9451 Email: support@calpacificreporting.com Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 646 INTERVIEW OF SERGEANT CHAD PFARR Conducted by Lieutenant John Bledsoe) LDF Matter No. 13-3248 November 15 TRANSCRIBED ON JUNE 18, 2015 BY: CHRISTINE BOLDT, CLT CAL -PACIFIC REPORTING 18 Professional Center Parkway, 3rd Floor San Rafael, California 94903 415) 578-2480 Support@CalPacificReporting.com 000- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 647 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Chad Pfarr (November 15th) Transcribed: June 18, 2015 LIEUTENANT BLEDSOE: Today is November the 15th ori Friday. It is about 9:03 a.m. I'm here with Sergeant Pfarr. This is regarding administrative inquiry 13-004 on Kevin -- Officer Kevin Waddell. I'm going to go ahead and get started with the questioning with Sergeant Pfarr. Q. Sergeant Pfarr, I understand you're alleging that Officer Waddell made some false statements to you regarding a scheduling issue. A. Correct. Q. And can you tell me what led up your conversations and our text messages that led to Officer Waddell making these false statements? A. On October 19th I was working as the day watch supervisor and had had a conversation with Detective Stonkey the day prior as he was leaving work for the day. Q. On the 18th? A. On the 18th of October. And he commented, I'll see you tomorrow. I'm in working CAT." So that shift was supposed to start at 11:00 a.m. He -- at 11:15 I'd noticed that nobody was here. I hadn't seen anybody yet that was supposed to be in working CAT. Q. Let me just clarify. So you had a conversation Cal -Pacific Reporting, Inc. 415.578.2480 Page 2 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 648 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Chad Pfarr (November 15th) Transcribed: June 18, 2015 with Officer Stonkey on the 18th? A. Correct. Q. Was it the afternoon? morning? A. It was when he was leaving at the end of his shift. So probably around 5:30 on the 18th. Q. And he had told you that he was working CAT on the 19th -- A. Correct. Q. -- on the shift beginning from 11:00 to 16: 00? A. Correct. Q. Okay. A. So at around 11:15 I hadn't been contact by anybody yet to get their equipment out of the cupboards downstairs from the patrol box or anything like that. So I started wondering if they were here or not. So I -- and I need to go back a little bit to kind of lay the groundwork. Q. Sure. A. But on the 12th, I was the supervisor that day. No officers had shown up for the 11:00 o'clock shift. Q. The previous Saturday? A. Correct. Q. Okay. A. So I went down to the locker room to see if officers were there before I start making phone calls, Cal -Pacific Reporting, Inc. 415.578.2480 Page 3 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 649 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Chad Pfarr (November 15th) Transcribed: June 18, 2015 and I found Officer Waddell finishing getting dressed. Arid so we had a brief conversation. He was running late. Q. What time was that, approximately? A. That was at about 11:20. Q. Okay. A. So he was about 20 minutes late for the shift the Saturday before the day in question. So I had talked with Lieutenant Smith during the week about how we should address that problem, and I was going to -- we decided I would talk to him about it on the 19th or the next time I saw him, and that was going to be the 19th. So I was going to have that conversation with him. So the on 19th when nobody had shown up, I hadn't seen anybody yet, I put a call in to Lieutenant Smith since I had had the conversation with Detective Stonkey the day before. I looked at the schedule and now there was nobody listed on the schedule on speed shift to be working. So before I started making phone calls to the officers that I thought were supposed to be working it, I put a call in to Lieutenant Smith to see if that shift had been cancelled and I just hadn't been notified yet. Q. Let me -- hold that thought. When you spoke to Detective Stonkey the day Cal -Pacific Reporting, Inc. 415.578.2480 Page 4 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 650 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Chad Pfarr (November 15th) Transcribed: June 18, 2015 before on the 18th, he told you he was working. A. Correct. Q. Did he tell you who he was working with? A. I don't remember. I don't think so, but he may have. Q. When you made the phone call to Lieutenant Smith, did you know who was scheduled to be working, or if anyone was scheduled? A. You know, I think he did say Kevin because I -- when I made that phone call, I was thinking to myself he's going to be -- I think he's late again. And it was troubling to me that he'd be late for two shifts. So before I called him on it and made an issue about it and addressed the tardiness issue, I wanted to make sure that Lieutenant Smith hadn't already cancelled the shift. Q. Okay. So you were calling Lieutenant Smith just to verify if people were scheduled to work -- A. Correct. Q. -- that 19th? A. Yes, because it was no longer listed in speed shift as it normally would be. Q. Okay. A. So that turned out to be just an oversight on our part, and it hadn't been entered for the days that Cal -Pacific Reporting, Inc. 415.578.2480 Page 5 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 651 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 it should have been entered. Audio of: Sergeant Chad Pfarr (November 15th) Transcribed: June 18, 2015 Q. But it was on the written list? A. It was on the written sign-up list. So during that initial phone call to determine if somebody was going to work to Lieutenant Smith, I did not get a response. And then believing -- I did -- when I did talk to Stonkey the day before, he did mention Kevin, because I shot an e-mail or a text message to Kevin after not receiving -- or a call from Lieutenant Smith, after that call went unanswered, shot Kevin an e-mail text message -- sorry -- and asked, "Are you still working today?" Q. This was on the 19th? A. This was on the 19th. Q. At about what time? A. About -- it's on the -- I've got a screen shot, but it's about ten after or so. Q. Okay. It's after he's scheduled to work. A. After he's scheduled to be at work. Q. And he was scheduled at 11:00. A. Correct. Q. Okay. A. So the response I got from him was -- it looked like he had fat -fingered his typing, like he was texting it and just didn't look at what he'd texted. So the Cal -Pacific Reporting, Inc. 415. 578.2480 Page 6 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 652 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Chad Pfarr (November 15th) Transcribed: June 18, 2015 words were a little jumbled up, but the meat of the message was that he had met with Lieutenant Smith the day before in the locker room and discussed him coming in late at 11:30 instead of at 11:00, and Lieutenant Smith had authorized that, basically. And those -- so I shot him a text back saying that his text didn't make any sense and to come see me when he got to the station and was ready to work so I could discuss the issue with him. So I immediately received another text message from him saying he had spoken -- clarifying the first text message, and he -- in that text message, he said, I arranged this with Lieutenant Smith yesterday. He authorized me to be late." Q. I'm going to show you a copy of the text messages that I've received for this report. Is this what you recall? A. Yes. Q. You texted, "Are you still coming in today?" A. At 11:00, correct. Q. And did you -- you said, "Never mind, wrong Kevin." You thought that was -- A. I thought it was Kevin Phillips that I had texted, and then I checked my text messages to confirm, and it was the wrong -- or the correct Kevin. Cal -Pacific Reporting, Inc. 415.578.2480 Page 7 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 653 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Sergeant Chad Pfarr (November 15th) IA 13-004 Transcribed: June 18, 2015 Q. Okay. And this statement here, "Yes. Sorry. I'had worked out ahead of one with Lieutenant Smith. I'm on the way in now," that was a text message you received from Waddell shortly after? A. Correct. Q. So obviously, there's some typos in there. You indicate, "That made no sense. Stop by when you get here." That's your text? A. Correct. Q. And this is the one you received? A. Yeah. Q. It says, "Basically I had talked to Smith yesterday about coming in at 11:30. He said fine, no problem, but I will." A. A indicating he would see me when he got here. Q. And then the next one says, "But I will stop by. A. Correct. Q. So those are clearly text messages from you to Kevin and back from Kevin. A. Correct. Q. Kevin Waddell. A. Correct. Q. So after you'd texted Kevin and he said he was coming in, what happened? Cal -Pacific Reporting, Inc. 415.578.2480 Page 8 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 654 1 2 3 4 5 6 7 8 9 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Chad Pfarr (November 15th) Transcribed: June 18, 2015 A. Just prior -- or I sent that first text to Kevin trying to determine where he was, and I walked out of my office. And as I walked out of the office, Detective Stonkey came walking by. So I asked him if he knew what was going on with his partner, and he told me he had received a text from Kevin shortly before indicating hers going to be 30 minutes late. Then I received those other text messages from Kevin telling me he was going to be 30 minutes late. So after that some time went by. At about 11:35 he came into my office. And before I could say anything, he said, "Hey, I talked to Lieutenant Smith yesterday. We talked in the locker room, and I told him that my daughter had a dance function, and it was her first one for this dance season." And he wanted to go to that, and Lieutenant Smith had authorized him to come in late so he could attend that dance function of his daughter's. Q. So you had a verbal conversation with him in person -- A. Yes. Q. -- after this? After the text messages when he came in? A. Correct. Q. And he had told you that he had spoke with Cal -Pacific Reporting, Inc. 415. 578.2480 Page 9 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 655 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Lieutenant Smith -- A. Yes. Audio of: Sergeant Chad Pfarr (November 15th) Transcribed: June 18, 2015 Q. -- and got this cleared? A. In the locker room the night prior. So on the 18th when Lieutenant Smith was leaving at about 1600 hours, 16:30, they were both in the locker room together, and that conversation transpired between the two of them. Q. So at this point you thought that Officer Waddell had cleared this with Lieutenant Smith -- A. Everything was fine. Q. -- and it was fine? A. Yeah. Q. Did you ever have -- later have a conversation with Lieutenant Smith? A. Yes. Q. How did that happen? A. So Lieutenant Smith was off duty at the time. He later saw my missed call to him and returned the call to make sure I didn't need anything. And at that point during that conversation, he asked why I called, so I told him and told him everything had been taken care of. And he said -- he indicated to me that he had never had that conversation with Officer Waddell in the locker room. He said he did Cal -Pacific Reporting, Inc. 415.578.2480 Page 10 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 656 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell TA 13-004 Audio of: Sergeant Chad Pfarr (November 15th) Transcribed: June 18, 2015 see Officer Waddell when he went and changed, when Lieutenant Smith went into the locker room to change, and while he was there, he saw Officer Waddell text messaging, and they acknowledge each other's presence but did not have any sort of conversation about coming in late for work. Q. So after that conversation with Lieutenant Smith, it was your understanding that the -- what Officer Waddell told you was not truthful? A. Correct. Q. And what did you do in response to that? A. Lieutenant Smith asked me to draft a memo documenting what had transpired between Officer Waddell and I and the conversations we had, both via text message and in person in the office. And he asked me to submit that to him the following day, and that's what I did. Q. Have you had any conversations with Officer Waddell since this incident? A. When he -- I called him back into the office after I talked with Lieutenant Smith and told him that I had spoken with Lieutenant Smith and that the information he had given me was not accurate and that there was going to be -- Lieutenant Smith would be contacting him at a later date to discuss the issue of Cal -Pacific Reporting, Inc. 415. 578.2480 Page 11 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 657 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 being truthful. Audio of: Sergeant Chad Pfarr (November 15th) Transcribed: June 18, 2015 Q. Did Officer Waddell make any statements or comments to you at that time? A. He started to. He started to tell me that he was sorry, he didn't mean to. And I was pretty upset, the fact that he had -- I perceived he lied to me. So I cut him off and told him not to, that he should probably just not say anything at that point. Q. Did you tell him that you thought he lied to you? A. Yes. Q. And that's when he tried to explain and you cut him off? A. Correct. Q. Anything I left out that you think is relevant? A. I don't think so. I never had the conversation with him about the tardiness, that topic. I never addressed that issue. I was going to address it later that night after we realized what happened. He had already been so late, Detective Stonkey had been held up waiting, and the CAT shift still hadn't been worked yet. So instead of having that conversation after all this happened, I figured we would address that at a later date. And that still has not been addressed. Q. Okay. So let me just go back and clarify. Cal -Pacific Reporting, Inc. 415.578.2480 Page 12 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 658 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ME 25 In Re: Matter of Kevin Waddell Audio of: Sergeant Chad Pfarr (November 15th) IA 13-004 Transcribed: June 18, 2015 On October 12th, which was a Saturday, Officer Waddell was scheduled to work an overtime shift for CAT assignment. You saw that he was late that day, and you were going to confront him on that on the 19th when he came in to work because you realized from the 18th when you were told by Detective Stonkey that they were working an overtime shift Waddell would be coming in on the 19th and you were going to discuss his tardiness from the 12th on that date. A. Correct. Q. He came in late on the 19th -- or I'm -- yeah, on the 19th and after texting you that he had received permission from Lieutenant Smith that he was going to be showing up late. A. Yes. Q. You later spoke with Lieutenant Smith, and he told you he never had a conversation and never cleared Officer Waddell for -- with being late. A. Yes. Q. Okay. And this is your memo that's written here? A. Yes. Q. The only thing that's not really clarified, you said that -- after the text messages you indicate later that shortly after your conversation with Waddell -- so Cal -Pacific Reporting, Inc. 415.578.2480 Page 13 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 659 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Chad Pfarr (November 15th) Transcribed: June 18, 2015 I just want to clarify that you did have a verbal conversation with him after the text messages when he came in late, and he had told you that he had had the conversation with Lieutenant Smith in the locker room the night before -- A. Yes. Q. -- clearing him for coming in late. A. Correct. Q. Okay. I have nothing else, unless you think of something that we've left out. A. Nope. Q. I would ask that you not discuss this with anybody else at this time because this is a confidential administrative inquiry. A. Okay. Q. You understand that? A. Yes. Q. Thank you. End of recording) 000- Cal -Pacific Reporting, Inc. 415.578.2480 Page 14 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 660 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Sergeant Chad Pfarr (November 15th) IA 13-004 Transcribed: June 18, 2015 CERTIFICATE OF TRANSCRIBER I hereby certify that the foregoing recorded proceedings in the within -entitled cause were transcribed by me, CHRISTINE BOLDT, CLT, a disinterested person, and were thereafter transcribed into typewriting. Dated: June 18, 2015 Chris Boldt, CLT Cal -Pacific Reporting, Inc. 415. 578.2480 Page 15 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 661 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 662 App 6,49 1. .. iii iniiiiir . iiia CAL -PACIFIC REPORTING, INC. Certified Transcript of Audio Recording of: Sergeant Chad Pfarr (December 13th) Transcribed: June 18, 2015 Case: In Re: Matter of Kevin Waddell IA 13-004 Reporter: Christine Bolds CLT 18 Professional Center Parkway, 3rd Floor San Rafael, CA 94903 Phone: 415.578.2480 Fax: 415.952.9451 Email: support@calpacificreporting.com Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 663 INTERVIEW OF SERGEANT CHAD PFARR Conducted by Lieutenant John Bledsoe) LDF Matter No. 13-3248 December 13 TRANSCRIBED ON JUNE 18, 2015 BY: CHRISTINE BOLDT, CLT CAL -PACIFIC REPORTING 18 Professional Center Parkway, 3rd Floor San Rafael, California 94903 415) 578-2480 Support@CalPacificReporting.com 000- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 664 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Chad Pfarr (December 13th) Transcribed: June 18, 2015 LIEUTENANT BLEDSOE: Today is December the 13Th. It is about 2:55 p.m. I'm here with Sergeant Chad Pfarr, and I'm going to re -interview him regarding the IA case on Kevin Waddell, 13-004. Q. Sergeant Pfarr, let's go back to October the 19th when you realized that Officer Waddell had not responded to work before 11:00 p.m. -- or 11:00 a.m.; I'm sorry. You sent him a text message, and he indicated to you that he was on his way in -- A. Correct. Q. -- after texting you and giving you the impression that he had been given permission by Lieutenant Smith -- based on the text messages, that he had gotten permission the day before, coming to work; is that correct? A. Yes. Q. When he came into your office, what was his demeanor? A. He was acting fairly normal. He appeared a little nervous, but reiterated what had apparently taken place between he and Lieutenant Smith in the locker room the night before, which would have been the 18th. Q. Specifically what did he tell you was his reason for being late and his reason for permission, or Cal -Pacific Reporting, Inc. 415.578.2480 Page 2 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 665 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Chad Pfarr (December 13th) Transcribed: June 18, 2015 that he got permission? A. He said that he -- his daughter had some sort of a dance event, a recital or a practice or something to that nature, and it was her first one for the season, and he wanted to be able to attend that prior to coming in to work. So he had seen Lieutenant Smith in the locker room as Lieutenant Smith was leaving for the day on the 18th and asked if he could come in 30 minutes late for his scheduled CAT shift. Q. So he told you that he had a conversation with Lieutenant Smith in the locker room on the 18th, the day before his overtime shift? A. Correct. Q. And he told you that that conversation consisted of just what you had told me, about the daughter's dance recital and him getting permission from Lieutenant Smith to come in to work a half an hour late? A. Correct. Q. When he came into your office, when he first arrived at work before you had spoke with Lieutenant Smith, were you upset or angry with him at all? A. Not at all. Q. What was your behavior like? I mean, your demeanor with him? A. What I would be any other day. I was totally Cal -Pacific Reporting, Inc. 415.578.2480 Page 3 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 666 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Chad Pfarr (December 13th) Transcribed: June 18, 2015 normal, not excessively happy, not upset. I just asked him what had happened, and he voluntarily gave me the story again about seeing Lieutenant Smith in the locker room and getting permission to come in a half-hour late. And I was going to talk to him about the tardiness issues from the previous shifts that he had missed, but since Detective Stonkey was already here for 45 minutes by that time, I figured I'd talk to him about that later. So that never even came up during that initial meeting. And he left to go 10-8 with Stonkey downtown on foot. Q. Okay. And after that Lieutenant Smith called you back. Eventually you discovered that he had not had that conversation with Lieutenant Smith in the locker room as he had told you that he did, correct? A. Correct. Q. And you -- did you call him back into the office, or did he come in on his own? A. No. I sent him -- or I called him on the radio and asked him to come to the station to see me. And that's when he arrived ten minutes later, give or take a few minutes. Q. How much -- what time was it approximately when this happened? A. Maybe 12:30-ish, maybe. Cal -Pacific Reporting, Inc. 415.578.2480 Page 4 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 667 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Chad Pfarr (December 13th) Transcribed: June 18, 2015 Q. So he'd been to work about an hour, then? A. About, yes. Q. Give or take? A. Yeah, give or take. I'd have to go over the radio log. But he had been here a little bit. They had made it downtown and had managed to contact somebody before I was able to get him on the radio. Q. And were you upset with him at that point? A. I was upset. On the radio, he would have known that. When he got back to the office, I was definitely upset. Q. How was he -- how was his behavior, demeanor? A. Nervous. I -- as soon as he walked in, I told him that the information he had given me before was not factual; that I had talked with Lieutenant Smith after he returned my call; and that he had lied to me about getting permission. I told him that Lieutenant Smith would be contacting him in the very near future to let him know what was going to happen and let him know if it was going to be disciplinary or what. But that was between the two of them. And I told him not to say anything to me at that point only because I was upset and I didn't want him to make matters worse. Q. After you told him that you thought he'd lied to you, did he make any statements or comments? Cal -Pacific Reporting, Inc. 415.578.2480 Page 5 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 668 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 ask? Audio of: Sergeant Chad Pfarr (December 13th) Transcribed: June 18, 2015 A. He started to, and I cut him off. Q. So you didn't allow him to -- A. Correct. Q. -- comment on anything. Okay. Anything else you can think of that I didn't A. No. I don't know. LIEUTENANT BLEDSOE: All right. Thank you. End of recording) 000- Cal -Pacific Reporting, Inc. 415. 578.2480 Page 6 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 669 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Sergeant Chad Pfarr (December 13th) Transcribed: June 18, 2015 1 CERTIFICATE OF TRANSCRIBER 2 3 I hereby certify that the foregoing recorded 4 proceedings in the within -entitled cause were 5 transcribed by me, CHRISTINE BOLDT, CLT, a disinterested 6 person, and were thereafter transcribed into 7 typewriting. 8 9 10 Dated: June 18, 2015 11 12 13 14 15 1 16 Christine Boldt, CLT 17 18 19 20 21 22 23 24 09 Cal -Pacific Reporting, Inc. 415.578.2480 Page 7 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 670 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 671 PqT, h AA- rrErrrrur sr o • , rrrr CAL -PACIFIC REPORTING, INC. Certified Transcript of Audio Recording of: Lieutenant Teff Smith (12/12/2013) Transcribed: June 17, 2015 Case: In Re: Matter of Kevin Waddell IA 13-004 Reporter: Christine Boldt, CLT 18 Professional Center Parkway, 3rd Floor San Rafael, CA 94903 Phone: 415.578.2480 Fax: 415.952.9451 Email: support@calpacificreporting.com Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 672 INTERVIEW OF LIEUTENANT JEFF SMITH LDF Matter No. 13-3248 December 12, 2013 TRANSCRIBED ON JUNE 17, 2015 BY: CHRISTINE BOLDT, CLT CAL -PACIFIC REPORTING 18 Professional Center Parkway, 3rd Floor San Rafael, California 94903 4 15) 578-2480 Support@CalPacificReporting.com 000- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 673 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Lieutenant Jeff Smith (12/12/2013) Transcribed: June 17, 2015 THE INTERVIEWER: Today is December the 12th, 2013, and it's about 1655 hours. I'm interviewing Lieutenant Smith again regarding administrative inquiry 13-004, Officer Kevin Waddell's case. Q. Lieutenant Smith, I understand that on the 19th of October, Kevin Waddell showed up late, and it's believed that he may have stated that he's been given permission from you to show up late for that day of work. Is that -- did you give him permission for -- to come in late on the 19th? 1 Q. Have you given Officer Waddell permission to come in late or leave early on any other overtime CAT shifts? A. I believe I have, yes. Q. Do you recall how many times? A. I do not recall because I have -- other officers have, you know, contacted me saying there was maybe extenuating circumstances regarding time off, but as to Kevin specifically, Officer Pfarr had brought it to my attention that he was concerned about him showing up regularly or leaving early. And I had instructed Officer Pfarr to monitor it because it wasn't something that I was specific that this was not a flexible shift. And in the last two -- just background information. On Cal -Pacific Reporting, Inc. 415.578.2480 Page 2 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 674 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Lieutenant Jeff Smith (12/ 12/2013) Transcribed: June 17, 2015 the last two notifications when I've assigned the CAT shifts after I've pulled down the sign-up sheet, I have given e-mails saying these shifts are from 11:00 to 4:00, and that's when officers are expected to be there. Q. Did Officer Waddell ever contact you by phone, e-mail, text message or anything specifically that you recall, asking to come in late or leave early for any shift? Do you remember any specific time? A. No, because again, other officers have done it, and I can't specifically remember Officer Waddell asking to come in late. I do remember -- I don't have dates, but him saying he can't make one of the shifts, and letting me know -- asking me what he needs to do. But specifically saying if he can come in late, I don't remember specifically any dates or time. Q. Okay. Do you have any saved e-mails from Officer Waddell asking for time off or come in late or early? A. No. And I know I don't have any in my deleted because I just emptied it two days ago. Q. Okay. But it is possible that he has asked you in the past to come in late or leave early. A. Yeah. But it would be for a specific day, not on a regular basis. Q. Not just -- you wouldn't have given him a Cal -Pacific Reporting, Inc. 415.578.2480 Page 3 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 675 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Lieutenant Jeff Smith (12/12/2013) Transcribed: June 17, 2015 blanket statement that "You can come in at your leisure; early, late"? A. Actually that is -- would be even contradictory to what I've told these guys, that the shift is specific times, and it's 11:00 to -- it was 11:00 to 4:00. Q. Do you have any of the sent e-mails that you've sent for CAT overtime regarding that? A. I just have to -- I don't. I wish I did. Q. The sent items to? A. Because I deleted all of them. I -- Sergeant Pfarr might because he had saved those when I had sent those out in case he needed to reference them. So if you talk to Sergeant Pfarr again, he might have those e-mails that I've sent out. Q. Okay. Are you aware of any other times that Officer Waddell has showed up late without getting permission? A. I'm not. Again, like I said, Sergeant Pfarr had brought it to my attention that he was concerned that he was showing up during nonspecific times, and asked if he had ran that by me. And I told Sergeant Pfarr no, and I asked that he keep an eye on it and address it if it is happening where Officer Waddell was showing up late, which I think was one of the reasons Sergeant Pfarr checked with Officer Waddell during this Cal -Pacific Reporting, Inc. 415. 578.2480 Page 4 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 676 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Lieutenant Jeff Smith (12/12/2013) Transcribed: June 17, 2015 specific incident, was because I had talked to him. I said on the weekends he is to be there from 11:00 to 4:00. If he's not, Sergeant Pfarr was to address it. And over that week, Sergeant Pfarr had been monitoring when Officer Waddell was arriving at work. THE INTERVIEWER: All right. That ends this interview. We're done. End of recording) 000- Cal -Pacific Reporting, Inc. 415.578.2480 Page 5 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 677 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Lieutenant Jeff Smith (12/12/2013) IA 13-004 Transcribed: June 17, 2015 CERTIFICATE OF TRANSCRIBER I hereby certify that the foregoing recorded proceedings in the within -entitled cause were transcribed by me, CHRISTINE BOLDT, CLT, a disinterested person, and were thereafter transcribed into typewriting. Dated: June 17, 2015 71 Christ Boldt, CLT Cal -Pacific Reporting, Inc. 415. 578.2480 Page 6 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 678 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 679 Memorandum Service, Pride, Integrity" December 28, 2013 To: Chief Gesell From: Captain Storton city of san Luis owspo Subject: Administrative Inquiry 13-004P — Officer Kevin Waddell Police Department 1042 Walnut SLO, CA 93401 805) 781-7317 SUMMARY OF INVESTIGATION On Oct. 28 2013, 1 assigned Lt. Bledsoe an Administrative Inquiry involving Officer Kevin Waddell. The inquiry involved a verbal and text conversation Ofc. Waddell had with a supervisor, Sgt. Chad Pfarr. The allegations against Officer Waddell are that he made false statements to Sergeant Pfarr when asked about coming in late for an assigned overtime shift. ALLEGATION Lieutenant Bledsoe completed a review of this matter which included numerous interviews with the following allegations and recommendation: Allegation #1- Violation of San Luis Obispo Rules and Regulations Standard of Conduct section IV. I- which states in part, "A Department employee shall not knowingly or willfully make a false verbal statement or give false information to a Department Supervisor or Investigator." RECOMMENDED DISPOSITION: Sustained Allegation #2 - Violation of San Luis Obispo Rules and Regulations Standard of Conduct section III. B - which states in part, "Employees of the department shall be punctual in reporting for duty at the time and place designated by their supervising officer. Any inability to comply with these instructions shall be reported by the employee to the department prior to the time set for reporting. RECOMMENDED DISPOSITION: Sustained Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 680 Memorandum Service, Pride, Integrity" CAPTAIN REVIEW AND FINDINGS city of san Luis ompo Police Department 1042 Walnut SLO, CA 93401 805) 781-7317 Lieutenant Bledsoe completed his investigation and submitted his report to me sustaining a violation of Allegation ##1. 1 have reviewed Lieutenant Bledsoe's report and concur with his recommended disposition. Allegation #1 — "...willfully make a false verbal statement or give false information to a Department Supervisor..." Ofc. Waddell made verbal statements and sent text messages to Sergeant Pfarr indicating he had approval from Lieutenant Smith to come in late for an overtime shift on Oct. 19t", 2013. Sergeant Pfarr attempted to verify this information with Lieutenant Smith and discovered the statements provided by Officer Waddell were false. Statements provided by Officer Waddell during the Al interview conflicted with the statements provided by both Sergeant Pfarr and Lieutenant Smith. Additionally, the text messages written by Officer Waddell clearly indicate he knowingly provided information to Sergeant Pfarr that he did in fact have permission to come in late, again converse to the statements provided by both Sergeant Pfarr and Lieutenant Smith. Allegation #2 — "Employees of the department shall be punctual in reporting for duty..." Ofc. Pfarr had noticed on occasion that Officer Waddell was not showing up for some of his scheduled shifts in a timely manner. This prompted Sgt. Pfarr to text Ofc. Waddell on two occasions to inquire why he was late for work. On one occasion Ofc. Waddell was late because he forgot to get gas and the second was the Oct. 19t", 2013 date which is highlighted in this investigation. Officer Waddell was found not to have supervisory approval to arrive late for work. RECOMMENDED ACTION: The complaint has been investigated in accordance with department policy. Violations of Law, City policies, and the Department Rules and Regulations are cause for disciplinary action per SLO Municipal Code Section 2.36.320. Based upon the findings I recommend that Officer Waddell receive time off and a one- time pay equivalent in value to (80) hours of his current salary. Additionally, I recommend that he be removed from his current special assignment as a SWAT Team member and selection as a Daytime Downtown Bicycle Officer that was to begin January 2, 2014. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 681 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 682 nternatlo al, Footprint ,association Central Coast Chapter 73 CERTIFICATE OF APPRECIAT101Nt- Presented to Officer Kevin Waddell in recognition of outstanding professionalism and a superior record of dedicated law enforcement service 1 to the citizens of San Luis Obispo County. Kevin, you clearly model the highest standard Of excellence in public safety. Tom Portz, Chairman Peace Officers' Recognition Program eff Norton, President IFA Chapter 73 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 683 Contra Costa County, Office ofthe Sheriff' LawEnforcement Training Center J1 ! it rte' rte. g Wg-mv ted le,-w,ae, 6590- 33603- 00 Cpt Jrm Grottkau Training Director Lt. Steve Borbely TrainingManaor Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 684 Ilan 11anrarh coltr r CERTIFICATE OF ACHIEVEMENT This is to certify that Kevin James Waddell has satisfactorily completed the requirements for the certificate in CSU General Education Breadth as prescribed by the Board of Trustees of the Allan Hancock Joint Community College District December 11, 2013 Date Robert Parisi Academic Dean Superintendent 1 President Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 685 Contra Costa County, Office of the Sheriff LawEnfoTcement Trwrmig Center je"'Ir"Iweeeo,"a e0,y)#k1lVf, /)Z, m IlMes -1411, 20-13 1,3- oo Cptfim Grottkau LL Steve Borbely TrainDirector TmhulqgManager Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 686 EDMUND G. BROWN JR. GOVERNOR STATE OF CALIFORNIA DEPARTMENT OF JUSTICE KAMALA HARRIS ATTORNEY GENERAL The Commission on peace' (9-!7ffiger tandards and Training Hereby awards the 51dnanced Tert%f rate to KEVIN JAMES WADDELL November 23, 2011 For having fulfilled the requirements for character, education, training, and experience as prescribed in Title 11, Division 2, of the California Code of Regulations. ROBERT T. DOYLE CHAIRMAN A 89032 PAUL CAPPITELLI EXECUTIVE DIRECTOR LVn Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 687 r 1. Inh a I 2 . TRANSCRIPTING COLLEGE Hartnell Colleee (831)755-6711 80 Hours / 2 Units P.O.S.T. Control # 2540-21540-11001 This is to certij that WADDELL, KEVIN J. has successfully completed Motorcycle Instructor September 6, 2011 - September 15, 2011 TRAINING MANDATES SATISFIED Pass course of 80 hours Steven T. Cushing CEO/President South Bay Regional Public Safety Training Consortium n0drique2 txctor Ci olice Department EVERGREEN ©coiS.FPF.'.r 011LONE ® De / VALLEY 1 IJI.Al Z.a COLLEGE'yMATEo Gra}.ui i { —Collegelowe4.a1a A'c Providing Fxcellence and Leadership in Public Safety Training through Regional and Community Partnerships Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 688 Mb Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 689 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 690 C UtRin! This is to c TUVI'On`3.. vabbrll has successfulIT completed 80 hours of SP.Q.` O-. certified instruction in the following: Traffir CalftsYan CN ovember 6, 2009 mate 3o6 (Brooks, Sheriff Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 691 4,. i C rirhr 41k, Center This is to certif T that Imit-n 51. vabbell has success fu[[y completed 80 hours of T.0.8.5-. certified instruction in the following.. A JjancE Traffir Caffistlan Apri[ 3, 2009 Date Tob cBrooks, Sheriff Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 692 QoIT-AYT,n ava C,Enfvr phis is to certify that eUin 1J. 3 u e11 has successfu[[T completed 40 hours of .Q,S:", certified instruction in the following; raffir Ca'If I-slan I February 27, 2009 mate 06 3roo s, Sheriff Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 693 i BAY i ThACADFAWe y DALY CITY POLICE DEPARTMENT P.O.S.T. Control N 2540-32550-08006 This it to certify Haat KEVIN J. WADDELL Basic Motorcycle December 8, 2008 - December 19, 2008 Steven T. CushingExecutiveDirector South Bay Regional Public Safety Training Consortium TRAINING MANDATES SATISFIED Pass course of 80 hours/2 Units TRANSCRIPTING COLLEGE 11 College 755-6711 V ] MPC DR1, YArrir SANMMOLUGE tl:I e .u xm _ - -tee , - - Providing Excellence and Leadership in Public Safety Training through Regional and Community Partnerships Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 694 ARNOLD SCHWARZENEGGER. GOVERNOR STATE OF CALIFORNIA DEPARTMENT OF JUSTICE JERRY BROWN ATTORNEY GENERAL The Commission on Beate Officer tandards and Training Hereby awards the intermediate Certificate to KEVIN JAMES WADDELL May 16, 2008 For having fulled the requirements for character, education, training, and experience as prescribed in Title 11, Division 2, of the California Code of Regulations. 'I r u RONAL LOWENBERG PAUL CAPPITELLI CHAIRMAN I 92915 EXECUTIVE DIRECTOR I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 695 On recommendation of the staff of the Academy, this q. ecrarticatic' of Attaimmt is awarded to KE VIN J. WADDELL, # 89650 who has successfully fulfilled the requirements prescribed by the Academy for LIDAR OPERATOR POST Certified — Course Number 1270-23320 — 8 hours done- in San Luis Obispo, " on this, the Id" day of December, two -thousand and seven. CHP 195 (Rev 11-95) OPI 091 kv,Q A-- Commissioner Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 696 On recommendation of the staff of the Academy, this Clan'Twa& of Attai=ttt is awarded to KEVIN J. WADDELL, # 59650 who has successfully fulfilled the requirements prescribed by the Academy for RADAR OPERATOR POST Certified — Course Number 1270-23300 — 24 hours ne in San Luis Obispo, California on this, the 19t day of December, two thousand and seven. CHP 195 (Rev 11-95) OPI 091 Commissioner Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 697 Aj ALLAN HANCOCK COLLEGE JA W hisets to of certify Cnu# Kevin Waddell successfully completed the forty -hour P.O.S.T. certified Traffic Collision Investigation course on February 29, 2005. nstructor Coordinator Director, Administration of stice Dean, Ac demic Affairs Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 698 GRAY DAVIS GOVERNOR STATE OF CALIFORNIA DEPARTMENT OF JUSTICE BILL LOCKYER ATTORNEY GENERAL The COMMiSSiOR on OUR Offirtr tandards and Tralft§ Hereby awards the 3asir &rtificate to KEVIN J. WADDELL Municipal Police September 23. 2003 For having fulfilled the requirements for character, education, training, and experience as prescribed in Title 11, Division 2, of the California Code of Regulations. JAMES FOX KENNETH O'BRIENCHAIRMAN 0 115821 EXECUTNE DIRECTOR Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 699 r ALLAN HANCOCK COLLEGE wulel of Cnur#le t s is to certify that Kevin, Waddell has successfully completed the following POST Perishable Skills course Emergency Vehicle Operations Course — 8 hours On August 27, 2007 Instructor xt X.7 Dean, Academic Affairs 4- Director, Administrati n of Justice 1 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 700 MASTER 10851 AWARD in cooperation with proudly recognizes KEVIN WADDELL for superlative efforts in VEHICLE THEFT RECOVERY by meeting the criteria of khe 10851 Award for the fifth time y 1st C RNIA HIGRWAY PATROL AAA F603 (Mar 2007) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 701 THE 10851 AWARIF in cooperation with o proudly recognizes KEVIN WAISD ILL for superior efforts in VEHICLE HEFT RECOVERY 2nd6-- L1 eia o PATROL- — - — - --------------- AAA F606 (Apr 2002) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 702 THE 10851 AWARD in cooperation with proudly recognizes for superior efforts in VEHICLE THEFT RECOVERY 3rd CALIFORNIA HIGHWAY PATROL AAA F606 (Apr 2002) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 703 The 10851 Award 4F Wa . . gw-) 4 6 ew 6 in cooperation with the AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA proudly recognizes CfAm xW& 2UacGl w First Award for superior efforts in VEHICLE THEFT RECOVERY DIVISION COMMANDER California Highway Patrol E MANAGER of Southern California Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 704 Santa Maria CITY OF SANTA MARIA POLICE DEPARTMENT Auneai Gini 222 EAST COOK STREET • SANTA MARIA, CALIFORNIA 93454-5190 • 805-928- 3781 • FAX 805- 349-9239 October 22, 2004 OFFICER KEVIN SVADDELL RE: EMPLOYEE OF THE MONTH Congratulations Kevin! You have been selected to receive the Police Department's Employee of the Month Award for September 2004. On September 18th, you initiated a traffic stop on North Lincoln. After making contact with the driver, you suspected he was under the influence of a controlled substance. The suspect was a well-known offender with a prior prison record and was recently arrested in association with a stabbing incident. After taking the suspect in for questioning and locating drug paraphernalia in the vehicle, you were able to ascertain a confession from the suspect. Also, on September 18th, you made a traffic stop wherein you noted suspicious behavior on the part of the driver. The driver then fled on foot and a foot pursuit began. You were successful in apprehending the suspect, who was later taken into custody and found to be in possession of a stolen vehicle and tinder the influence of methamphetamine. This suspect also had a previous record, including being under the influence of controlled substances and rape. This was just the beginning of your day, however, as you later were involved in yet another foot pursuit. This pursuit resulted in the arrest of a laiown gang member, who was in possession of a pink slip from a car he had crashed earlier in the week during a vehicle pursuit. In addition to the above-mentioned cases, during the month of September, you were also responsible for initiating approximately fifteen (15) arrests for subjects under the influence of controlled substances and you can always be counted on to lend your expertise ui the area of investigations involving subjects under the influence. I would like to extend my personal congratulations to you for an outstanding job. In your honor, it is my pleasure to invite you to lunch at a restaurant of your choice. Please contact Sonya Haifi at extension 272, to schedule this luncheon. You will also be recognized at the Department's Annual Awards Luncheon in 2005. Again, please accept my congratulations for this well deserved recognition. Sincerely, DANNY R. ZCA Chief of Police c: Human Resources Personnel File Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 705 PRESENTED TO OFFICER KEVIN WADDELL for September 2004 IN GRATEFUL RECOGNITION FOR YOUR DEVOTED SERVICE TO THE CITIZENS OF SANTA MARIA AND TO THE SANTA MARIA POLICE DEPARTMENT DANNY R. UACAGNI Chief of Police Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 706 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 707 1111111111 ..` 1111 CAL, -PACIFIC REPORTING, INC* Certified Transcript of Audio Recording of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 Case: In Re: Matter of Kevin Waddell IA 13-004 Reporter: Christine Boldt, CLT 18 Professional Center Parkway, 3rd Floor San Rafael, CA 94903 Phone: 415.578.2480 Fax: 415.952.9451 Email: support@calpacificreporting.com Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 708 INTERVIEW OF OFFICER KEVIN WADDELL Conducted by Lieutenant John Bledsoe) LDF Matter No. 13-3248 December 12, 2013 TRANSCRIBED ON JUNE 18, 2015 BY: CHRISTINE BOLDT, CLT CAL -PACIFIC REPORTING 18 Professional Center Parkway, 3rd Floor San Rafael, California 94903 415) 578-2480 Support@CalPacificReporting.com 000- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 709 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 LIEUTENANT BLEDSOE: Okay. This is Lieutenant John Bledsoe, and the date is December the 12th, 2013. It is about 3:33 in the afternoon. I'm here with Officer Kevin Waddell, who is the subject in this matter. I'm also here with Sergeant Kurt Hixenbaugh and Alison Berry Wilkinson, who is representative for Officer Waddell. Q. Kevin, I gave you the notice back on 11-18-13 at about 1050 hours. Do you remember that -- A. Yes. Q. -- for the inquiry? Okay. Did you have a chance to read the form that I gave you? A. Yes, I did. Q. And you know what the allegations are against you right now? A. Yes. LIEUTENANT BLEDSOE: Okay. I'm going to go ahead and start with the document that I have here and read it verbatim for you. Today is 12-12-13. The time is approximately 1533 hours. This is a personnel investigation concerning the San Luis Obispo Police Department involving the allegations of presenting false information or making false statements to a supervisor. Cal -Pacific Reporting, Inc. 415.578.2480 Page 2 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 710 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/ 12/2013) Transcribed: June 18, 2015 This is a personnel investigation, and as such you do not have the right to refuse to answer. The truth is expected, as is your entire knowledge relative to items discussed. Any failure to respond may be grounds for punitive action. No promise or reward will be made as an inducement for the answer to any question. You may record any portion of this interview or have access to the department's tape if any further proceedings are contemplated or prior to any subsequent interview. Any statement you make during a personnel investigation interview cannot be used against you if subsequent criminal proceedings are initiated unless you have first waived your rights to remain silent under Miranda guidelines. You have the right to be represented by an individual of your choice who may be present at all times during your interview, providing the person chosen is not a subject of the inquiry. Your representative may assist you as appropriate. However, she may not interfere or obstruct the orderly process of the interview. You have the right to take a break at any time during this interview. So just let me know if you need to step or anything. Q. Do you understand all the things I've read to Cal -Pacific Reporting, Inc. 415. 578.2480 Page 3 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 711 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Kevin Waddell (12/12/2013) IA 13-004 Transcribed: June 18, 2015 you? A. Yes, I do. Q. Do you have any questions so far? A. No. LIEUTENANT BLEDSOE: Okay. Continuing: The nature of this investigation is such that one or more officers may be in jeopardy of facing criminal charges. And like I said before, that doesn't appear to be the case at this point in time, but the investigation is still ongoing. Because you acted in your official capacity as a police officer of the San Luis Obispo Police Department in this incident, you may be subject to some form of legal action in the future. To protect your rights under self-incrimination, I'm going to advise you of Constitutional rights. You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to talk to a lawyer and to have him or P her present with you while you're being questioned. If you cannot afford to hire a lawyer, one will be i appointed to represent you before any questioning if you wish. { Q. Do you understand these rights? Cal -Pacific Reporting, Inc. 415.578.2480 Page 4 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 712 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 A. Yes. Q. I'm going to check the "yes" box. Do you wish to speak with me? A. No. Q. Okay. I'm going to check the "no" box, that you're invoking. If you decide not to give a statement at this time, you are now ordered as an employee of this Department to answer all questions asked by investigators and to give a full, detailed and complete statement regarding your knowledge of or involvement in the matter now under investigation. Although you have the right to silence in criminal investigations, this is not a criminal investigation but an administrative hearing, and you are now being ordered to answer all questions under the compulsion of the threat of disciplinary action. And having been so ordered, any statements that you make cannot be used against you in any criminal proceedings. If you fail to comply with this order, you may be dismissed from your employment with this agency on the grounds of willful disobedience and insubordination. I apologize. MS. WILKINSON: That's all right. We've all been there. Cal -Pacific Reporting, Inc. 415.578.2480 Page 5 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 713 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 LIEUTENANT BLEDSOE: Assuming -- THE WITNESS: Last week it's me. LIEUTENANT BLEDSOE: Assuming that you now comply with this order and cooperate fully in this investigation, your statements and any evidence obtained through such statements will be used as to you solely to determine whether Department disciplinary action is necessary. False statements of course will result in severe disciplinary action. Q. Do you have any questions concerning your rights? A. No, I don't. Q. I've read the above admonishment order, and what I'm reading to you now is your acknowledgement. If you fully understand your rights and duties, I need you to sign your signature and then print your name and date it, please. I should have had you read it. I didn't know it was going to be that bad. MS. WILKINSON: We could have just incorporated the form into it. SERGEANT HIXENBAUGH: "Here, you read this." LIEUTENANT BLEDSOE: Okay. And I'm going to do the same. I'm going to sign as a witness and print it. Time's about 3:40. Cal -Pacific Reporting, Inc. 415. 578.2480 Page 6 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 714 1 2 3 4 5 6 7 8 9 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 MS. WILKINSON: It's that nasty winter cold. LIEUTENANT BLEDSOE: Okay. So I'm just going to go ahead and begin with the questioning. Q. Kevin, on October 19th, 2013, did you sign up or were you assigned to work a CAT overtime assignment? A. Yes, I was. Q. Did you sign up or were you assigned? A. I believe that was when I signed up for prior to that. Q. It was an overtime shift? A. Correct. Q. Do you remember the hours that you were assigned to work? A. Those shifts are from 11:00 to 4:00. Q. Did you arrive to work on time that day? A. No, I didn't. Q. And can you tell me why? A. That morning my daughters had a ballet class, and my wife last minute had to go somewhere else and wasn't able to take them, but she was able to pick them up. So I was going to drop them off on the way coming up here. Q. Okay. Did you notify anyone that you'd be arriving late that day? A. I told my partner who was going to be working Cal -Pacific Reporting, Inc. 415.578.2480 Page 7 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 715 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Kevin Waddell (12/ 12/2013) IA 13-004 Transcribed: June 18, 2015 with me that day, Adam Stonkey. } Q. And how did you notify him? A. I sent him a text message telling himgg thatat I was going to be in late. Q. Is that the only person you notified that you were going to be coming in late? A. Yes. Q. Okay. Later that day or soon after 11:00 o'clock, did you receive a text message from Sergeant Pfarr sometime after 11:00 a.m. that day? A. Yes. Q. And what did the text message say. A. He asked me if I was coming in. Q. And what did you tell him in your text message response? A. Yeah, I don't remember exactly what exact words I would have used, but I know it was something to the effect that I was on my way in and that -- I think I referred to him as Smith -- Smith has approved it. Q. Okay. I have a copy of the text messages that Sergeant Pfarr provided me, and they're split up a little bit. Does this look accurate as to what Sergeant Pfarr had asked you? It says, "Are you coming in today?" And then it says, "Never mind, wrong Kevin." A. Yes. This is the conversation between Chad and 3 Cal -Pacific Reporting, Inc. 415.578.2480 Page 8 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 716 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 I. Audio of: Officer Kevin Waddell (12/ 12/2013) Transcribed: June 18, 2015 Q. And so your -- when he asked -- after he said, No, correct," when he realized it was the correct Kevin Waddell that he was texting, you responded by saying, Yes. Sorry. I had worked out ahead of one with Lieutenant Smith. I'm on the way in." Is that accurate? A. That's what I texted, yes. Q. There's some typos in there. A. There wasn't a typo. I was driving at the time when I had sent that message, so I wasn't able to accurately say what I fully meant. My intention with that message was to say that I had worked out previous shift adjustments with Lieutenant Smith and that that's what my intention was with coming in late today, was that I was going to just adjust the hours and still work the full complement of hours. Q. But were you telling him in this message that you had prearranged coming in late with Lieutenant Smith? MS. WILKINSON: Why don't you read the whole thing so you have the context of the conversation. LIEUTENANT BLEDSOE: Okay. And we'll move on. The next message by -- MS. WILKINSON: I think that it's hard because Cal -Pacific Reporting, Inc. 415.578.2480 Page 9 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 717 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 you're asking about one, and there is -- LIEUTENANT BLEDSOE: Sure. MS. WILKINSON: -- multiple ones back and LIEUTENANT BLEDSOE: And we'll move on with the rest of them. Q. It says -- from Sergeant Pfarr, it says, "That made no sense. Stop by when you get here. A. Correct. Q. And then you again texted him or texted him back, saying that you basically had talked to Smith yesterday about coming in at 1100 hours. "He said fine, no problem, but I will stop by" -- or you said. And that's what you texted Sergeant Pfarr? A. Yes. That's what I texted him, but again, that message is not what my intention was. My intention in that message was that I had actually talked to him yesterday, not that I had seeked approval for coming in late on this day, in that message as well. My intention -- there should be -- it's all one sentence, but there really should be a separation there. I said basically I talked to him yesterday, and then I'm coming in at 11:30. My intention -- again, I was driving and I wasn't really focused on explaining myself properly. I didn't -- I don't think I explained myself properly in Cal -Pacific Reporting, Inc. 415.578.2480 Page 10 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 718 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Kevin Waddell (12/ 12/2013) IA 13-004 Transcribed: June 18, 2015 what I was trying to convey in that message. Q. So are you telling me that in this text message you're not saying that you received permission from Lieutenant Smith about coming in late for that shift? A. That's my intention with that message, as is the message before that. I was that -- not that -- I didn't seek permission from this -- for this particular day. I know that I didn't have permission for this day to come in late. My explanation that I was trying to convey in the text message was that I had permission in the past and so that this message was me trying to convey that I had permission before, so I thought it would be okay if I just came in this little bit late for the shift I'd notified my partner. And I know that I over- -- you know, looking back now, the message is black -and -white. It's easy for me now to see that that was not my place to do that. But I know that that was my intention at the time. My thought process at the time was to try and convey that I had approval before. I didn't think today was going to be a big deal. Q. Okay. After you arrived at work after these text messages, did you speak with Sergeant Pfarr in his office? A. Yes, I did. Cal -Pacific Reporting, Inc. 415. 578.2480 Page 11 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 719 1 2 3 4 5 6 7 8 9 10 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/ 12/2013) Transcribed: June 18, 2015 Q. What did you tell him? A. Again, I don't remember exactly what words I would have used, or phrasing, but I know the overview of the conversation and what the conversation was, was that he asked me if I had got approval from Smith. And I said -- again, I said that I had approval before. I think that what I probably tried -- what I conveyed to him was provide that I had got permission for this incident, but I don't remember exactly what the conversation was in detail of what I would have said to him or how I worded things. Q. Did you tell Sergeant Pfarr that you spoke with Lieutenant Smith in the locker room the day before? A. Yeah. Q. On the 18th? A. Yeah. I told him that I talked to Lieutenant -- I saw Lieutenant Smith in the locker room, but -- Q. Did you tell Sergeant Pfarr that Lieutenant Smith gave you permission to come in late so that you could attend your daughters' dance recital? A. I don't -- I could see -- I don't think I expressed it that way. I felt like what my expression was trying to be was that I saw him yesterday. I was trying to say that I thought it would be okay based on Cal -Pacific Reporting, Inc. 415.578.2480 Page 12 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 720 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 other situations. And I don't think I explained myself well enough to him in that situation. Q. I mean, it appears that from what I -- the others have explained to me, Lieutenant Smith and Sergeant Pfarr, that you gave Sergeant Pfarr reason to be that you spoke with Lieutenant Smith and that Lieutenant Smith -- you had a conversation with him about coming in late for work because you were going to go to your daughters' dance recital. And now you're telling -- I'm not quite sure what you're telling me. You either did or you didn't. And so I want to ask that question one more time just to clarify. When you were in Sergeant Pfarr's office that morning of the 19th, did you tell him that Lieutenant Smith gave you permission to come in late so you could attend your daughters' dance recital? And I mean come in late for the 19th, not any previous times. MS. WILKINSON: You're asking if he used those specific words? LIEUTENANT BLEDSOE: I'm asking if that is an accurate -- maybe not those specific words, but if he gave -- told Sergeant Pfarr that he had permission by Lieutenant Smith to come in late for the 19th -- Q. -- so that you could attend your daughters' dance recital? Cal -Pacific Reporting, Inc. 415.578.2480 Page 13 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 721 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 A. I didn't say to him that he gave me permission for that day. I said that Smith's okay with me coming in late. I believe that's how I said it: "Smith's okay with me coming in late." That was my recollection of how I said it. And I said, "I talked to him. I saw him in the locker room yesterday, and he's okay with me coming in late." I believe that's how I worded it. I can easily see how that would be my implication that he gave me specific permission for that day. Q. Well, did you mention to Sergeant Pfarr anything about your daughters' dance recital? A. I believe I told him that that's where I was, but there would have not been the opportunity the day before for me to ask him about that because the situation arose that morning. That's why I texted Stonkey about it. I -- like I said, when I conveyed that to Sergeant Pfarr, it was that I felt like -- I felt a little nervous talking to him about it, so I may have not been as clear as I should have been. I feel like I could have explained the situation better, but I felt like he was upset with me that he wasn't told, and I see that now, looking back, that I could have easily 1 just called him about it because he was working that day. And I get that, and I see that. And I think that i when I was there, how I conveyed it to him was just that Cal -Pacific Reporting, Inc. 415. 578.2480 Page 14 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 722 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 I talked -- I saw Smith yesterday and that he's okay with me coming in late. That simple, poorly explained explanation to him at the time, I could see how he -- I'm not saying he's lying; I'm saying that -- Q. So has Lieutenant Smith given you permission in the -- on past dates to come in late? A. Yes. Q. How many other times? A. There's been -- I can think of two times particular where I've sought permission to either get off -- generally get off early. So rather than leave at 4:00, it would be get off at 3:30, is generally what it would be. Q. So when he told you you could come in late on those other occasions, did you think that that was a blanket statement that it's okay that you come in late all the time, then? A. That's kind of the way I construed this situation. I think that's my mistake in overstepping my bounds of taking that upon myself and making a poor decision on that that would be okay, that a small amount of time coming in late, I could just adjust it to another time because it's been okay not just for myself but for other people that I've talked to for CAT shifts where it's been really flexed around when they come in Cal -Pacific Reporting, Inc, 415.578.2480 Page 15 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 723 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 and when they get off. So I kind of -- again, like I said, that's my fault for overstepping that and inferring that that would be something that would be okay without asking him that it would be okay. I see that now, looking back. Q. So was Sergeant Pfarr -- did he -- I mean, was he wrong, or was he not being honest when he told me that you came in and specifically told him that Lieutenant Smith told you you could come in late so that you could attend your daughters' dance recital? A. I'm not saying that he's making that up. That could very well be what he thought he heard. I don't remember exactly what I said. I do not remember the exact words that I said, but I don't believe that that would have been something that I would have said in that kind of a situation. I think that's something that I would have said in a situation like that, would have been just that, was something that was vague, that I said that I'm going to -- he's okay with me coming in late. If I put those two things together that I saw him yesterday and I'm coming in -- he's okay with me coming in late, that to him, obviously, meant that he said it was okay yesterday because I saw him yesterday. But I don't believe that I said it specifically like that. Q. Was Lieutenant Smith at work that day? Cal -Pacific Reporting, Inc. 415.578.2480 Page 16 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 724 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 MS. WILKINSON: The day? BY LIEUTENANT BLEDSOE: Q. The day that you showed up late and spoke with Sergeant Pfarr on the 19th, was Lieutenant Smith working then? A. The 19th? No. He -- that was a Saturday. Q. So unless he told Sergeant Pfarr that he'd given you permission, Sergeant Pfarr wouldn't have known unless you told him that you had permission to come in correct? A. Correct. And that's what I'm saying, is that in our conversation that's what I had said, that I had saw Lieutenant Smith the morning -- that morning before, the 18th, in the locker room, and he's okay with me coming in. That's what I recall saying specifically. I don't think -- again, that's something that I would have said in a situation like that. I don't remember exactly specifically what I said. I'm not trying to sidestep my responsibility that I misinterpreted the situation and overstepped my own approval for coming in late. I should have called Sergeant Pfarr or called whoever the sergeant was, or responsible for the watch for that day. I mean, I recognize that now. I recognize it, and I made that correction in other -- since then. Cal -Pacific Reporting, Inc. 415.578.2480 Page 17 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 725 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/ 12/2013) Transcribed: June 18, 2015 1 So I -- my intention was not to mislead him. I 2 feel like I poorly communicated what I meant in that 3 situation. I should have explained to him the greater 4 situation of in the past he's been okay with me coming 5 in late. In the past he's been okay with me leaving 6 early. And likewise with other people, he's been very 7 flexible with us on that overtime schedule specifically. 8 And I thought it wouldn't be a bid deal in this 9 situation. 10 Q. How many times has he given you permission in 11 the past to come in -- to show up to work late -- 12 Lieutenant Smith? 13 A. Like I said, at least two I can remember for 14 sure, and they were involving me leaving early. And I 15 know there's been other times where I've worked and the 16 people that I've worked with have either come in late or 1 17 gotten off early as well, or that person has either 18 talked to Lieutenant Smith and has arranged for us both 19 to adjust. 20 And what -- I didn't talk to Lieutenant Smith 21 about it, but that person said that we're going to work x 22 10:00 or 10:30 to 3:00 or 3:30 as a result of the K x 23 adjustment of the schedule, even though that afterward 24 I've talked -- there's been e-mails that the schedule is. 25 specific to 11:00 to 4:00, but in those instances, it t Page 18 Cal -Pacific Reporting, Inc. 415.578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 726 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 got moved. So that was the understanding that I was operating with, was that it wouldn't be that big of a deal if I just came in 20 minutes late, probably, that I was going to be, and just stay till 4:20 rather than you know. Again, my intention at the time was not, you know, to mislead. I was -- it was just a poor communication on my part. Q. Okay. We'll move on. Did your daughter actually have a dance recital that morning? A. It's not really a recital. It's just dance class. It's an hour on Saturdays. Both my daughters go. They're in different classes. Q. Did they have dance class that day, then? A. Yeah. Every Saturday they do. Q. Where's that at? A. It's in Grover. Central Coast Dance Academy, I think is what it's called. It's over kind of off of Fourth Street, the pike over there, kind of somewhere. Q. A do you know the hours that they go? A. It's from 10:00 to 11:00. Q. So did you take your daughters there by yourself? A. Yes. And my wife had another engagement to get Cal -Pacific Reporting, Inc. 415.578.2480 Page 19 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 727 1 2 3 4 5 6 7 8 9 10 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 to, but she was going to be able to pick them up. And so she didn't arrive there till right close till 11:00, so I wasn't going to leave them there by themselves. They're 5 and 7, and my one daughter is special needs. So I wasn't going to leave them there by themselves. Q. No, I get that. I get that. A. I didn't want to leave and then them be looking for me and my wife hadn't arrived yet. So that was -- there was a scheduling issue at home, and so I didn't want to leave them there. I could get them there, but she needed to pick them up, and I didn't want to leave without her getting there. Q. Okay. So I went from 10:00 to 11: 00, then? A. That's their dance class, is 10:00 to 11:00. Q. Later that day did you have a chance to talk with Sergeant Pfarr regarding you coming in late? A. No. He called me back. After that initial conversation when I first got there, is that what you mean? Q. Yeah. Did you have a conversation with him f after the initial one in his office? 1 MS. WILKINSON: So there's the text conversation. There's the one when he arrived. And now are you asking if there's another one after that? LIEUTENANT BLEDSOE: Correct. Cal -Pacific Reporting, Inc. 415. 578.2480 Page 20 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 Q. Did you have another conversation with Sergeant Pfarr after? A. He talked to me. I didn't talk. Q. What did that -- what did he say? A. He called me back in and said that he had talked to Lieutenant Smith and that he didn't give me permission. Well, he started off with, "I don't want you to say anything. I don't want you to talk. I'm pissed off, he's pissed off, and you lied to me." And I said okay. And his next thing, he said that he talked to Lieutenant Smith; Lieutenant Smith didn't give me permission to come in. And I said okay. I think I might have said something of "I'll talk to Lieutenant Smith, and we can clear it up." And I said, Oh, you didn't want me to say anything. I'm sorry." And then that was it. I walked out. Q. Okay. Did you have a conversation with Lieutenant Smith? A. Yes, I did, the Monday after it happened. Q. Okay. Let's go back to the 18th, though, when you were in the locker room with Lieutenant Smith and he was in there. Did you have a conversation with him that day? A. No. Q. Did you see him in the locker room at all? Cal -Pacific Reporting, Inc. 415.578.2480 Page 21 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Kevin Waddell (12/ 12/2013) IA 13-004 Transcribed: June 18, 2015 A. Yes. Q. Did you tell Sergeant Pfarr that you had a conversation in the locker room with Lieutenant Smith, though? A. I think I might have said that I talked to him. We exchanged pleasantries. I mean, we didn't have a conversation per se. A conversation -- we didn't talk at length about anything. We might have said hi and Hey, how's it going?" But it wasn't -- Q. When you were in the locker room on the 18th, did you ask Lieutenant Smith for permission to come in late for work on the 19th? A. No, I didn't. Q. You had no conversation with him at all? A. No, I didn't. MS. WILKINSON: About that? BY LIEUTENANT BLEDSOE: Q. About coming in late on the 19th? A. Correct. No, not coming in late, no. MS. WILKINSON: He' s already indicated they may have exchanged pleasantries. LIEUTENANT BLEDSOE: Correct. Q. And that's it; that was the gist of your conversation? A. Yeah. s Cal -Pacific Reporting, Inc. 415. 578.2480 Page 22 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 730 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/ 12/2013) Transcribed: June 18, 2015 Q. Okay. Did you talk with Lieutenant Smith about your daughters' recital any time? A. On the 18th? Q. On any -- at any time. MS. WILKINSON: Before or after? LIEUTENANT BLEDSOE: Correct. ' Q. Well, before. Before. j A. Not before, no. Q. And certainly not in the locker room that day? j A. No. 1 Q. I guess it would have been on Monday, the 21st, I possibly. Did you go into Lieutenant Smith's office to speak with him? A. Yes. Q. Did you close the door when you walked in? A. I may have asked him if he wanted me to. Q. Okay. T MS. WILKINSON: Do you remember whether he did or not? THE WITNESS: I may have closed -- we may have had a closed door. I think it was closed. BY LIEUTENANT BLEDSOE: Q. Okay. Did you -- what did you talk to him about? A. He obviously knew why I was there because he Cal -Pacific Reporting, Inc. 415.578.2480 Page 23 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 731 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Kevin Waddell (12/ 12/2013) IA 13-004 Transcribed: June 18, 2015 said, "I know why you're here." I said, "Okay. I just want to talk to you about what happened so we can clear the air. I want to get in front of what happened. I recognize the mistakes that I made in that situation, and I want to -- you're a part of that. And I want to let you know what my intentions were." Q. When you say "mistakes," what kind of mistakes did you make? A. I felt like I misinterpreted and overstepped -- misinterpreted being -- misinterpreted the permissions that he's given in the past by then overstepping my i position of approval for coming in late on something like that. Q. Did you tell Lieutenant Smith that you wanted f to get something off your chest? ! A. That's -- I -- if I said something like that and he recalls that, that's not some verbiage that I i would want to use. Like I said, the stuff I said to him was reflective of I want to get in front of something and I want you to know where I was coming from. That's the kind of verbiage that I would use. I'm not someone -- that's not something that I would say. MS. WILKINSON: That phrase "get something off my chest" is not your normal type of phrase? Cal -Pacific Reporting, Inc. 415. 578.2480 Page 24 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 732 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 THE WITNESS: That's not a normal phrase that I would use. I don't recall saying that. BY LIEUTENANT BLEDSOE: Q. You don't recall saying that, okay. What did you tell Lieutenant Smith when you were in there, that you remember? A. I remember telling him about where I was that morning and the reason behind me needing to be there late. Q. "That morning," meaning the 19th? A. Meaning the 19th. And he -- and I told him that -- just what I've told you here today, that I overstepped his -- interpretation of his permission in the past, and "I knew that you didn't give me permission for this day," and that I misinterpreted the times from before in doing that, and I should have notified Sergeant Pfarr, whoever the watch commander was for that day, for Saturday, that I needed to be in late. It really wouldn't have been a big deal had I done that, that I shouldn't have taken it upon myself to just make the unilateral decision. Q. Did you make any other comments to Lieutenant Smith such as you were willing to accept the consequences that are to follow? A. I believe I did say that. I believe I'd take Cal -Pacific Reporting, Inc. 415.578.2480 Page 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 733 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 responsibility for what I've done, and I believe that he had mentioned something to me to the effect of that he was not going to be responsible for what was going to happen out of it. And I told him, I said, "I'm not looking to stop whatever it is you guys are going to do with it. My intention with coming here today was to own my responsibility of this situation that I made mistakes and I messed up and I should have called and told i whoever the watch commander was for that day. I should have not taken it upon myself to make the decision that I could have come in late. I felt like I wasn't going to impact anybody, j and overtime -wise, there was no one to cover for that portion of the shift. And so I felt like I could just stay an extra 20 minutes or whatever it would be to allow for the -- similar to other situations. Again, I didn't have permission for it in this instance, but I know that it was okay in the past, so I figured I could just do it. Q. Okay. Kevin, did you knowingly or willfully ? make false statements to Sergeant Pfarr regarding getting permission to come in late for your shift on the 19th? A. That was not my intention at all. If the words and the way I chose to say things, that's what Sergeant Cal -Pacific Reporting, Inc. 415.578.2480 Page 26 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 734 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 1B, 2015 Pfarr took from it, that's my mistake for not explaining myself better, not being more clear. My intention was not to explain to him that I had sought permission and got permission. I've told you here that I didn't get permission on the 18th from Lieutenant Smith. It was a i situation that arose on the 19th for which me needing to come in late. So I -- my intention was never to mislead Sergeant Pfarr in a text message or in person. I felt like I could have better explained myself. I could have better thoroughly explained to him the situations from 1 i the past like I am now. But at the times, like when I'm driving or when I'm MS. WILKINSON: His question was, did you knowingly intend to mislead him. I take it from your answer that's a "no"? THE WITNESS: No, I didn't. MS. WILKINSON: Can you read the question again. Maybe he can focus on the question. LIEUTENANT BLEDSOE: Sure. Q. My question is: Did you knowingly or willfully make any false statements to Sergeant Pfarr regarding getting permission by Lieutenant Smith to come in late for work on October 19th? A. No. Q. Okay. And I get the fact that you said that Cal -Pacific Reporting, Inc. 415.578.2480 Page 27 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 735 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 you didn't get permission from Lieutenant Smith. I think based on your statements and Lieutenant Smith's and Sergeant Pfarr's, it's clear you did not get permission. But what I have a probably is with your text messaging saying that you talked to Lieutenant Smith yesterday about coming in at 11:30 and he said, Fine, no problem." This isn't a blanket statement from weeks past of other shifts. This is specific, yesterday. It would have been the 18th because this is dated the 19th when you did these text messages. So I'm just not understanding how this is a miscommunication. It seems to me very clear that in reading this and later in going in and telling Sergeant Pfarr that you spoke to Lieutenant Smith in the locker room and asked if you could come in late because you were going to your daughters' dance. And you're saying that didn't happen? A. I'm saying that that was not my intention with -- I mean, there's a couple things you said there. But I mean, specifically with the message, is that -- I mean, I was driving, so I'm not accurately explaining myself. In this message, like I said, there's -- I could have put more periods in there to separate "I talked to Smith yesterday." Well, I mean, say I talked Cal -Pacific Reporting, Inc. 415. 578.2480 Page 28 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 736 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/ 12/2013) Transcribed: June 18, 2015 to him is something vague to say, you know. 1 But I mean, I said a second ago when I was j didn't say to him -- I don't recall saying specifically 4 4 to Sergeant Pfarr in his office that Smith gave me I i permission yesterday. I think that -- and my recollection, what my intention was with the conversation was that I -- was just like what I said I earlier. It was about that he has given permission in a the past and that I felt like that it would be fine for this one. a Q. In the past wasn't yesterday, though, according 3 to what you're telling me. It was other assignments, not yesterday. This is specific to yesterday. And so that's kind of where I'm running into a problem on your thought process, and you're trying to explain it to me. G A. I am trying to explain it to you because I want you to understand where I was coming from. That's why I'm trying to explain it. Q. In the -- when you came into Sergeant Pfarr's 6 office the first time, not the second time where he told ji you not to talk to him the first time, did you also in that conversation say that you talked to Smith in the s locker room or saw Smith in the locker room? A. I missed it. So the second conversation? i Q. No. Like -- okay. So you get to the work. Cal -Pacific Reporting, Inc. 415. 578.2480 Page 29 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 737 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/ 12/2013) Transcribed: June 18, 2015 This is after the text conversation. And you go and meet him in his office the first time. A. Yes. E Q. And you had a conversation with him. Did you i tell him at that point in that conversation that "Yeah, I saw Smith in the locker room yesterday"? MS. WILKINSON: I think we went over that already, and he said that he had. LIEUTENANT BLEDSOE: I'm just trying for my own recollection. Q. And you said yes, you did? A. I may have -- in the verbal conversation the first time, I may have said something that I saw him. I may have reiterated that I saw him in the locker room. Q. Okay. I'm just wondering why would you say that if not to imply that "When I saw him in the locker room, he gave me permission"? MS. WILKINSON: That's kind of a hard question to ask because you're asking him to speculate about something that he's already identified that he doesn't have a real clear recollection of the words that he used. He has a recollection of the intent he was trying to convey, and he's accepted that he juxtaposed things in a way that may have led Sergeant Pfarr to have a different understanding than he intended to communicate. Cal -Pacific Reporting, Inc. 415. 578.2480 Page 30 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 738 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 But to ask him why he would have said that, that wasn't what he intended to imply, given how he's already explained it. I think it's asking him to speculate about something that's not -- LIEUTENANT BLEDSOE: I don't think his comments are speculation. I'm asking what he said. MS. WILKINSON: There's a difference between saying why would you say that if you didn't. LIEUTENANT BLEDSOE: Okay. MS. WILKINSON: So I mean, obvious, I think he's explained. Are you asking him in the essence, "Why did you even mention, when you met with Sergeant Pfarr, seeing Lieutenant Smith"? LIEUTENANT BLEDSOE: Mm-hmm, if not to imply that that's the time that he was given the permission. MS. WILKINSON: So do you remember -- what was the reason in your conversation with Sergeant Pfarr that you even brought up seeing Lieutenant Smith in the locker room the day before? I think that's what he wants to know. LIEUTENANT BLEDSOE: Yeah. THE WITNESS: I think it was just at the time, that was the last time that I had saw him. BY LIEUTENANT BLEDSOE: Q. Did you tell him -- going back to that thought. Cal -Pacific Reporting, Inc. 415.578.2480 Page 31 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 739 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/12/2013) Transcribed: June 18, 2015 Did you tell Sergeant Pfarr that, "Well, he's given me permission in the past, so I assume that I would be okay to come in today"? Because that's what you're telling me today. A. Yes. And I don't believe that I -- that's e where I feel like I fell short, and I felt like being in his office, and it felt kind of confrontational with him, I felt short, and I felt like what I was saying was not making him happy, basically. So I felt like trying to -- I felt like I under -explained myself, is what I'm saying. I felt like I very well could have done that. I felt like -- and that's what I see now, looking back at it, that I could have handled it better and I could have explained it better, and we probably wouldn't even be here; that I could have better articulated what I was a F operating within. Q. Why do you think it was confrontational? A. I felt like he was very inquisitive of me, j specifically of the -- of things. I felt like he was very harsh and abrupt with his line of questioning with 3 me. Like, "Come see me when you get here." Why do I need -- I don't understand why. That's the stuff I was a little already take back. a Q. Okay. Kevin, have you been truthful in answering all my questions here today? Cal -Pacific Reporting, Inc. 415.578.2480 Page 32 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 740 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (12/ 12/2013) Transcribed: June 18, 2015 A. I've tried to be very truthful with you. Q. You've tried, but have you? A. Yes, I've been truthful. I want to be cooperative and helpful and honest with all the things in my recollection of what happened. LIEUTENANT BLEDSOE: I don't have any other questions. Do you, Sergeant Hixenbaugh? Do you have any questions? MS. WILKINSON: I don't have any follow-up. LIEUTENANT BLEDSOE: This interview's -- I'm going to call it over. If you have any questions or you want to make a final statement to me, now is the time. MS. WILKINSON: Do you have anvthincr further you want to say? THE WITNESS: Just again to reiterate what I've been saying this afternoon is that I felt like I misinterpreted being given permission in the past. My intention was never to mislead Sergeant Pfarr or lie to him or provide false information to him. I felt like I under -explained myself. I felt like I -- trying to talk to someone in a text message while you're driving is not going to properly explain that. I thought it was going to be okay to adjust the shift. I should have called the on -duty watch commander, sergeant, whoever it was Cal -Pacific Reporting, Inc. 415. 578.2480 Page 33 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 741 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Kevin Waddell (12/ 12/2013) IA 13-004 Transcribed: June 18, 2015 going to be for that day, and sought permission to come in rather than me unilaterally making that decision that it was going to be okay and not a big deal to just shift -adjust it a little bit and come in later like I've done before. So that's my mistake. LIEUTENANT BLEDSOE: Okay. I'm going to end the interview and I'm going to stop recording. I'm going to ask that we not discuss this after we've stopped the recording. And I'm going to also ask or order you not to talk to anybody about this other than your counsel or representative. Okay? End of recording) 000- f i Cal -Pacific Reporting, Inc. 415.578.2480 Page 34 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 742 In Re: Matter of Kevin Waddell Audio of: Officer Kevin Waddell (12/12/2013) IA 13-004 Transcribed: June 18, 2015 1 CERTIFICATE OF TRANSCRIBER 2 3 I hereby certify that the foregoing recorded 4 proceedings in the within -entitled cause were 5 transcribed by me, CHRISTINE BOLDT, CLT, a disinterested 6 person, and were thereafter transcribed into 7 typewriting. 8 9 10 Dated: June 18, 2015 11 12 13 14 15 16 Christi" oldt, CLT 17 18 19 20 21 22 23 24 25 Page 35 Cal -Pacific Reporting, Inc. 415. 578.2480 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 743 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 744 CAL -PACIFIC REPORTING, INC. Certified Transcript of Audio Recording of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 Case: In Re: Matter of Kevin Waddell IA 13-004 Reporter; Christine Boldt, CLT 18 Professional Center Parkway, 3rd Floor San Rafael, CA 94903 Phone: 415.578.2480 Fax: 415.952.9451 Email: support@calpacificreporting.com Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 745 INTERVIEW OF OFFICER KEVIN WADDELL Conducted by Lieutenant Bill Proll) LDF Matter No. 13-3248 January 27, 2014 TRANSCRIBED ON JUNE 18, 2015 BY: CHRISTINE BOLDT, CLT CAL -PACIFIC REPORTING 18 Professional Center Parkway, 3rd Floor San Rafael, California 94903 415) 578-2480 Support@CalPacificReporting.com 000- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 746 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 LIEUTENANT PROLL: This is Lieutenant Proll of San Luis Police Department. We are in the city council chamber hearing room or interview room at City Hall. With me is Sergeant Fred Michael and Officer Kevin Waddell and Alison Berry Wilkinson. The date is This is a personnel investigation concerning the San Luis Obispo Police Department involving Officer Waddell's involvement with a traffic accident involving a Bentley where items from the Bentley were alleged to have been removed from the car. This is a personnel investigation and as such you do not have the right to refuse to answer. The truth is expected, as is your entire knowledge relative to items discussed. Any failure to respond may be ground for punitive action. No promise or reward will be made as an inducement for the answers to any question. You may record any portion of this interview or have access to the department's tape if any further proceedings are contemplated or prior to any subsequent interview. Any statement you make during a personnel investigation interview cannot be used against you if subsequent criminal proceedings are initiated unless you have first waived your rights to remain silent under Cal -Pacific Reporting, Inc. 415. 578.2480 Page 2 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 747 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Miranda guidelines. Audio of: Officer Kevin Waddell (01/ 27/2014) Transcribed: June 18, 2015 You have the right to be represented by an individual of your choice who may be present at all R times during your interview, provided the person chosen is not a subject of this inquiry. Your representative R may assist you as appropriate. However, he or she may not interfere with or obstruct the orderly process of t 4 the interview. You have the right to take a break at any time during this interview. Q. Do you understand? A. Yes, I do. Q. Do you have any questions so far? A. No, I don't. MS. WILKINSON: Just before we begin, we had a f brief discussion before we went on the record. The notice that was provided to Officer Waddell in advance was relatively generic in nature, and you clarified that it concerned two items that were alledgedly removed from the Bentley, some hub caps and an emblem. I Some of the matters -- in fact it's our contention that all of the matters that are being investigated here were already discussed, investigated by Sergeant Pfarr, and Officer Waddell was counseled r with regard to it, and so as a consequence, it is our position that the department does not have the right to Cal -Pacific Reporting, Inc, 415. 578.2480 Page 3 N Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 748 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 proceed with the investigation and that doing so is in violation of the Public Safety Officers Procedural Bill of Rights Act. Based on our discussion, it's my understanding the Department has already evaluated that issue internally and given the direction to proceed nonetheless. I just want to make it known for the record that we -- by our appearance here we don't waive any objection, that our contention remains the same, that it's not proper subject and that he is here only because is ordered to be here to answer the questions, not because we agree that it's appropriate for the Department to do this. LIEUTENANT PROLL: Okay. That concern has been noted. I'm actually continuing with the waiver. The nature of this investigation is such that one or more officers may be in jeopardy of facing criminal charges. Because you acted in your official capacity as a police officer of the San Luis Obispo Police Department in the incident, you may be subject to some form of legal action in the future. To protect your rights against self-incrimination, I must advise you of Constitutional rights. Cal -Pacific Reporting, Inc. 415. 578.2480 Page 4 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 749 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you're being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one. Q. Do you understand these right? A. Yes, I do. Q. Do you wish to speak to me? A. No, I don't. LIEUTENANT PROLL: If you decide not to give a statement at this time, you are now ordered as an employee of this Department to answer all questions asked by investigators and to give a full, detailed and complete statement regarding your knowledge of or involvement in the matter now under investigation. Although you have a right to silence in criminal investigations, this is not a criminal investigation but an administrative hearing, and you are now being ordered to answer all questions under the compulsion of the threat of disciplinary action. And having been so ordered, any statements that you make cannot be used against you in a criminal proceedings. If you fail to comply with this order, you may Cal -Pacific Reporting, Inc. 415.578.2480 Page 5 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 750 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 be dismissed from your employment with the agency on the grounds of willful disobedience and insubordination. Assuming that you now comply with this and i cooperate fully in this investigation, your statement and any evidence obtained through such statements will be used as to you solely to determine whether Department disciplinary action is necessary. False statements of course will result in severe disciplinary action. E If you have any questions concerning your rights, you may ask them now. So this statement, "As I have read the above admonishment order and I fully understand my rights and duty in this investigation." MS. WILKINSON: The only comment we would make i with regard to his rights is the one I already identified earlier with respect to the propriety of the interview continuing forward. Apparently this battery is low and dying, so I'm using this one. LIEUTENANT PROLL: The little A's? MS. WILKINSON: Pardon me? LIEUTENANT PROLL: Are they battery -- what size battery? MS. WILKINSON: Oh, it's a rechargeable, so I'll just have to recharge it. Apparently I've been working too hard. Cal -Pacific Reporting, Inc. 415.578.2480 Page 6 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 751 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 witness? Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 LIEUTENANT PROLL: Do you want to be the MS. WILKINSON: No. You go ahead, or the sergeant can. BY LIEUTENANT PROLL: Q. So, Kevin, I have a lengthy list of questions to ask. I'm going to go down just one by one and might elaborate on stuff, some based on your answers and stuff. I'm not being informal, but instead of saying Officer Waddell" every time, I'm just going to say Kevin" if that's okay. MS. WILKINSON: We're comfortable with that. BY LIEUTENANT PROLL: Q. Kevin, did you respond to a major injury accident at Orchid and Johnson involving a Bentley on February 22nd, 2013? A. Yes, I did. Q. Do you know what SLO PD personnel were at the scene during the investigation of this collision? A. I would probably miss people, but I think I could give you my best recollection of some people that were probably there. Q. Okay. A. Officer Benson was there I think. Officer Cal -Pacific Reporting, Inc. 415.578.2480 Page 7 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 752 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 Rodriguez I think might have been there. I think Jen Hyman might have been there at one point. Sergeant Pfarr was obviously there at a point. Colleen Kevany I think might have been there. Robert Cudworth was there. I don't recall if Sergeant Goodwin had come to the collision or if -- I recall talking to her on the phone, but I don't recall if she actually made it to the scene. MS. WILKINSON: That brings me to one other point. It is been almost a year since the events, so understandably he's been prejudiced by the passage of time. LIEUTENANT PROLL: Right. MS. WILKINSON: So you are just going to get his best present recollection here. I just wanted to not that as well. BY LIEUTENANT PROLL: Q. Did you remember if Sergeant Amoroso was there with you? A. I think he came -- you're right; I believe I missed him. I believe he came at one point to the scene. I don't recall him coming with me -- Q. Okay. A. -- unless he initially came with me when we first were requested and then he took me back to get equipment. Cal -Pacific Reporting, Inc. 415.578.2480 Page 8 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 753 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 Q. Okay. A. It would have been something -- one of those two scenarios. I don't recall exactly the order in which... Q. What -- so what was your role at the scene? A. Part of the accident reconstruction team. And my role there was to operate in that capacity, to investigate at that time what was going to be determined, a potential fatal collision. And when the -- Q. So this wasn't a case that you were dispatched to on patrol? A. I was working at the time, as I recall, downtown. And I recall hearing the collision call for service. And I remember being requested to come. I don't recall if it came directly from Sergeant Pfarr or if it came through -- but someone requested. Q. Okay. So you were grouping at this accident scene with the accident reconstruction team to investigate this accident? A. Yes. As I was already working, the other people were coming from home. I recall that I was facilitating, if you will, these people arriving and some components of what we would need. Q. Do you remember who you were directly working Cal -Pacific Reporting, Inc. 415.578.2480 Page 9 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 754 1 2 3 4 5 6 7 8 9 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 with once, kind of, the accident reconstruction team took over, which officers? Because all these other officers were basically on patrol and probably weren't helping in the actual reconstruction of the accident. A. I recall Officer Cudworth and Officer Kevany being there for the reconstruction portion of it. I don't think I'm missing anyone. Like I said, Sergeant Goodwin may have come. I don't recall. I do remember speaking to her at one point. She could have come, but here capacity is limited anyway with what we did or do. I don't recall. Q. Did you ask the tow truck driver that showed up to take -- to tow the Bentley away, did you ask him for a screwdriver? A. Yes, I did. Q. When did you ask him for a screwdriver? A. It would have been after the car was already rolled over onto its wheels. We were preparing -- we were completed with the scene at that point, and he was preparing -- we were ready to release the vehicle to him. Q. Why did you ask him for a screwdriver? A. I was going to use it to take a hub cap off the car -- or the wheel cover; hubs caps per se on a Bentley. Cal -Pacific Reporting, Inc. 415.578.2480 Page 10 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 755 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 Q. And who idea was it to remove the wheel cover? A. It was mine. Q. Whose idea was it to ask the tow truck driver for a screwdriver? A. That was my idea. Q. Did the tow truck driver ask you why you wanted a screwdriver? A. I don't recall. I'm asking him. Q. So you don't recall him asking you? A. I don't recall if he did or did not. I don't remember. Q. Do you think the tow truck driver knows why you wanted to borrow the screwdriver? MS. WILKINSON: I don't think he can jump into the tow truck driver's head; I mean, what the tow truck driver thought. BY LIEUTENANT PROLL: Q. Was there any conversation between you and the tow truck driver on why you wanted the screwdriver? A. I was trying to be very vocal about what I was doing. I was being dramatic, if you will. I was emphasizing what I was doing. I -- my intention in what I was doing, the reason behind what I was doing to him, I didn't express to him, obviously. I don't know. I don't recall specifically telling him directly what I Cal -Pacific Reporting, Inc. 415.578.2480 Page 11 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 756 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 intended to do with it. Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 Q. So you don't recall a conversation between you and the tow truck driver about removing the wheel cover? A. Again, I was -- my intent at the time was to be obvious about what I was doing. I was not trying to have a private conversation with him on the side. If I talked to him, I don't recall, is where I'm going. I don't remember having it or what that -- or if that conversation took place. I don't remember. MS. WILKINSON: Do you remember whether you made known just in general, whether to him directly or not, what you were going to do with the screwdriver? THE WITNESS: I believe I did. I believe that I was being obvious with my intention with where I was going with it and what I was doing with it, not just to him but to other people that were around. BY LIEUTENANT PROLL: Q. Did you ultimately get a screwdriver from the tow truck driver? A. Yes, I did. Q. And after getting the screwdriver, what did you do with it? A. I remember -- I definitely remember taking off a wheel cap, hub cap. I remember at one point making reference to a emblem on the car. I don't recall -- Cal -Pacific Reporting, Inc. 415.578.2480 Page 12 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 757 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Kevin Waddell (01/27/2014) IA 13-004 Transcribed: June 18, 2015 just I remember talking about the emblem itself and getting one off the car, but I never took an emblem other than the hub cap. Q. And where did the hub cap come from? MS. WILKINSON: You mean, like, which wheel? LIEUTENANT PROLL: Yeah. i THE WITNESS: I thought it was the rear passenger side of the car as I remember. Again, I could be wrong. I remember it -- I think it's that one i because I know that the front -- the front passenger wheel was damaged, and that was the one that had the missing cap already. So that would be my best recollection. BY LIEUTENANT PROLL: Q. And where was the emblem that you had just discussed that you didn't take but you looked at or worked on? MS. WILKINSON: Did you work on it? I mean, that's a different question. So you talked about the emblem. THE WITNESS: I don't recall. I recall referencing the screwdriver for the cap and talking about the emblem, and you could use the screwdriver to take the emblem off, but I don't recall ever trying to take am emblem off. Cal -Pacific Reporting, Inc. 415.578.2480 Page 13 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 758 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Kevin Waddell (01/ 27/2014) IA 13-004 Transcribed: June 18, 2015 BY LIEUTENANT PROLL: Q. Where was the emblem? A. The emblem I referenced was at the front of the car on the hood, because that was where the tow truck -- that was where I just got that screwdriver from. So it was right there, and that was where most of the damage was to the car. That's where we had been and been standing the most. Q. Was this like a hood ornament? A. Yes. It's a wing in the middle of the hood right at the front hood line where the hood would meet the grille, if you will. Q. So you didn't try to take it off? ' A. I don't remember trying to -- I remember referencing it. I don't remember -- Q. Okay. Go into what you mean by "I remember referencing it." o A. As I said a second ago, I remember when I got the screwdriver, talking about the emblem and what it looks like, and it's a cool emblem. And you could use a screwdriver -- "I bet you you could get this -- I bet that thing comes off. Just get behind it and it comes off." And then the hub cap was an easier thing to take off. It was not -- I didn't think that the hub cap didn't think that the emblem would even come off with r Cal -Pacific Reporting, Inc. 415.578.2480 Page 14 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 759 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 any kind of reasonableness. Audio of: Officer Kevin Waddell (01/ 27/2014) Transcribed: June 18, 2015 Q. So just to back up a little bit. You asked the tow truck driver for a screwdriver. He gives it to you. You walk and pop what you think is the right -- or the rear passenger hub cap or whether cover off. And then what did you do? A. I remember making it obvious that I was doing it, talking a lot about it, talking loud about it. I remember getting it off. I had -- the other wheel cover that had come off the front whether was already there, so I had sat the wheel cover that I had taken off on top of the other one as if I was organizing them. Q. So the one that naturally came off during the crash? A. Correct. Q. You took the second one and put it on top of A. Correct. Q. So you took the one you pried off and put it on top of -- and that was just laying in the street? A. I think it was in the dirt on the berm that was the side of the road. Q. Was that damaged? MS. WILKINSON: The one that came off naturally in the crash? Cal -Pacific Reporting, Inc. 415. 578.2480 Page 15 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 760 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 LIEUTENANT PROLL: Yeah. MS. WILKINSON: Or the one he took off? LIEUTENANT PROLL: The one that came off naturally. THE WITNESS: I don't recall looking at it. I don't remember. BY LIEUTENANT PROLL: Q. What was the condition of the one you did take off? A. It was fine. There was nothing wrong with it. I think there was some dirt inside of it, and mud, but there was nothing mechanically wrong with it. Q. Did you place anything into a large brown evidence bag? A. Not related to any of these items. I very well could have taken evidentiary items that were legitimately evidentiary items, but I don't recall. I don't remember if that was my scope. I don't remember putting anything in a bag. Q. During the course of investigation of the traffic collision, do you remember taking any vehicle parts or anything other than the wheel cap you pried off? A. I mean, I didn't take any of these things. Q. Did you take them and intend to book them as Cal -Pacific Reporting, Inc. 415.578.2480 ME Mo Page 16 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 761 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 evidence or anything in the investigation? Basically you have a rolled -over car, and you guys are there to determine what happened. Did you collect anything to assist in the reconstruction? A. I don't recall that we -- I know that we took a lot of photographs and we did the diagram of the scene with the total station, but that is -- usually my scope 9 when I -- when we go out there is I do the diagramming. So usually the way we break up that is that someone else j will handle a portion of the report and evidence, and someone does the diagram and the computer portion of it later. So that's usually my aspect because no one else knows how to do it. So -- Q. So you don't normally collect parts? A. I mean, if I'm the only one there or if -- there's been other times when I have collected evidentiary items. However, in the instance, I don't recall if that was my role or responsibility. There were other people there, so I believe that that responsibility would have gone to someone else. Q. Okay. So to answer the question: Did you place anything into a large brown evidence bag? You 1 i don't remember? A. I could have in assistance of someone else. I i don't recall. I don't know. Cal -Pacific Reporting, Inc. 415.578.2480 Page 17 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 762 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 MS. WILKINSON: Let's ask this: Do you have any independent recollection of putting anything in any evidence bag? It's been almost a year -- THE WITNESS: I don't -- MS. WILKINSON: -- but just based on your present memory. THE WITNESS: I don't remember. BY LIEUTENANT PROLL: Q. Okay. Did either of the wheel cover that you pried off or the one that naturally came off during the accident that you put on top of each other, did either of those during the time you were at the scene ever be put into a brown paper bag? A. No. Q. And you would have known that? A. Yes. My intention was never to take these items away from the scene. Q. So in that answer -- I'm going to ask this even j R that answer -- did you ever walk to g y your car with a brown paper evidence bag, that you remember. A. No. I don't -- there was never anything -- unless that was something I was doing for someone else, i it was an actual evidence item, that's what I would have been doing. But the items that we're talking about were never -- I never placed them in a bag and I never took Y Cal -Pacific Reporting, Inc. 415. 578.2480 Page 18 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 763 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 them to the car. Q. Did the tow truck driver see you remove the wheel cover? A. I'm sure he did. I was being very obvious with what I was doing. I was not intending to hide my acts. Q. Who else knew or saw -- let me go with, who else saw you remove the wheel cover? A. I want to say Benson was there and saw that. I remember there being other people there, but I don't recall. Q. You stress that you're being obvious and overly loud and all this. You had -- I mean, at some point you would think that you would know the audience that you're -- A. My audience was Sergeant Pfarr. That's who my audience was. But I was not intending to -- I was messing -- I was messing with him. I had a -- the prank i was on him. That was my intention with this whole j thing. I accept responsibility for that, but that was poorly timed and it was -- at the time I realized that it was not a good idea. And now a year later I also see that it's a bad idea and I take responsibility for my actions and what my intention was with that. But my audience was not any of the officers. My audience was Cal -Pacific Reporting, Inc. 415. 578.2480 Page 19 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 764 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/ 27/2014) Transcribed: June 18, 2015 Sergeant Pfarr, and that's the person that I was -- as I make mention of, trying to be obvious with and about. Q. Did Sergeant Pfarr see you remove the item? A. I'm sure that he did. Q. From the car? A. I'm sure that he did. Q. So just try to answer this. I'm going to ask again, is why did you remove the Bentley wheel cover from the Bentley? A. I was playing a prank on Sergeant Pfarr. I was trying to do something to get him to respond and react to me, get him to tell me to stop doing it. I was trying to get every reaction from him with what I was doing. I had never had any intention in taking the items for anything. I had no need for them whatsoever. My sole reason for that was just that I was messing around with Sergeant Pfarr. And that's -- you know, I knew it at the time. When he chose to leave, I realized that the timing, the audience, the people around, it was a poor decision, based on his response and the people that were around it. I see that. I saw that then and I see that now. Q. What instigated this prank? A. There was a conversation that I had with Sergeant Amoroso where he and I talked about playing a Cal -Pacific Reporting, Inc. 415. 578.2480 Page 20 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 765 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 prank on Sergeant Pfarr. It was not anything in specifics. That's where my mindset was. That's where this came from. That was my intention in doing it. I take full responsibility for my action because I made the choice. Q. When was this conversation with you and Sergeant Pfarr Amoroso? A. I thought it was that same shift, but could have been the day before. And I say that because it was that week. That was the middle of our work week, and we had worked together the night before, and we had been in the truck, driving, for that shift or the shift before. That's when that conversation -- I recall. Now I recall it taking place sometime in that -- Q. So you and Sergeant Amoroso are driving, and one of you have the idea of "Let's prank Sergeant Pfarr"? A. It was a lighthearted conversation. It was not evil. It wasn't -- Q. What was the -- was there any reasoning? I mean, why didn't you prank Sergeant Michael? I mean, what was the reasoning on Sergeant Pfarr? A. I recall -- I don't recall specifics, but I think it had something to do with the close working relationship between Sergeant Amoroso and Sergeant Cal -Pacific Reporting, Inc. 415.578.2480 Page 21 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 766 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 Pfarr. Sergeant Michael or some other -- that's the reason that he was the topic. There was not any 1 specifics to targeting him or anything like that. Q. When you said "close working relationship," do you mean between the two sergeants or between you and { the -- A. Between the two sergeants. They both were working that night shift. i Q. So that was -- that would be the reason why, in your mind, that you would prank Sergeant Pfarr because of the close working relationships that Sergeant Amoroso and Sergeant Pfarr had? A. I'm not speaking for Sergeant Amoroso, but for myself, I didn't have any intentions. Q. But you're the one that did the prank. So what was in your mind of why you would do that? A. At the time it was just because it would -- he I was a newer sergeant, and I think it would be -- at the time I was thinking it would be a lighthearted thing to i joke with him. And I didn't have any ill intention J about it or toward him. It was just that I thought that at the time it would be funny. In light of my conversation with Sergeant Amoroso, I thought it would be fun. Q. Let's go back a little bit to where you made a Cal -Pacific Reporting, Inc. 415.578.2480 Page 22 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 767 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 big deal of taking this thing. How -- what do you mean by that? What specifics did you do when asking for the screwdriver or removing the item would lead someone else to be that you were talking louder than normal? What were you doing or saying that you were going above and beyond your normal work for them to notice this? A. It was really an emphasis on the emblem of the car. It's a unique emblem, and so that was what I was doing, was just referencing a lot to the emblem and how cool it is and how -- you know, it's a cool emblem; display it, whatever. It'd be neat. It was -- again, it was not anything specific. It was just random comments about the car. I mean, it's a higher -end car, not a car that everybody has. It was -- that was what was the lead-in, was about the emblem. Q. Did you reference doing this before or having other items like this that would lead credence to that this was a joke or that you're being loud and obnoxious with -- not obnoxious -- but loud and making sure they knew that you were doing this? Was there any reference to anything like that? A. I don't recall because I've never collected anything. I've never retained anything from any other crash. That's not something I've ever done nor will ever do. But I do know that I was not trying to be Cal -Pacific Reporting, Inc. 415.578.2480 Page 23 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 768 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/ 27/2014) Transcribed: June 18, 2015 secretive with what I was doing; talking loudly, talking a lot about it. Q. So if you referenced "taking this for my collection," would that be to further go on with what you were talked about? Would that help the practical joke? A. I don't recall saying something like that. MS. WILKINSON: I guess he's asking if you said something like that, was that in connection with the prank, or was that because you have a collection? THE WITNESS: I don't recall saying that. However, if that's something that I would have said, that would have been in reference to the prank. It would not be in reference to any sort of -- any collection that I have because I do not have one. BY LIEUTENANT PROLL: Q. So here you are purposely gaining attention to what you're doing. So who else there knew that you took the wheel cover? You're making a point to not be secretive or whatever, so you're working with people. Who else knew that you took it? A. I didn't check in with anyone. I didn't -- my intent -- my focus was on Sergeant Pfarr. I recall ' Benson being here, being close by when it happened. MS. WILKINSON: Did Sergeant Pfarr say anything Cal -Pacific Reporting, Inc. 415.578.2480 Page 24 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 769 1 2 3 4 5 6 7 8 9 10 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 to you to make it suggest that he saw or knew what you r were doing? LIEUTENANT PROLL: Well, I'm going to get into that in a minute. MS. WILKINSON: Okay. THE WITNESS: So I -- i BY LIEUTENANT PROLL: Q. But I mean, here you're going overboard in i being loud, and so you don't know who your audience was besides Sergeant Pfarr? MS. WILKINSON: Are you asking him if anybody said anything that would make him know specifically? LIEUTENANT PROLL: Well, I mean, if I ask Kevin a question right now and you're right there, you're going to know what we're talking about. MS. WILKINSON: Right. But by the same token, that's simply by virtue of proximity. I mean, sometimes you know somebody overheard something because someone f else did something. LIEUTENANT PROLL: Right. But I mean, just l bear in mind, I've interviewed probably ten people that all had comments on this very question. And for Kevin to be there and he was the one -- ' MS. WILKINSON: He can only tell you what he did and what he knows from other people's comments or Cal -Pacific Reporting, Inc. 415.578.2480 Page 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 770 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 behavior that they know. For example, he certainly knows that the tow truck driver is aware that he used a screwdriver because he asked for a screwdriver. LIEUTENANT PROLL: Right. MS. WILKINSON: So I mean, you can't -- I'm assuming you're not asking him to speculate. He can only give you the best recollection -- LIEUTENANT PROLL: Yes. But I'm just. MS. WILKINSON: -- he has a year after the fact. LIEUTENANT PROLL: -- reiterating that he's making a big deal of it. Like, besides Sergeant Pfarr, if anybody who knew of this. MS. WILKINSON: To your knowledge is all you can say. THE WITNESS: The only person I know specifically that would have had knowledge of it was Benson because I talked to him after the fact. But I did not approach anyone else. I did not make sure that anyone else was watching, looking. I just was doing what I was doing. I wasn't trying to check. BY LIEUTENANT PROLL: Q. But you're positive Sergeant Pfarr knew you removed it? A. I'm positive he knew. Cal -Pacific Reporting, Inc. 415.578.2480 Page 26 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 771 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/ 27/2014) Transcribed: June 18, 2015 Q. Would Sergeant Pfarr have seen you remove it and then place it on the other one that was on the street already? A. I know that he knew I was doing things. I don't know specifically what he saw me specifically do. I can't speak for what he saw, obviously. But I know he knew things were going on based on his reaction. That's how I know that he saw, that he knew what was happening. Q. So in summary of the specific part thus far, the only thing you removed from that car that you remember was a wheel cover that you believed to be on the right passenger rear? A. That was the only thing that I took off the car. Q. Did you try and remove the emblem? A. I think there was an initial look at it. I went -- that was the first thing after getting the screwdriver, that I went and looked at it, and it was going to be impossible to come out, come off. And I didn't want to cause any damage to the car. I didn't want to break anything. Q. Wasn't the car totaled? A. Oh, the car was totaled. Q. Okay. A. But I didn't want -- what I was -- my intention Cal -Pacific Reporting, Inc, 415. 578.2480 Page 27 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 772 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 and my prank, I didn't want that to -- even a totaled car, if it was burned, I wouldn't have wanted to cause -- myself to cause any more damage to a car. Q. Okay. A. I was -- that's why the hub cap was there. It was because it was something that you can just pop on and off, and it wouldn't have caused any damage to the cap or the car. Q. Do you know if you tried to remove the emblem, or just looked at it and go, "There's no way I can remove that"? A. I recall having the screwdriver and I recall having the screwdriver against the emblem, but I don't recall -- I never took the emblem off. I never -- Q. Was there a rear emblem too? A. There's probably a rear emblem. MS. WILKINSON: Do you remember? THE WITNESS: There probably is one. BY LIEUTENANT PROLL: Q. Do you remember doing anything with the rear emblem? A. I recall doing something with the one emblem, and it was not going to -- it was going to cause damage to the car, and I went away from the whole emblem thing. Q. So did you make a statement about having a Cal -Pacific Reporting, Inc. 415. 578.2480 Page 28 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 773 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 collection of car parts that you took from accident scenes? MS. WILKINSON: He's already answered this question. LIEUTENANT PROLL: Well, this -- not only here but the collection from accident scenes. MS. WILKINSON: He's already indicated that he doesn't have a collection -- LIEUTENANT PROLL: Okay. MS. WILKINSON: -- and that he doesn't remember whether or not he talked about collections, but if he did talk about collections, it was in connection with furthering the prank, not because he has one. So I think the question has been asked and answered. LIEUTENANT PROLL: I see a little difference. MS. WILKINSON: May you can clarify what the difference is, what you're looking for here that he didn't previously answer. You're asking him to recount specifics of statements that happened almost a year ago, and I think he's given you his best recollection. LIEUTENANT PROLL: Yeah, when I asked originally, was I just kind of specifically brought up the word "collection." And this is a little further of a question. Q. And you can easily say no. The question that I Cal -Pacific Reporting, Inc. 415.578.2480 Page 29 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 774 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 wrote here is: "Did you make a statement about having a collection of car parts that you took from accident scenes?" A. I do not recall making that statement, and I don't have any collections from any other scenes at any other time. MS. WILKINSON: Similar to what he said earlier, if that answers your question. BY LIEUTENANT PROLL: Q. Did you and Sergeant Pfarr have any discussions regarding the Bentley car parts while at the scene and, if so, what were they about? A. I don't recall having any conversation at the scene with him. The only thing he said to me was, "I can be here" -- something to the -- or something to the effect of "I can't be here for this. I'm not going to a part of this," something to that effect. And then he walked away and got in his car and left. Q. What do you think he was referring to? A. I think he was referring to the fact of me taking the car part off the car. Q. At this time does -- in your mind does Sergeant Pfarr know he was the purpose or the thing for the practical joke? A. I don't know. But as he's walking, I tried to Cal -Pacific Reporting, Inc. 415.578.2480 Page 30 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 775 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 make that apparent to him because as he's walking away, I'said, "I'm just messing around." But with no acknowledgement. So whether he heard me or not, I don't know. But the -- Q. And when you say you were "just messing around," you're referring to him? A. Correct. And obviously the taking of the parts, that whole... Q. Okay. While Sergeant Pfarr is at the scene, did he tell you to put the car back -- put the car part back? A. While he was at the scene? Q. Right. A. No. Q. While Sergeant Pfarr was at the scene, he is well aware you removed this wheel cover. And then he just tells you he can't be here, and he starts to leave. And what did you do? A. As I said, I said as he's walking, "I'm just messing around." And at that time I felt like what I was doing and my prank was not received well. Q. Did he say anything that it wasn't received well? A. Not at that time. And I -- Q. Did you take that, that it wasn't received Cal -Pacific Reporting, Inc. 415.578.2480 Page 31 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 776 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Kevin Waddell (01/27/2014) IA 13-004 Transcribed: June 18, 2015 well, that he ignored you or he was walking back to get in his car and leave, or what? A. I took his comment, him walking away, and him not responding to me saying "I'm messing around," I took all of that collectively as he was not happy with me or it. a Q. And so he drives away? 1 1 i A. Yes. Q. And then what happens? A. At that time I gave the screwdriver back to the tow truck driver, and I put the hub cap on the driver's seat, I recall. Q. Driver's seat of? A. The Bentley -- or in the passenger's seat in the front of the car. I recall making a point with the tow truck driver that I didn't have any need from him; I was just messing around because I didn't want him to think that there was something to do with me taking these things. Q. So what did you specifically tell the tow truck driver that you remember? A. I remember telling him specifically, "What do I need hub caps for of a Bentley? What am I going to do eB F with them?" And I remember telling him that I was just fd messing around. i Cal -Pacific Reporting, Inc. 415. 578.2480 Page 32 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 777 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 Q. Did he say anything? A. I don't recall. I remember him awkwardly chuckling or something. I don't remember if he had any response. Q. So you put the car part back in the interior of the Bentley? A. The driver had already had the car loaded up and ready to go. Q. So it was on the tow truck? A. I think he had the wrecker. I don't think was it a flatbed? I don't remember. He already had the car loaded up. So I didn't want to take any more of his time or take the time to try and put this thing back on there. I just put it inside the car to make sure that it stayed with the car. Q. So I mean, do you recall if the car was on the tow truck, or was it just sitting on the street and you went and put it back in? A. Well, the car was in the dirt off the street. It could have -- he could have had the car on the lift. I remember it being an angle and having to get up. So I don't remember exactly at what point the car was in the 3 tow truck. But it could have still been on the ground. Q. Was it just something you, like, tossed it in 1 i the driver's window or opened the door and put it in or + Cal -Pacific Reporting, Inc. 415.578.2480 Page 33 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 778 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Kevin Waddell (01/27/2014) IA 13-004 Transcribed: June 18, 2015 what? A. Yeah. The windows were all broken out of the car, so the windows were open. So I had reached in and put it down on the seat inside the car. Q. I mean, do you think you climbed on the -- you would have to climb on the tow truck if the car was already on the tow truck. A. Yeah, if it was a flatbed, I would have had to have gotten up. But I remember walking -- I don't remember if he had a flatbed or if he had the wrecker. I don't remember. But I remember putting it in the car. And I know I put it in the car because I made a point to make sure the tow truck driver knew, saw and would acknowledge that it got back in the car. Q. Did you and Sergeant Pfarr have a phone conversation after Sergeant Pfarr left the scene? A. Yes. Q. And what prompted that? A. He called me. I answered the phone. I says, What's up?" He goes -- he told me that I put him in a bad spot and that I needed to put back the car parts. And I had told him that I already had put the car parts back and that I was just messing around with him. And that he said that regardless of what I was doing, what would it look like to the tow truck driver, what would Cal -Pacific Reporting, Inc. 415. 578.2480 Page 34 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 779 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 it look like to the other people that were there, by what I was doing. He reemphasized that I put him in a bad spot. I again tried to assure him that I was just joking around; I'm just messing around. All the car parts are back in the car. I have no need for those things. And that was -- and that was the end of the phone call, to my recollection. Q. So he calls you on your personal cell? A. Yes. Q. And says you put him in a bad spot. You said, I was already -- I was joking around, and I've already put the part back in the car"? A. Yes. Q. And was that the end of it? A. That was the end of the phone call. Q. Okay. Did he tell you anything else? MS. WILKINSON: He just gave you a full description. I mean, anything other than what he just described to you? THE WITNESS: It could have been something to Come talk to me when you get back." I had already eclipsed my regular shift, so you know, I think he could have said something; "Hey, come check out with me before you leave" or something in closing for a phone call. But I don't recall there being anything else specific to Cal -Pacific Reporting, Inc. 415.578.2480 Page 35 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 780 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 the car or the parts. BY LIEUTENANT PROLL: Q. So you don't remember if he asked you on that same conversation to come and see him in the -- at the A. No. He very well could have. That would have been a normal closing or ending. Because I did go see him at the station in the office after that, so... Q. What I'm getting at: Did he prompt you coming to see him, or did you specifically -- you were just going to go back and check out and go home like we always normally do? Was there a prompt from him based on all this that "Come to the station and talk to me"? A. I don't recall anything specific about him telling me to come. Q. But you went and saw him? A. But I did go see him after. Q. And where was that? A. In the sergeant's office. Q. And what happened there? A. I went in. I believe I started with asking him if there's anything else he needed from me or about the crash. I think he said no. And he then reemphasized again about the car parts, that it was a bad idea, put him in a bad spot. Would would the other people there Cal -Pacific Reporting, Inc. 415.578.2480 Page 36 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 781 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/ 27/2014) Transcribed: June 18, 2015 think? They're junior officers that were there. What are they going to think? He then emphasized with me that he spoke to -- he told me specifically, "I spoke to everyone that was there, and I made sure that they knew that I handled this with you." That was specifically what he said to me. Q. He asked you to speak to everybody that was there? A. He told me that he had already spoke to everybody that was there and that he made sure that they knew that he had handled this incident with me already. Q. Okay. Just I get this right. Sergeant Pfarr spoke to everybody who was there, and he reassured everybody that it has -- that the incident of taking the car part has been handled with you? A. Yeah. He -- specifically what he told me was that he said -- Sergeant Pfarr said, "I spoke to everyone that was there, and I told them that I handled it with you." Q. Subsequent to that, did you have any conversations with anybody that Sergeant Pfarr had spoke to as a kind of a closure on this? A. On the way out going to get something out of the car and leaving, I saw Benson in the parking lot, and I had a conversation with him at his window of his Cal -Pacific Reporting, Inc. 415.578.2480 Page 37 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 782 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/ 27/2014) Transcribed: June 18, 2015 car. And I told him -- I assured him that I didn't want to put him in a bad spot, I had no intention of taking anything, and I expressed to him that I made a bad decision. Q. During this, either on the phone or at the station with Sergeant Pfarr, did you tell him why you took the car parts? A. Other than saying that I was just messing around and I was just joking, stuff like that, I didn't get into specifics because I felt like he was upset with me, upset with the situation. So I didn't want to. Q. So the things you talked about before that he's a new sergeant and he's got this relationship with Sergeant Amoroso and stuff, those things didn't come up as a reason why you did this? A. I did not bring that up with him. Q. So when you left there that night, why do you think Sergeant Pfarr -- As soon as I say anything else, you're going to object, so I'm just going to stop right there. So he, as far as you know, did not know that night at the end of that night that this was all a practical joke on him? A. He did not know that from me. Q. Did you have any other communications with Cal -Pacific Reporting, Inc. 415.578.2480 Page 38 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 783 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/ 27/2014) Transcribed: June 18, 2015 Sergeant Pfarr that night regarding this incident? A. I don't believe I did. Q. Did you text him a photo of the car part? A. I don't remember. I don't know that I did. I don't know. I don't remember that at all. Q. Would that be something -- would you have remembered something like that? MS. WILKINSON: I don't know if someone could answer a question like that. He can only tell you i whether he remembers or not. If he did, then there'd be 1 a record of it. i BY LIEUTENANT PROLL: Q. You're very specific about when you took it, what you took. F i A. Sure. Q. And through my interviews, there was a text from you to Sergeant Pfarr right after he left the scene, of a photo from your phone of the car part in the Bentley. MS. WILKINSON: Do you remember doing that? THE WITNESS: I could have. And if that has been said -- I don't remember doing that. However, if that is -- that very well could be something I did that would -- just to qualify that the part was back in the car. I did not want there to be any disparity. If Cal -Pacific Reporting, Inc. 415.578.2480 Page 39 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 784 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 that's -- I don't remember that at all. MS. WILKINSON: It has been almost a year. LIEUTENANT PROLL: Right. But I mean, he remembers taking it and putting it back and all this. And then, I mean, like we were talked about, if the car was up on a tow truck, you have literally had to climb up there to take this picture because the picture was of an item inside the car. MS. WILKINSON: All he can tell you is what he THE WITNESS: Honestly, that -- I don't remember the location of the car on the tow truck, if it was the flatbed tow truck or the wrecker tow truck. I don't -- you bring that up now. That is -- I don't remember. LIEUTENANT PROLL: We'll request, as part of this, would be his phone record from January. MS. WILKINSON: I'll talk to him about it. It's not something you either have the right to request or require from him. 'Under Government Code Section 3309, the Department can neither ask nor require that he produce any item of this -- of his personal property. But I'll take it under consideration. LIEUTENANT PROLL: Okay. But I mean, in his own reason why, if not that he remembers doing it, but Cal -Pacific Reporting, Inc. 415.578.2480 Page 40 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 785 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 if he did do it, he said, "Well, I was just showing that it was back." MS. WILKINSON: From that perspective, I would imagine Sergeant Pfarr has it on his phone. LIEUTENANT PROLL: We have one side of it; let's put it that way. MS. WILKINSON: Well, maybe it would refresh his recollection to show him it. LIEUTENANT PROLL: Well, we just have the record of -- MS. WILKINSON: Oh, that a communication was LIEUTENANT PROLL: Right. MS. WILKINSON: So you have a record that a text was made from his phone to Sergeant Pfarr's phone, but no actual copy of what was sent? LIEUTENANT PROLL: Correct. We have a communicate on a -- a line on a phone bill showing -- MS. WILKINSON: Right, that there was a communicate from one to -- oh, I'm sorry. Go ahead. LIEUTENANT PROLL: That Sergeant Pfarr called Officer Waddell -- MS. WILKINSON: Right. LIEUTENANT PROLL: -- after leaving the scene. And because of the way the iPhones work, we needed from Cal -Pacific Reporting, Inc. 415.578.2480 Page 41 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 786 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 the other end, the sending of the text. MS. WILKINSON: Right. LIEUTENANT PROLL: Because Sergeant Pfarr's phone bill does not show a text. MS. WILKINSON: No. But he should have had it -- if he has an iPhone, he would have it on his phone, the text itself, and could take a picture of it or recover that from the hard disk of Sergeant Pfarr's phone. LIEUTENANT PROLL: Right. And that wasn't MS. WILKINSON: It could still be done. LIEUTENANT PROLL: Not if he deleted it. I don't know. MS. WILKINSON: Yeah. Well, if it's -- I will tell you from practical experience, if it was on his phone and hasn't been overwritten, they can pull it off, yeah, even if Sergeant Pfarr deleted it. So I would request -- LIEUTENANT PROLL: Okay. MS. WILKINSON: -- that the Department try to get it first from Sergeant Pfarr's phone before we go invading the privacy of his phone with regard to it. We'll check and get back to it. But I think that that i would be the proper place to start because then it would Cal -Pacific Reporting, Inc. 415. 578.2480 Page 42 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 787 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/ 27/2014) Transcribed: June 18, 2015 protect and insulate the Department from committing a violation of the Bill of Rights Act by asking him for material it's not allowed to ask him for. LIEUTENANT PROLL: Well, I'm not demanding it anyway. It's like it's almost proving -- MS. WILKINSON: I understand. LIEUTENANT PROLL: And I'm not -- MS. WILKINSON: No, no, I understand. But I want you to understand, and I know Sergeant Pfarr knows this because he was in the IA class last week that I taught, Government Code Section 3309 says that the Department shall neither request nor require. So a Bill of Rights Act violation happens by the request. LIEUTENANT PROLL: Okay. MS. WILKINSON: Not just by the requirement that it be produced. And so to avoid -- you know, to avoid that component -- I'm just looking to see if I have my note. LIEUTENANT PROLL: I was just -- let's just leave it as is. MS. WILKINSON: Yeah, we'll just leave it at that. If you're able to get it from Sergeant Pfarr's phone, it would be much cleaner. And since I already have one aspect of the Bill of Rights Act that I'm contending was violated, I'd do my best not to Cal -Pacific Reporting, Inc. 415. 578.2480 Page 43 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 788 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 accumulate more. So I'd suggest that you go back and look at that section first and then see whether it can be retrieved. I will then talk to him about it as well. LIEUTENANT PROLL: Okay. Q. So just in summary there, you don't remember sending a text? A. This would refresh it if that -- you're saying that he has -- I don't remember. I don't remember. It's a long time ago. I don't remember that aspect of it. Q. Okay. A. But that -- knowing me and my personality and who I am, I would have wanted to have proved -- Q. Right. A. -- what I was just telling him by phone. Q. You know what I mean, just in the "practical joke went bad" scenario, you know he's not happy. He's calling you into the office, all these kind of things. What a great way to say -- MS. WILKINSON: Done. BY LIEUTENANT PROLL: 4 Q. -- "I never left the scene. The part never f left the scene. It's sitting right here." And really the quickest and easiest way to show Sergeant Pfarr that S is a text., Cal -Pacific Reporting, Inc. 415.578.2480 I Page 44 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 789 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 A. Absolutely. And I don't have a recollection -- Q. Okay. A. -- a year later of doing it, but if there is you know. MS. WILKINSON: If Sergeant Pfarr remembers getting one, then I mean -- THE WITNESS: I wouldn't say that it didn't happen. I'm not saying he didn't get one, and I'm not saying that I didn't send it. I'm saying that I didn't remember that until now, and I really still don't remember it. But I -- BY LIEUTENANT PROLL: Q. Just to clear that part up, do you remember anyone else sending him a text of that picture? A. No. That would have been me. I mean, if the -- I just don't remember that. A year later, I just don't remember it. And if the -- MS. WILKINSON: It would be great if he did because it would be exonerating. It just tells you he's being honest. LIEUTENANT PROLL: So we're getting close here. Q. Did you and Sergeant Amoroso recently have a conversation about this incident? A. I talked to Sergeant Amoroso weeks ago. Q. About this? Cal -Pacific Reporting, Inc. 415.578.2480 Page 45 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 790 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 A. About this. Q. And what was the substance of that conversation? A. He told me that he was approached by Sergeant Pfarr, that he may be -- that Sergeant Amoroso may be interviewed about this. And Sergeant Amoroso told me not to do -- to be honest and don't feel that I needed to protect him in any way. Q. He was telling you not -- that you not to feel -- to protect him in any way? A. With relation to our conversation of a prank or anything like that. He wanted me to be honest and he wanted me to not feel that whatever I -- he just -- his emphasis was on being honest and that if he was to be in trouble for being a part of raising an idea of prank, then that would be his to bear and not feel like I had to not say that, not bring it up. It was his emphasis to me. Q. Did you two discuss it being a prank? A. At that time? Q. The three weeks ago. A. He mentioned that to me, yes. And that's my recollection of it as well. Q. Did you make any statement to him about it being a prank? Cal -Pacific Reporting, Inc. 415. 578.2480 Page 46 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 791 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 A. That was -- I told him at that time that was what I was doing. Q. I mean, did you feel that was a time to try to clear yourself and say, "God, Brian, I wish we wouldn't have" -- or "I wish I wouldn't have done that. It didn't go well. Sergeant Pfarr took it wrong." Anything like that? A. We had that conversation the next night about that incident. I told him about the incident that happened, and that he was upset, and that -- MS. WILKINSON: So this conversation three weeks ago was a separate conversation than the one you had before? THE WITNESS: Correct. BY LIEUTENANT PROLL: Q. So the night after the crash, you and Sergeant Amoroso had a conversation? A. Yes. Q. Regarding it being a prank? A. That's my recollection, yes. Q. So this is slightly different than the collection" question, but I'm just going through my questions. We're almost done. And a simple yes or no. Have you ever taken any vehicle parts during accident investigations that were not taken and booked Cal -Pacific Reporting, Inc. 415.578.2480 Page 47 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 792 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 as evidence? Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 A. No. MS. WILKINSON: I'm okay with that question. BY LIEUTENANT PROLL: Q. Do you have any vehicle parts that were taken that were not booked as evidence? A. No. Q. Have you ever taken any DRMO equipment for your own use? A. My own work use but not for my own personal use. Q. Do you have any DRMO equipment at your home? A. I think I have two jackets that I wear when I go to SWAT. I don't have any other equipment. MS. WILKINSON: We didn't have notice that there was any accusation that he had done this on any other prior occasion or that he had had, improperly, any equipment at home. So I would state that those questions are outside the scope of this investigation A that we were identified because they don't have anything to do with this collision on February 22nd. a a LIEUTENANT PROLL: Okay. Those questions are j over with. MS. WILKINSON: Yeah, I understand that. LIEUTENANT PROLL: Okay. Cal -Pacific Reporting, Inc. 415.578.2480 Page 48 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 793 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/ 27/2014) Transcribed: June 18, 2015 MS. WILKINSON: I'm just adding you my objection for the record that those are not proper questions to be asking. LIEUTENANT PROLL: Okay. MS. WILKINSON: And that I would recommend the Department strike any of that from its investigation as not having them properly noticed. BY LIEUTENANT PROLL: Q. Kevin, is there anything else that you know about this incident that I should know about on why all this happened? I can just tell you, there's definitely some differences of opinion by personnel at the scene of what happened. And you know, I would encourage you to -- if there's any other information you can tell me about the prank, those kind of things, this is a good time to tell me anything else you want to tell me about it. A. That was my complete intention at that time, was to mess with, to prank Sergeant Pfarr. I had no intention at any point of taking anything at all. I realize that night that I made a bad choice in doing that. I take responsibility for my actions in that and the position that I put him in and potentially undermining his authority as a sergeant. I see that. And again, my intention was solely to be funny and -- at Cal -Pacific Reporting, Inc. 415. 578.2480 Page 49 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 794 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 Q. Any evidence or anything, other statements that you could tell me that would lead somebody that viewed { this whole thing, "Oh, that's definitely a prank" or "He i was stealing that"? What is -- I mean, you were there. You know about where kind of people were and what they heard and stuff. Anything to lead -- statements that would lead someone to believe that this was absolutely, definitely a prank? i MS. WILKINSON: You're not talked about i discussions he had with people afterwards; you're talking about at the scene? LIEUTENANT PROLL: Right. MS. WILKINSON: A good prank doesn't reveal it during the time of its execution. But to the degree that you can answer that. LIEUTENANT PROLL: A good prank doesn't end up here. MS. WILKINSON: Ah, no, Don. Don't believe that. You should see some of the pranks that have ended up in IA. Maybe not in San Luis Obispo. THE WITNESS: With that specificity, I don't recall the -- any statements I would have made, again. But your later -- say specific things that I had said to try and identify to other people that it was a joke, Cal -Pacific Reporting, Inc. 415.578.2480 Page 50 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 was -- I can remember being -- just being over the top and being out in front of everybody and not trying to hide anything, doing it with him right there. BY LIEUTENANT PROLL: Q. But you're telling me that stuff, but you're not in specifics on how you were over the top of what you were specifically doing. Because, I mean, there's people right there that are working with you that had no idea this was a prank until I interviewed them. And so here I'm getting this picture that you're, "Oh, we're going to mess with Chad. Everybody here, we're going to mess with Chad." And there's people working with you hand in hand -- MS. WILKINSON: I think maybe you're misinterpreting what he's saying. He was indicating that he was not concealing what he was doing and that he was being loud and verbose about taking the wheel well, not the fact that it was a prank. So somebody's going to steal a wheel well, really? They're going to do it -- LIEUTENANT PROLL: Well, that's -- MS. WILKINSON: -- paying attention to what they're doing? LIEUTENANT PROLL: Well, that's kind of -- as the uninvolved person watching this whole thing, I mean, Cal -Pacific Reporting, Inc. 415.578.2480 Page 51 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 796 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/ 2014) Transcribed: June 18, 2015 we would know the difference. And I'm saying that he's purposely being loud and -- MS. WILKINSON: All he can tell you is what he remembers, and he's gone into it in extraordinary detail. We are prejudiced by the fact that the Department knew about it on the night of it, and Sergeant Pfarr certainly represented that he investigated it at the time, which brings me back to my original objection, which is had this been something that was timely addressed in a proper manner -- memories are fresher closer in time. So this is an event which, by virtue of the counseling that Sergeant Pfarr gave him, was closed, in his mind, at the time that it happened, as a bad deal. So the idea now that suddenly nine, ten, eleven months later he has to go back and something that he thought was over and done with and remember with specific details who was where and what he said and how he said it, that's prejudicial. This is precisely why these things are supposed to be dealt with in a timely fashion, which brings me back to my original complaint. LIEUTENANT PROLL: I was just in summary overall trying to give him an opportunity to sum up the notion that it was a practical joke and nothing else. Cal -Pacific Reporting, Inc. 415.578.2480 Page 52 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 797 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/ 27/2014) Transcribed: June 18, 2015 MS. WILKINSON: I think he's told you he was open about it, he didn't hide it, he was loud, and he was doing it right in front of people. In his view it was obvious that this was not something that he intended to do or to take, but it was designed, as he already described to you, to get a reaction out of Sergeant Pfarr. The reaction he got was not the reaction he was looking for. And so end of story; lesson learned. BY LIEUTENANT PROLL: Q. If Sergeant Pfarr hadn't arrived at the scene or -- did you do this because he was there? A. Yes. Q. So let's say he didn't come to you and say these things like, "You put me in a bad spot" or walked away from you, which were the two indicators of you thinking that this didn't go well. What if none of that had happened? What would have happened with this incident? A. The exact same solution would have happened. The end result would have been the same. The hub caps would have been back in the car. And had he -- there's a lot of what -ifs to it. But if he didn't call me or didn't come to me, I could see myself going to him to clear it up, but it didn't get that far. Q. Okay. Cal -Pacific Reporting, Inc. 415. 578.2480 Page 53 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 798 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 MS. WILKINSON: In terms of the amount of time that passed from Sergeant Pfarr leaving the scene to you getting the phone call, can you estimate how long that was? THE WITNESS: I felt like it was minutes, two to three minutes. BY LIEUTENANT PROLL: You know, I would -- we have that stuff timed and stuff. MS. WILKINSON: Yeah. BY LIEUTENANT PROLL: Q. I would have asked, you know, "How much longer, how much later did you send the text?" MS. WILKINSON: We don't know when that was. BY LIEUTENANT PROLL: Q. You don't remember doing that. MS. WILKINSON: I'm sure the record tells you, though. LIEUTENANT PROLL: But that is the one thing I'm interested in on the text, is what time it was. MS. WILKINSON: So from your recollection -- let me see if I can get this. And we are getting just your best recollection almost a year after the fact. Sergeant Pfarr leaves. Does he call you before or after you've already put the wheel cover back into the seat of the vehicle? Cal -Pacific Reporting, Inc. 415. 578.2480 Page 54 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 799 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell Audio of: Officer Kevin Waddell (01/ 27/2014) IA 13-004 Transcribed: June 18, 2015 1 THE WITNESS: It was already back in the car, and that's what I told him on the phone. When he told me to put them back in there, I said, "It's already in I there. I already put them back. I was just messing s around." And so the photo message is reasonable. That would have been something I would do. That would have been something that -- I wish I could remember doing it because it's a very reasonable thing for me to do. I would want to have shown him. He wasn't there to -- the tow truck was going to leave. MS. WILKINSON: Make sure he knew what you said you were? THE WITNESS: Exactly. BY LIEUTENANT PROLL: Q. When you met, like, three weeks ago with ' Sergeant Amoroso, and basically he told you that he was approached by Sergeant Pfarr, that Sergeant Amoroso 9 I might be interviewed regarding this? 1 A. That's what he told me that Sergeant Pfarr told him. S Q. And then he told you to be honest. Did -- so other -- prior to Sergeant Amoroso talking to you three s weeks ago, did you have any indication that the Bentley i part was coming up? y A. No. f i Cal -Pacific Reporting, Inc. 415.578.2480 Page 55 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 Q. So he was the person that told you? A. He started that with, "Do you remember a crash last yard about a Bentley that rolled over?" And I said -- I told him yes. MS. WILKINSON: And that was the first you heard of it being an issue again, after that night? THE WITNESS: That was the first time that I've heard of that since the day of. BY LIEUTENANT PROLL: Q. So what brought that topic up? A. Sergeant Amoroso brought it up because -- Q. Based on anything you said or anything? A. Absolutely not. I hadn't seen him in weeks before that and -- Q. Right, but anything you said during that conversation? A. No. He offered -- MS. WILKINSON: Is that how the conversation THE WITNESS: I was at -- I had stopped at his house for something unrelated, to get a tool or something. LIEUTENANT PROLL: Okay. THE WITNESS: And he said, "Hey, by the way, Sergeant Pfarr pulled me aside and said that I might get Cal -Pacific Reporting, Inc. 415. 578.2480 Page 56 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 801 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 interviewed on this case. Do you remember a Bentley crash last year?" And I said yeah. BY LIEUTENANT PROLL: Q. So that was the -- that started the whole thing? A. He -- yes. He started that. Q. You don't -- do you recall talking to him about being upset that this process from the other IA was going on so long and that you were, like, "God, I want to go back to work. What could be going on?" And that's when he brought up this? A. I could have expressed that frustration that I don't know what's going on; it's been a long time. That could have been what had prompted him to say what he said, but I didn't -- I knew nothing about it, heard nothing about it till he brought it up. Q. I know this a supposition, but had -- when you guys were driving around in the truck that night or the night before, had that discussion never came up, would you have taken the wheel cover? A. It was my choice to take the wheel cover. I take responsibility for the prank being itself. I don't think that that would have been something that I would have done, had we not talked about it. I feel like that was a -- that put my mind in that realm to do a prank. Cal -Pacific Reporting, Inc. 415.578.2480 Page 57 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 802 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/ 27/2014) Transcribed: June 18, 2015 Q. Okay. And that was his idea? A. I remember it being a general discussion. I don't recall who -- I don't remember having it. So I ` recall him bringing it up. LIEUTENANT PROLL: Do you have any questions? You guys have anything further? MS. WILKINSON: Nothing further. LIEUTENANT PROLL: It is now 3:23, and I will be turning the tape recorders off. MS. WILKINSON: Okay. Thank you. End of recording) 000- Cal -Pacific Reporting, Inc. 415.578.2480 H Page 58 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 803 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In Re: Matter of Kevin Waddell IA 13-004 Audio of: Officer Kevin Waddell (01/27/2014) Transcribed: June 18, 2015 CERTIFICATE OF TRANSCRIBER I hereby certify that the foregoing recorded proceedings in the within -entitled cause were transcribed by me, CHRISTINE BOLDT, CLT, a disinterested person, and were thereafter transcribed into typewriting. Dated: June 18, 2015 Christi dt, CLT Cal -Pacific Reporting, Inc. 415.578.2480 Page 59 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 804 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 805 r 3t t: Jeffery Smith iaj,§: Re: Fall Downtown Foot Patrol OT sate, September 29, 2013 at 5:47 PM Kevin Waddell Yes thanks for checking I will put it on schedule tomorrow Sent from my Phone On Sep 29, 2013, at 11:29 AM, "Waddell, Kevin" <waddell@slocity.ora> wrote: Just wanted to confirm I was scheduled for these days. I didn`t see it in peedshift yet. Thanks Kevin On Sep 23, 2013, at 0:01 AM, "Smith, Jeffery" <:islrlithL Bloc t .orc > wrote - Just want to confirm you can work the below listed dates. j 3 ie.. <'t„rs :^:id°; l;ai•1`(.. ., ... ': ;...;:: i %. : z',. °.,'p Lt I have a scheduling error, but I have a possible solution. I signed up for October 12h, 131h, 26th, and 27th for CAT. I have scheduling issues which have come up. I apologize for the inconvenience but Officer Waddell is interested in all of them. If you'd like I can find out if there's someone else? Jason iz§i is ;ith" 4ffet-, Sent:\,,'V, an . sic: ..,.:=8, ''t.' i3 3..,." , T6: .. :'i3, _,,=z:: ; 1, ,,,.... ? .. ' J> e.0 ' <''i;"':; .`°.:•:. , `;`' .. Er (i€2."F tl, ;' . ; "'t"q 7. 1a< l a%3: Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 806 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 807 THE INFORMATION CONTAINED IN THE FOLLOWING DOCUMENT IS CONFIDENTIAL AND IS PROTECTED BY A PROTECTIVE ORDER. THIS DOCUMENT CANNOT BE COPIED OR DISCLOSED TO THE PUBLIC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 808 Police Department t 1042 Walnut Street, San Luis Obispo, CA 93401-2729 805.781.7317 sloclty org MEMORANDUM July 22, 2014 To: Sergeant Chad Pfarr From: Chief Stephen Gesell Via: Captain Staley CJ Subject: Reprimand for Failure to Supervise On February 22"d 2013, you were the on scene supervisor at a major traffic collision. Officer Kevin Waddell was present and removed parts from the vehicle involved in the collision while you were there. Your initial belief was that Officer Waddell's actions constituted an inappropriate joke and you failed to investigate his activities. Your failure to investigate this officer's behavior is an unacceptable lapse in supervision. You also failed to document the incident at the time it occurred or properly inform your supervisor of the situation. It is expected that this failure to supervise will not occur again in the future. In accordance with Government Code Section 3306, you have 30 days within which to file a written response to an adverse comment entered into your personnel file. Should you submit a written response, it will be attached to and accompany this written reprimand in your personnel file. Received By: Sergeant. Chad Pfarr Date I JeT—r T --a Q"Tr, . V cr 6-p— "-fZ 4 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 809 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 810 San Luis Obispo Police Department AW OD Policy Manual Personnel Complaint Procedure be provided to the employee prior to any subsequent interview (Government Code 3303(g)). g) If the allegations involve potential criminal conduct, the employee shall be advised of his/her Constitutional rights pursuant to Lybarger. This admonishment shall be given administratively whether or not the employee was advised of these rights during any separate criminal investigation. (Government Code § 3303(h)). h) All employees subjected to interviews that could result in punitive action shall have the right to have an uninvolved representative present during the interview. However, in order to maintain the integrity of each individual employee's statement, involved employees shall not consult or meet with a representative or attorney collectively or in groups prior to being interviewed (Government Code § 3303(i)). i) All employees shall provide complete and truthful responses to questions posed during interviews. j) No employee may be compelled to submit to a polygraph examination, nor shall any refusal to submit to such examination be mentioned in any investigation (Government Code § 3307). 1020.6.1 ADMINISTRATIVE SEARCHES Any employee may be compelled to disclose personal financial information pursuant to proper legal process; if such information tends to indicate a conflict of interest with official duties, or, if the employee is assigned to or being considered for a special assignment with a potential for bribes (Government Code § 3308). Employees shall have no expectation of privacy when using telephones, computers, radios or other communications provided by the Department. Assigned lockers and storage spaces may only be administratively searched in the employee's presence, with the employee's consent, with a valid search warrant or where the employee has been given reasonable notice that the search will take place Government Code § 3309). All other departmentally assigned areas (e.g., desks, office space, assigned vehicles) may be administratively searched by a supervisor, in the presence of an uninvolved witness, for non -investigative purposes. (e.g., obtaining a needed report or radio). An investigative search of such areas shall only be conducted upon a reasonable suspicion that official misconduct is involved. 1020.6.2 ADMINISTRATIVE INVESTIGATION FORMAT Investigations of personnel complaints shall be detailed, complete and essentially follow this format: Introduction - Include the identity of the employee(s), the identity of the assigned investigator(s), the initial date and source of the complaint. Synopsis - Provide a very brief summary of the facts giving rise to the investigation. Summary Of Allegations - List the allegations separately (including applicable policy sections) with a very brief summary of the evidence relevant to each allegation. A separate recommended finding should be provided for each allegation. Evidence As To Each Allegation - Each allegation should be set forth with the details of the evidence applicable to each allegation provided, including comprehensive summaries Personnel Complaint Procedure - 420 Adopted: 2013/09/02 © 1995-2013 Lexipol, LLC Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 811 San Luis Obispo Police Department Policy Manual Personnel Complaint Procedure of employee and witness statements. Other evidence related to each allegation should also be detailed in this section. Conclusion - A recommendation regarding further action or disposition should be provided. Exhibits - A separate list of exhibits (recordings, photos, documents, etc.) should be attached to the report. 1020.7 DISPOSITION OF PERSONNEL COMPLAINTS Each allegation shall be classified with one of the following dispositions: Unfounded - When the investigation discloses that the alleged act(s) did not occur or did not involve department personnel. Complaints which are determined to be frivolous will fall within the classification of unfounded (Penal Code § 832.5(c)). Exonerated - When the investigation discloses that the alleged act occurred, but that the act was justified, lawful and/or proper. Not Sustained - When the investigation discloses that there is insufficient evidence to sustain the complaint or fully exonerate the employee. Sustained - When the investigation discloses sufficient evidence to establish that the act occurred and that it constituted misconduct. If an investigation discloses misconduct or improper job performance which was not alleged in the original complaint, the investigator shall take appropriate action with regard to any additional allegations. 1020.8 COMPLETION OF INVESTIGATIONS Every investigator or supervisor assigned to investigate a personnel complaint or other alleged misconduct shall proceed with due diligence in an effort to complete the investigation within one year from the date of discovery by an individual authorized to initiate an investigation. In the event that an investigation cannot be completed within one year of discovery, the assigned investigator or supervisor shall ensure that an extension or delay is warranted within the exceptions set forth in Government Code § 3304(d) or Government Code § 3508.1. If the nature of the allegations dictate that confidentiality is necessary to maintain the integrity of the investigation, the involved employee(s) need not be notified of the pending investigation unless and until the employee is interviewed or formally charged within one year of discovery. Upon completion, the report should be forwarded through the chain of command to the commanding officer of the involved employee(s). Once received, the Chief of Police may accept or modify the classification and recommendation for disciplinary action contained in the report. Within 30 days of the final review by the Chief of Police, written notice of the findings shall be sent to the complaining party. This notice shall indicate the findings, however, will not disclose the amount of discipline, if any imposed. The complaining party should also be provided with a copy of his/her own original complaint (Penal Code § 832.7). Any complaining party who is not satisfied with the findings of the Department concerning their complaint may contact the Chief of Police to discuss the matter further. Personnel Complaint Procedure - 421 Adopted: 2013/09/02 ©1995-2013 Lexipol, LLC Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 812 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 813 White, Kelly From: Smith, Jeffery Sent: Thursday, November 21, 2013 8:04 AM To: Waddell, Kevin; PD -ALL Subject: RE: DRMO Property This is not acceptable and all items need to be returned to the boxes. Additionally, the officers who went through these boxes leftthe sally port a mess. When returning the items taken I would like all items but back in the box. Original Message ----- From: Waddell, Kevin Sent: Thursday, November 21, 2013 7:51 AM To: PD ALL Subject: DRMO Property It has brought to my attention that many people taken it upon themselves to take property from the DRMO boxes in the sally port. Neither Officer Berrios or myself received a text or email from anyone seeking a release of any of the property. None of that property has been inventoried and it is absolutely critical it all be inventoried. Anytime we have obtained property and it can be handed out we let everyone know. There were items in these boxes already allocated for certain things. I will ask and expect that everyone who took property please respond to this email with a list of what you took. I will also ask that no other property be taken at this time. Once the items have been inventoried we will send another email inviting people pick up property they desire. Thankyou Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 814 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 815 9_N Doc^34 Page 1 of 1 Employee: #89650 WADDELL, KEVIN J 30 minutes left Page. F__0 of 1 Pay Period Hours Hours Paid at Rate Department Division Worked Leave Total Standard OT 1.0 OT 1.5 Start End 80 80200 128.60 116.60 82.00 44.60 5/23/2013 06/05/2013 FLSA Profile Union Class Pay Hours Status Pay Method Status Pay Period POS 7512 80 Terminated Hourly RFT FLSA Status Schedule Pay Rate Job Title Available Leave Balances Non -Exempt 4110 PD4 1700-0300 49.8625 POL OFFICER -ED INC FULL 1 0 -I HOL Thu Fri Sat Sun Mon Tue Wed Thu Fri Sat Sun Mon Tue Wed WJ Reason! 5123 5124 5125 5126 5127 5128 529 5130 5131 611 612 613 614 615 i,I Division Project Grants Code Pay Code Hours 10.00 10.00 10.00 OFF OFF OFF 10.00 10.00 10.00 10.00 OFF OFF OFF 10.00 Rate Description S',, i 1 Regular v ® 10, 10.00 08,00 12.00 11.0. 1 11.00 O 12.00 0 note x t N 21 J DONNING ,Comp A.- v 1.111 OOJ 00.10 Q-0.7 00.1 OD 101 OD_10 00.10' 00.1 , =1000.10 O0,10 DONNING nate J YJ3 0 BRIEFING Cane Ac1.5 025 OD•25i L.J O U CRIEFlN aute x! 04 'CAT _ SC-Lxf5 Fos-W7, r- 05 E OS.QD Q Fm -ml ITFT PATROL -- 5 OTS-AVOt SpcEv1x1.5 600 O 0 0 0 O 0 O OTS LWO Du note J I 6 TRAINING Tralnx = 04.00 04.00 O SNIPER TRAININ note J W J 7 SHIFTCON -pAcl.5 v 1.25 0 OD.501E0075 O ILATEREPORTS nate 0- J! lCBx15 v 0.00 0000®oo ot 'OC OATPATROL _ r oeg_J 1YJ10 !_., I HoGdayPay v 2.00 O O O 0200 _! note J 0 11 rata xJ 0-12 r n°te X 01 p rola XJ 1 2 J User Signature: WADDELL, KEVIN J - 6152013 8:16:22 PM Reviewer Signature: PROLL, WILLIAM C - 615201310:08:56 PM Payroll Administrator Signature: SANDERS, SUSAN S - 6162013 11:29:11 AM htt ,lointelliNT /Timecards/Doc 34.htm DAILY TOTALS 10.10 10.1C 08.35 12.10 05,10 VAD 16.60 10.10 16.85 D5,10 19.1C Supervisor Signature: PROLL, WILLIAM C - 602013 10:08:14 PM Department Head Signature: SANDERS, SUSAN S - 6/6/2013 11:27:45 AM Copyright 0 2015 IntellTme Systems Corp. 2 )15Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 816 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 817 San Luis Obispo Police Chief comments on his situation Posted: May 20, 2015 12:11 PM PDT Updated: May 20, 2015 12:11 PM PDT Avg. AQ,10/1/15,11:04PM San Luis Obispo Police Chief comments on his situation By Caroline Lowe RELATED STORIES: Citv has 'no good cause,' to let go of SLO PD Chief._5gys attorney Almost two weeks after San Luis Police Chief Steve Gesell was put on paid administrative leave by City Manager Katie Lichtig, there has been no public explanation for that action or any updates on his status. The chief has also refrained from talking publicly. However, KSBY has obtained a copy of an email the chief sent another member of the SLO Leadership 24 class with his comments on his case. I am continuing not to solicit support however appreciate voices of concern that extend beyond me. Touching on your question, some have asked for info (as they should) regarding conduct that would justify placing a police chief on paid administrative leave. As indicated by the closed session, severance is only considered when at -will employees with employment agreements are terminated without cause. These severance terms are necessary for Police Chiefs as they are the only formal protections insulating us from politically motivated attack or pressure to make decisions that are not in the public's interest. Due to the current situation, I'm currently refraining from comment to avoid making this more of a public spectacle than it is. As I've mentioned in class, job security in my role is minimal and typically the most precarious in any city. I've always understood that but never strayed from focus on public safety. i've attached a summary of accomplishments in the last three years in the event others find it informative. Interestingly enough, the average life span of a chief in CA is currently 2.8 years for a number of reasons... that being said, if this is the end of my tenure in SLD, I have no regrets and had a good run. Feel free to share with Class 24. http://www.ksby.com/story/29116245/san-Iuis-obispo-police-chief-comments-on-his-situation Page 1 of 6 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 818 San Luis Obispo Police Chief comments on his situation Steve SLOPD Significant Accomplishments. 10/1/15, 11:04 PM Significantly improved accountability at the same time boosting morale to career highs according to long tenured employees Emphasized a culture centered on superior service and the fostering of positive relationships Major catalyst in ending the caustic relationship between POA, Administration, City and Community that had persisted 25f years Assisted new POA leadership providing advice on mechanisms they could leverage to improve their reputation and relationships resulting in multiple successful fundraisers benefiting charity Significantly reduced the number of transient encampments within the city with a consistent enforcement effort combined with collaborative efforts involving Park Rangers, Behavioral Health. and Social Services Drove the creation of SLOPD's first ever strategic plan Risked livelihood as a new chief addressing homeless and transient impacts ultimately resulting in positive engagement and collaboration with a myriad of community stakeholders Acquired Automated Vehicle Locater module increasing officer safety and deployment efficiency Bolstered police presence downtown despite staffing challenges Collaborated with the downtown bar owners in the "Safe Nightlife Committee" to promote Ideas designed to reduce the incidence of alcohol related crime Began process to select and deploy body worn cameras for all sworn personnel Initiated the completion of four white papers- Town/Gown Best Enforcement Practices, Campus PD/Municipal PD MOUS, Directed Giving, Safe Parking Program Initiated a study analyzing work related injuries and workman's comp claims Improved SLOPD s readiness for civil unrest through increased training and improved equipment Enforced the Unruly Gathering Ordinance for the first time since its adoption and continued driving the number of noise complaints down through outreach, collaboration with Cal Poly and enforcement efforts Partnered with Behavioral Health twice as Federal grant co -applicants to increase the number of mental health outreach specialists http://www.ksby.com/story/291162 45/san-luis-obis po-police- chi ef- comments- on- his -situation Page 2 of 6 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 819 San Luis Obispo Police Chief comments on his situation 10/1/15, 11:04 PM P,eplaced antiquated mobile data computers and dashboard cameras with state of the art cameras and personally issued tablets Assembled and guided employee committees to form SLOPD'.s first Mission and Vision statements Revived the SLOPD Chaplain program after an 8 year absence Contracted with CA POST to conduct a workload assessment Instituted the "Neighborhood Walk Program" requiring officers to walk their entire neighborhood each calendar year making positive contacts with residents and business owners Reduced crime and fear of crime in SLO's Downtown corridor Hosted the County's Peace Officer Memorial in SLO two consecutive years Conducted two internal employee surveys and one public survey to gauge health and efficiency of the organization Replaced 2596 of police personnel due to attrition Collaborated with Courts ultimately resulting in a system that adjudicates habitual offender cases more effectively Added the beginning of the academic year to the safety enhancement zone ordinance subsequently adopted by Council Added a bicycle theft registration program accessible through the web portal Added Use of Force and Personnel Complaint statistics to the SLOPD Annual Report Added a Traffic Complaint field to the Department's webpage Directed the draft of a proposed synthetic drug ("Spice") ordinance for Council consideration Created a Parks Team program, pairing Public Works employees with officers to address public safety issues in the City parks Acquired access to GPS program designed to apprehend robbery suspects (39) Acquired and installed the City's first three public safety cameras in the downtown corridor Formed the "Police Chief's Roundtable", a community advisory panel to increase connectivity and understanding as well as provide an additional conduit for service needs and input Redeployed existing personnel to form the "CommunityAction Team"as the Department's first dedicated resource focusing on transient and homeless impacts rooted in a problem- http://www.ksby.com/story/29116245/san-Iuis-obispo-police-chief-comments-on-his-situation Page 3 of 6 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 820 San Luis Obispo Police Chief comments on his situation solving philosophy primarily directed at addressing chronic offenders. Results have included major successes reported by Courts, DA, Social Service Providers, and Community as a whole 10/1/15, 11:04 PM Collaborated with University Police to forge the first ever MOU extending University police operational area beyond campus borders and granting authority to enforce SLD Municipal Code Created the Neighborhood Officer Program designed to enhance officer ownership and accountability for solving problems in addition to increasing connectivity with the community Enhanced web presence to include creation of a neighborhood officer map as well as a crime map. The project continues with the acquisition of an RMS module that will enhance mapping capabilities and aid in crime analysis while also greatly improving the public's ability to understand current crime trends and customize their own maps if desired Became the first police chief in the County to adopt a restrictive police pursuit policy while adding tools and tactics to stop fleeing vehicles with less safety risk to officers and the public Terminated an officer for untruthfulness despite external encouragement to levy a lesser level of discipline Served as the regional police chief's association vice chairman in 2093 and chairman in 2014 Selected to sit on the California Police Chief's Association (CPCA) Board of Directors in 2093 representing SLO, Santa Barbara and Ventura Counties Led the process to rewrite SLOPD policy manual and transition to a web based system Lexipol) Serve on the CPCA Political Action Committee Served as a speaker on the topic of homeless initiatives and public safety impacts locally and throughout the State Initiated the and facilitated the pooling of regional DHS Grant funding ultimately enabling SLOPD to obtain the first armored vehicle for SLO County Regional SWAT Team Served on a Subject Matter Expert Panel tasked with developing a training video for CA POST to aid officers statewide in interfacing with transient and homeless citizens Serve on the Allen Hancock Police Academy Advisory Board Serve on the Cal iD Board driving several key technology projects to include new Live Scan stations, mobile fingerprint and facial recognition systems One of 92 police executives selected to travel to Israel attending a counter -terrorism http://www. ksby.coMstory/29116245/san-Luis-Obispo-police-chief-comments-on.-his-situation Page 4 of 6 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 821 San Luis Obispo Police Chief comments on his situation seminar sponsored by the Anti -Defamation League Initiated the FBI investigation and subsequent high profile arrest of a SLOPD narcotics detective assigned to the County task force to include the intense media coverage 10/1/15, 11:04 PM Driving force fostering improved relationships internally and between other City Departments as well as community outcomes representing the Police Department and/or City of San Luis Obispo to include: Downtown Association, Chamber of Commerce, CAPSLO, County Behavioral Health, San Luis Coastal Unified School District, County Board of Supervisors, CAO and other staff, Sheriffs' Department, Cal Poly President and administrative staff, Cal Poly PD, numerous civic groups, etc, initiated and designed a SLOPD mobile application and increased use of social media Oversaw and had creative input into rebranding of SLOPD s patch and vehicle logos Drove a highly touted initiative that provided realistic training for police, fire and school districtpersonnel following a number of highly publicized school shootings to include an accompanying video designed for new teachers and school staff Expanded SLOPD Volunteer Program to include positions that handle tasks in the field such as tagging abandon vehicles and serving as additional eyes and presence in the communiol Assumed a labor intensive regional DUI grant when no other sister agency had the capacity ultimately resulting in a closer relationship with CA State Office of Traffic Safety; a causal factor beinggranted in the only OTS funded DUI Officer position in the region Implemented an alert system designed to notify merchants of retail theft/shoplifting individuals orgroups in the area Principle catalyst encouraging positive culture and programmatic changes in other stakeholder organizations to include CAPSLO, Cal Poly, Cuesta Principle driver and architect of the directed giving "change for change"program and corresponding public education/media campaign that continues to receive attention from Cities throughout CA. Garnered over $35,000 in private sector donation in collaborative multi -media blitz Hired the first reserve officer in over 25 years Member ofSan Luis Obispo Law Enforcement Assistance Foundation 2014 Reshaped Community Outreach Manager position to broaden responsibilities in the area of marketing City and PD initiatives with emphasis on the college-age demographic Represented the City of San Luis Obispo in the "Community Civility Task Force" a two year collaborative endeavor designed to foster programs, policies and practices that build community with strict focus on relationships between the student population and permanent residents. http://www.ksby.com/story/29116245/san-iuls-obispo-police-chief-comments-on-his-situation Page 5 of 6 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 822 San Luis Obispo Police Chief comments on his situation Initiated the use of Nix/e, a web based alert system to send public safety messages to subscribers Managed the intense public exposure the role demands in SLO, effectively building relationships and consistently leveraging the media to shine the most positive light on SLOPD and the City of San Luis Obispo 10/1/15, 11:04 PM And City Manager Lichtig spoke briefly at a city council meeting Tuesday night after several members of the community spoke in support of Chief Gesell. (The chief's wife also attended the meeting but did not speak.) There are different perspectives and I appreciate the fact we have the opportunity to express them. From my perspective, all personnel items are complex, and they are sensitive and I am absolutely committed to dealing with this situation with as much dignity and respect I can offer to everybody involved. http://www.ksby.comlatoryl29116245/san-luis-obispo-police-chief-comments-on-his-situation Page 6 of 6 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 823 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KASEY A. CASTILLO, SBN #236690 NICOLE A. NALEWAY, SBN #300701 GASPARD CASTILLO HARPER, APC 3333 Concours St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Kasey@GCHattorneys.com Attorneys for Appellant KEVIN WADDELL RECE JUL 0 2115 SLO CITY Air'O NEY BEFORE HEARING OFFICER CHRISTOPHER CAMERON IN RE THE MATTER OF THE APPEAL OF TERMINATION OF OFFICER KEVIN WADDELL FROM THE SAN LUIS OBISPO POLICE DEPARTMENT APPELLANT'S NOTICE OF MOTION; MOTION FOR THE DISCOVERY AND DISCLOSURE OF PEACE OFFICER PERSONNEL FILE (PITCHESS MOTION) OF LIEUTENANT BILL PROLL; DECLARATION OF NICOLE A. NALEWAY IN SUPPORT THEREIN Date to Be Heard: July 23, 2015 TO THE HEARING OFFICER AND OPPOSING COUNSEL: PLEASE TAKE NOTICE that on July 23, 2015 at 879 Morro Street, San Luis Obispo, CA 93401, at 9:00 a.m., Appellant KEVIN WADDELL will move that the Hearing Officer Christopher Cameron (hereinafter referred to as "the Hearing Officer") order the above -noticed law enforcement agency to make available for examination, copying, and for the hearing on this motion the materials described below regarding San Luis Obispo Police Lieutenant Bill Proll. 1. The officer's personnel files; 2. Internal Affairs Investigations or inquiries of the officer; 1 _ PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 824 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Any and all complaints (formal or informal) filed against the officer, both internally and externally; 4. Any complaint and/or investigation involving misleading or false statements in any official matter, malicious treatment of witnesses, improper use of law enforcement power, propensity & motivation to retaliate and/or fabricate. 5. Any and all documents related to copying, sealing and preserving all files subject to review or potentially subject to review so that a meaningful record for appellate review can be maintained. Dated: June 29, 2015 Respectfully submitted, GASPARD CASTILLO HARPER, APC NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL 2 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 825 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF FACTS Appellant filed an appeal in the above-named matter after the Respondent Police Department terminated him without just cause and where the penalty of termination was grossly excessive. Additionally, the proffered pretext for the termination of Appellant is based upon allegations regarding false statements to Sergeant Pfarr regarding arriving late, and conduct detrimental to the department by breaking or removing vehicle parts. The Department and the City relied substantially on the internal affairs investigation that was conducted by Lt. Proll and relied on his credibility determination of the witnesses in this case. Appellant is hereby respectfully moving the Hearing Officer for an order that the SAN LUIS OBISPO POLICE DEPARTMENT make available the following material listed below regarding Lieutenant Bill Proll: 1. The officer's personnel files; 2. Internal Affairs Investigations or inquiries of the officer; 3. Any and all complaints (formal or informal) filed against the officer, both internally and externally; 4. Any complaint and/or investigation involving misleading or false statements in any official matter, malicious treatment of witnesses, improper use of law enforcement power, propensity & motivation to retaliate and/or fabricate. 5. Any and all documents related to copying, sealing and preserving all files subject to review or potentially subject to review so that a meaningful record for appellate review can be maintained. These documents and files are reasonably believed to be in the custody of the San Luis Obispo Police Department. 3 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 826 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. ARGUMENT A. UNDER STATUTORY LAW. APPELLANT IS ENTITLED TO DISCLOSURE OF THE REQUESTED DOCUMENTS Discovery in administrative proceedings is determined on a case-by-case basis by analogy to criminal cases. Shively v. Stewart (1966) 65 Ca1.2d 475, 479. Discovery of a peace officer's personnel records and records maintained pursuant to Cal. Penal Code Sections 832.5 and 832.7, and the procedure set forth under Cal. Evid. Code Sections 1040 and 1043 is the exclusive method for obtaining those personnel records and the information contained in them. Davis v. City of Sacramento (1994) 24 Cal. AppAth 393, review denied. Cal. Evid. Code Sections 1043 and 1045 do not limit discovery of confidential information from police officer personnel files to the types of information mentioned in the statutes or to the facts embraced by Pitchess v. Superior Court (1974) 11 Cal.3d 531, because the government cannot invoke the privilege to withhold evidence relevant to an opposing party. Garden Grove Police Dept. v. Super. Ct. (2001) 89 Cal.AppAth 430, 433, review denied (citing People v. Memro (1985) 38 Cal.3d 658, 679, review denied, cert. denied (1996)). (Emphasis added.) For the same reason, Pitchess motions may also be used to discover information to impeach an officer's credibility. Garden Grove, 89 Cal.AppAth at 433 (citing People v. Hustead (1999) 74 Cal.AppAth 410, 417). As noted in Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, review denied, the language of Cal. Evid. Code Section 1045(a) is expansive; the section expressly permits discovery of information "pertaining to the manner in which [the officer] performed his duties, provided that such information is relevant to the subject matter involved in the pending litigation." Fletcher, 100 Cal.AppAth at 389 (emphasis added). Further, as the California Supreme Court recognized in People v. Memro (1985) 38 Cal. 3d 658, when the Legislature adopted Evidence Code Section 1043, et seq., it not only reaffirmed, but also expanded, the principles of Pitchess. Memro, supra, 38 Cal.3d at 680. In this case, the information the Appellant requests from the personnel file of Lieutenant Bill Proll is absolutely relevant because it relates to a number of matters at issue in this case. Not 4 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 827 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 only is Lieutenant Proll's credibility and reliability as a historian a matter of determination for this Hearing Officer, the statements made during that investigation are relevant, as is the level of discipline, when assessed alone, and by comparison to Officer Waddell. Due process, especially in a termination case where allegations amounting to dishonesty are at the forefront, vitiates in favor of disclosure, and such disclosure should be construed expansively, in accordance with the I court's decisions in Fletcher. B. APPELLANT HAS DEMONSTRATED GOOD CAUSE FOR THE PRODUCTION OF THE PERSONNEL RECORDS FOR LIEUTENANT BILL PROLL 1. The Sole Requirement For Such Good Cause Is A Declaration Based Upon Information And Belief. Cal. Evid. Code Section 1043(b)(3) requires good cause for the production of records. Good cause" is defined as that "statement of the facts which supports relevancy to the subject matter of the lawsuit," or that which is "reasonably calculated to lead to admissible evidence." Materiality is properly shown if the information sought will facilitate the ascertainment of the facts and a fair trial. Haggerty v. Superior Court, (2004) 117 Cal. AppAth 1079, 1085. Further, relevance to the subject matter is to be broadly construed and is not limited to relevance to the narrow issues of the case. Greyhound Corporation v. Superior Court, (1961) 56 C.2d 355, 378, 390. The good cause standard is set forth in City of Santa Cruz v. Municipal Court, (1989) 49 Cal. 3d 74, and specifies that the declaration in support of the motion requesting a peace officer's personnel records must provide a "specific factual scenario" establishing a "plausible factual foundation" for allegations, and set forth the materiality of the discovery sought to the subject matter involved in the pending litigation. City of Santa Cruz, supra, 49 Cal.3d at 85-86. The court in City of Santa Cruz concluded that the defendant had made a showing of good cause for discovery of peace officer records based upon defense counsel's motion and his declaration. In said motion, defense counsel moved for discovery of complaints regarding the E PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 828 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arresting officers' use of excessive force in effecting arrests against others. Santa Cruz, supra, 1149 Cal. 3d at 80-81. In this case, Lt. Proll's personnel records, internal affairs investigation records and any complaints filed against him, especially for misrepresentation or false statements are clearly relevant and is evidence of the abuse of discretion by the San Luis Obispo Police Department in the determination of Appellant's discipline. Additionally, the factual scenario as delineated in the Declaration of Nicole A. Naleway is hereby incorporated via reference. Thus, Appellant has rnet his requirement to demonstrate good cause, relevance and materiality for the Hearing Officer to review and disclose the documents sought. C. THE CITY MUST PRODUCE A BROAD SCOPE OF FILE The City is obligated to produce all records that are "potentially relevant" material. When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring the trial court all "potentially" relevant documents to permit the trial court to examine the for itself. Santa Cruz, supra, 49 Cal.3d at 84, 260 Cal.Rptr. 520, 776 P.2d 222. (Emphasis added.) In this case, the requested documents are well within the scope of production of Pitchess and relevant as aforementioned. Appellant relies upon Fletcher v. Superior Court (2002) 100 Cal.AppAth 836 in requesting all files responsive to the Pitchess request in the possession or accessible to the City. The original source of the files is irrelevant. The contents of the files are the standard of materiality. This particularly is important as governmental agencies and entities share and form joint task forces. Any narrow definition of files would subvert the principles underlying Pitchess motions. Appellant also request that the Department disclose to Appellant the fact that no files exist, if this is the case, in addition to a statement that no requested files exist. 6 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 829 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. DISCOVERY OF THE PERSONNEL FILES SHOULD EXTEND BEYOND THE FIVE-YEAR RULE Appellant requests information beyond the five-year period which relates to bias, impeachment, propensity & motivation to fabricate. In Brady v. Maryland (1963) 373 U.S. 83, the Supreme Court recognized that: T]he prosecution must disclose to defense any evidence that is "favorable to the accused" and is "material" on the issue of either guilt or punishment. Failure to do so violates the accused's constitutional right to due process.... Brady, 373 U.S. at 86-87. The five-year rule set forth in Evidence Code Section 1045, subsection (b)(1) is not an absolute bar to disclosure. City of Los Angeles v. Superior Court (Brandon) (2002) 29 CalAth 1, 13. "Unlike Brady, California's Pitchess discovery scheme entitles a defendant to information that will `facilitate the ascertainment of the facts' at trial, that is, `all information pertinent to the defense."' Id at 14. As such, under both the Brady & Pitchess decisions, documents more than five years old are relevant to show the witness' credibility. Appellant seeks the personnel file of Lt. Proll for his entire career for purposes of impeachment. E. ADMINISTRATIVE HEARING BODY DOES HAVE THE AUTHORITY TO RULE ON A PITCHESS MOTION An administrative body, such as the selected Hearing Officer, does have the authority to rule on a Pitchess motion, and to conduct the in camera inspection of peace officer personnel records, as required by California Evidence Code Section 1043. In Riverside County Sheriff's Department v. Stiglitz (Drinkwater) (2014) 60 CalAth 624, the Supreme Court recognized that an administrative hearing body (i.e., arbitrator, hearing officer, or Civil Service Commission) could rule on a motion for the production of peace officer personnel records. The court based its holding on the language of Cal. Evid. Code Section 1043 which permits a Pitchess Motion to be filed "with the appropriate court or administrative body." 7 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 830 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 WE Thus, during administrative appeals, an administrative officer may rule on a Pitchess motion where information contained in the peace officer personnel records is relevant to an issue raised in the officer's defense. Appellant requests that the Hearing Officer grant the Pitchess motion, where Appellant is seeking the listed information on file for San Luis Obispo Police Lieutenant Bill Proll. III. CONCLUSION Appellant has made a showing beyond that required for an in -camera review. Appellant respectfully requests a review of all potentially relevant files and the copying and sealing of all files to preserve a record. In case no disciplinary records are found, Appellant respectfully requests that the Department duly notes that fact. Dated: June 29, 2015 Respectfully submitted, GASPARD CASTELLO HARPER, APC V119 fes—" NICOLE A. NAL WAY Attorneys for Appellant KEVIN WADDELL 8 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 831 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF NICOLE A. NALEWAY IN SUPPORT OF APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER'S PERSONNEL RECORDS PITCHESSBRADY- EVIDENCE CODE $1042): I, Nicole A. Naleway, declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and am one of the attorneys of record for the Appellant herein. The following is within my personal knowledge and I could and would testify thereto if called as a witness. 2. The appellant is asking for discovery detailed in the foregoing motion incorporated herein by reference]. 3. Kevin Waddell was terminated for allegations of false statements or giving false information to a Department Supervisor and for failure to report for duty in a punctual manner. 4. Additionally, Kevin Waddell was terminated for allegations of conduct detrimental to the Department by breaking or removing a vehicle part, in violation of California Vehicle Code 10852. 5. The allegations are based on information that was given to the San Luis Police Department by Lieutenant Bill Proll. 6. All the materials requested herein are directly relevant to the credibility determinations necessary to determine this case, as well as the multiple affirmative defenses to be presented by the Appellant throughout the course of the Hearing. 7. Additionally, upon information and belief, the information requested may lead to the discovery of other evidence which would assist us with the preparation and ! presentation of said appeal of termination. 8. I have no other source for obtaining the requested information and believe the information requested is readily available to the San Luis Obispo Police Department. Furthermore, there will be no unreasonable or time consuming searches to retrieve the documentation since Respondent City has possession of such material requested. 9 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 832 1 2 3 4 5 6 7 8 9 10 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iio I do not have access to any of the San Luis Obispo Police Department internal investigation files. I do not have any access to investigations or discipline made by the Department without the process and assistance of the Hearing Officer. I declare under penalty of perjury that the above is true and correct. Executed this 29th day of June, 2015, at Ontario, California. Nicole A. Naleway Attorney for Appellant, Kevin Waddell 10 _ PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 833 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 3333 Concours St., Bldg. 4, Ste. 4100, Ontario, CA 91764. On June 29, 2015, I served the following document described as APPELLANT'S NOTICE OF MOTION; MOTION FOR THE DISCOVERY AND DISCLOSURE OF PEACE OFFICER PERSONNEL FILE (PITC"H'ESS MOTION) OF LIEUTENANT BILL PROLL; DECLARATION OF NICOLE A. NALEWAY IN SUPPORT THEREIN on the interested parties in this action by e-mail and a true and correct copy of the document aforementioned each of recipients listed below: Served via U.S mail and e-mail) Lieutenant Jeff Smith San Luis Obispo Police Department 1042 Walnut Street San Luis Obispo, CA 93401 jsmith@slocfty.org Hearing Officer Christopher Cameron Arbitrator and Civil Service Hearing Officer c/o Southwestern Law School 3050 Wilshire Boulevard Los Angeles, CA 90010 ccameron@swlaw.edu Greg Palmer, Counsel for San Luis Obispo Police Department 3777 North Harbor Boulevard Fullerton, CA 92835 City Attorney Christine Dietrick 990 Palm Street, Room 10 San Luis Obispo, CA 93401 cdietrick@slocity.org X] I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service. I know that the correspondence was deposited with the United States Postal Service on the same day this declaration was executed in the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States mail at Ontario, California. By Personal Service, I caused such envelope to be delivered by hand to the above addressee(s). By Facsimile machine, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) X] By Electronic Mail, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) By Overnight Courier, I caused the above referenced document(s) to be delivered To an overnight courier (UPS) for delivery to the above addressee(s). X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 29, 2015 at Ontario, California. PROOF OF SERVICE -1 Lori Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 834 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KASEY A. CASTILLO, SBN #236690 NICOLE A. NALEWAY, SBN #300701 GASPARD CASTILLO HARPER, APC 3333 Concours St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Kasey@GCHattomeys.com Attorneys for Appellant KEVIN WADDELL FR_E CIETVED 0 6 2015 SLO CITY ATTORNEY BEFORE HEARING OFFICER CHRISTOPHER CAMERON IN RE THE MATTER OF THE APPEAL OF TERMINATION OF OFFICER KEVIN WADDELL FROM THE SAN LUIS OBISPO POLICE DEPARTMENT APPELLANT'S NOTICE OF MOTION; MOTION FOR THE DISCOVERY AND DISCLOSURE OF PEACE OFFICER PERSONNEL FILE (PITCHESS MOTION) OF LT. JEFF SMITH; DECLARATION OF NICOLE A. NALEWAY IN SUPPORT THEREIN Date to Be Heard: July 23, 2015 TO THE HEARING OFFICER AND OPPOSING COUNSEL: PLEASE TAKE NOTICE that on July 23, 2015 at 879 Morro Street, San Luis Obispo, CA 93401, at 9:00 a.m., Appellant KEVIN WADDELL will move that the Hearing Officer Christopher Cameron (hereinafter referred to as "the Hearing Officer") order the above -noticed law enforcement agency to make available for examination, copying, and for the hearing on this motion the materials described below regarding San Luis Obispo Police Lt. Jeff Smith: 1. Any and all documentation, including, but not limited to: any internal investigation, or inquiry, into Lt. Jeff Smith's failure to supervise, or PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 835 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allegations thereof, Officer Kevin Waddell, in any capacity, through and including the time period of 2013-2014; 2. Any and all discipline administered to Smith stemming from any allegations of failure to supervise Appellant Waddell during the time period of 2013-2014; 3. Any and all evaluations of Smith during the time period of 2013-2014 that specifically reference counseling documenting the failure to supervise Officer Kevin Waddell; 4. Any and all documentation related to the copying, sealing and preserving of all files subject to review or potentially subject to review so that a meaningful record for appellate review can be maintained. Dated: June 29, 2015 Respectfully submitted, GASPARD CASTELLO HARPER, APC NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL 4 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 836 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF FACTS Appellant filed an appeal in the above-named matter after the Respondent Police Department terminated him without just cause and where the penalty of termination was grossly excessive. Additionally, the proffered pretext for the termination of Appellant is based upon allegations regarding false statements to Lt. Smith regarding permission to be late on a specific date vs. prior approval from Lt. Smith re: being late occasionally and thereafter flexing. It is our belief that Lt. Smith was disciplined and/or remediated after the Appellant was investigated for this "failure to supervise" Officer Waddell. Appellant is hereby respectfully moving the Hearing Officer for an order that the SAN LUIS OBISPO POLICE DEPARTMENT make available the following material listed below regarding Lt. Jeff Smith: 1. Any and all documents related to any investigation, and/or inquiry, related to Lt. Jeff Smith, and allegations regarding the failure to supervise Officer Kevin Waddell; 2. Any and all discipline relating to any failure to supervise Appellant; 3. Any and all evaluations of Lt. Smith mentioning or referencing the failure to supervise Officer Kevin Waddell. 4. Any and all documents related to copying, sealing and preserving all files subject to review or potentially subject to review so that a meaningful record for appellate review can be maintained. These documents and files are reasonably believed to be in the custody of the San Luis Obispo Police Department. 3 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 837 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. ARGUMENT A. UNDER STATUTORY LAW, APPELLANT IS ENTITLED TO DISCLOSURE OF THE REQUESTED DOCUMENTS Discovery in administrative proceedings is determined on a case-by-case basis by analogy to criminal cases. Shively v. Stewart (1966) 65 Cal.2d 475, 479. Discovery of a peace officer's personnel records and records maintained pursuant to Cal. Penal Code Sections 832.5 and 832.7, and the procedure set forth under Cal. Evid. Code Sections 1040 and 1043 is the exclusive method for obtaining those personnel records and the information contained in them. Davis v. City of Sacramento (1994) 24 Cal. AppAth 393, review denied. Cal. Evid. Code Sections 1043 and 1045 do not limit discovery of confidential information from police officer personnel files to the types of information mentioned in the statutes or to the facts embraced by Pitchess v. Superior Court (1974) 11 Cal.3d 531, because the government cannot invoke the privilege to withhold evidence relevant to an opposing party. Garden Grove Police Dept. v. Super. Ct. (2001) 89 Cal.AppAth 430, 433, review denied (citing People v. Memro (1985) 38 Cal.3d 658, 679, review denied, cert. denied (1996)). (Emphasis added.) For the same reason, Pitchess motions may also be used to discover information to impeach an officer's credibility. Garden Grove, 89 Cal.AppAth at 433 (citing People v. Hustead (1999) 74 Cal.AppAth 410, 417). As noted in Fletcher v. Superior Court (2002) 100 Cal.AppAth 386, review denied, the language of Cal. Evid. Code Section 1045(a) is expansive; the section expressly permits discovery of information "pertaining to the manner in which [the officer] performed his duties, provided that such information is relevant to the subject matter involved in the pending litigation." Fletcher, 100 Cal.AppAth at 389 (emphasis added). Further, as the California Supreme Court recognized in People v. Memro (1985) 38 Cal. 3d 658, when the Legislature adopted Evidence Code Section 1043, et seq., it not only reaffirmed, but also expanded, the principles of Pitchess. Memro, supra, 38 Cal.3d at 680. In this case, the information the Appellant requests from the personnel file of Lt. Jeff Smith is absolutely relevant because it relates to a number of matters at issue in this case. Not 4 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 838 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 only is Lt. Smith's credibility and reliability as a historian a matter of determination for this Hearing Officer, the statements made during that investigation are relevant, as is the level of discipline, when assessed alone, and by comparison to Officer Waddell, particularly after some of the sworn testimony of Sgt. Chad Pfarr, the testimony of Lt. Bledsoe, and the documented statements of Lt. Smith and Sgt. Pfarr in the instant hearing. Due process, especially in a termination case where allegations amounting to dishonesty are at the forefront, vitiates in favor of disclosure, and such disclosure should be construed expansively, in accordance with the court's decisions in Fletcher. B. APPELLANT HAS DEMONSTRATED GOOD CAUSE FOR THE PRODUCTION OF THE PERSONNEL RECORDS FOR LT. JEFF SMITH 1. The Sole Requirement For Such Good Cause Is A Declaration Based Upon Information And Belief. Cal. Evid. Code Section 1043(b)(3) requires good cause for the production of records. Good cause" is defined as that "statement of the facts which supports relevancy to the subject matter of the lawsuit," or that which is "reasonably calculated to lead to admissible evidence." Materiality is properly shown if the information sought will facilitate the ascertainment of the facts and a fair trial. Haggerty v. Superior Court, (2004) 117 Cal. AppAth 1079, 1085. Further, relevance to the subject matter is to be broadly construed and is not limited to relevance to the narrow issues of the case. Greyhound Corporation v. Superior Court, (1961) 56 C.2d 355, 378, 390. The good cause standard is set forth in City of Santa Cruz v. Municipal Court, (1989) 49 Cal. 3d 74, and specifies that the declaration in support of the motion requesting a peace officer's personnel records must provide a "specific factual scenario" establishing a "plausible factual foundation" for allegations, and set forth the materiality of the discovery sought to the subject matter involved in the pending litigation. City of Santa Cruz, supra, 49 Cal.3d at 85-86. The court in City of Santa Cruz concluded that the defendant had made a showing of good cause for discovery of peace officer records based upon defense counsel's motion and his declaration. In said motion, defense counsel moved for discovery of complaints regarding the 5 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 839 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arresting officers' use of excessive force in effecting arrests against others. Santa Cruz, supra, 1149 Cal. 3d at 80-81. In this case, Lt. Smith's disciplinary records, any internal affairs investigation, or performance evaluations mentioning his failure to supervise Officer Waddell would be clearly relevant. Additionally, the factual scenario as delineated in the Declaration of Nicole A. Nalewa5 is hereby incorporated via reference. Thus, Appellant has met his requirement to demonstrate good cause, relevance and materiality for the Hearing Officer to review and disclose the documents sought. C. THE CITY MUST PRODUCE A BROAD SCOPE OF FILE The City is obligated to produce all records that are "potentially relevant" material. When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring the trial court all "potentially" relevant documents to permit the trial court to examine the for itself. Santa Cruz, supra. 49 Cal.3d at 84, 260 Cal.Rptr. 520, 776 P.2d 222. (Emphasis added.) In this case, the requested documents are well within the scope of production of Pitchess and relevant as aforementioned. Appellant relies upon Fletcher v. Superior Court (2002) 100 Cal.App.4th 836 in requesting all files responsive to the Pitchess request in the possession or accessible to the City. The original source of the files is irrelevant. The contents of the files are the standard of materiality. This particularly is important as governmental agencies and entities share and form joint task forces. Any narrow definition of files would subvert the principles underlying Pitchess motions. Appellant also request that the Department disclose to Appellant the fact that no files exist, if this is the case, in addition to a statement that no requested files exist. D. ADMINISTRATIVE HEARING BODY DOES HAVE THE AUTHORITY TO RULE ON A PITCHESS MOTION An administrative body, such as the selected Hearing Officer, does have the authority to rule on a Pitchess motion, and to conduct the in camera inspection of peace officer personnel records, as required by California Evidence Code Section 1043. In Riverside County Sheriff's 6 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 840 2 3 4 5 6 7 8 a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Department v. Stiglitz (Drinkwater) (2014) 60 CalAth 624, the Supreme Court recognized that rat administrative hearing body (i.e., arbitrator, hearing officer, or Civil Service Commission) could rule on a motion for the production of peace officer personnel records. The court based its holding on the language of Cal. Evid. Code Section 1043 which permits a Pitchess Motion to be filed "with the appropriate court or administrative body." Thus, during administrative appeals, an administrative officer may rule on a Pitchess motion where information contained in the peace officer personnel records is relevant to an issue raised in the officer's defense. Appellant requests that the Hearing Officer grant the Pitchess motion, where Appellant is seeking the listed information on file for San Luis Obispo Police Lt. Jeff Smith. III. CONCLUSION Appellant has made a showing beyond that required for an in -camera review. Appellant respectfully requests a review of all potentially relevant files and the copying and sealing of all files to preserve a record. In case no disciplinary records are found, Appellant respectfully requests that the Department duly notes that fact. Dated: June 29, 2015 Respectfully submitted, GASPARD CASTILLO HARPER, APC NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL 7 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 841 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF NICOLE A. NALEWAY IN SUPPORT OF APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER'S PERSONNEL RECORDS PITCHESSBRADY- EVIDENCE CODE §1042): I, Nicole A. Naleway, declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and am one of the attorneys of record for the Appellant herein. The following is within my personal knowledge and I could and would testify thereto if called as a witness. 2. The appellant is asking for discovery detailed in the foregoing motion incorporated herein by reference]. 3. Kevin Waddell was terminated for allegations of false statements or giving false information to a Department Supervisor and for failure to report for duty in a punctual manner. 4. Additionally, Kevin Waddell was terminated for allegations of conduct detrimental to the Department by breaking or removing a vehicle part, in violation of California Vehicle Code 10852. 5. The allegations are based on information that was given to the San Luis Police Department, to include by Lt. Jeff Smith. 6. All the materials requested herein are directly relevant to the credibility determinations necessary to determine this case, as well as the multiple affirmative defenses to be presented by the Appellant throughout the course of the Hearing. 7. Additionally, upon information and belief, the information requested may lead to the discovery of other evidence which would assist us with the preparation and presentation of said appeal of termination. 8. I have no other source for obtaining the requested information and believe the information requested is readily available to the San Luis Obispo Police Department. Furthermore, there will be no unreasonable or time consuming searches to retrieve the documentation since Respondent City has possession of such material requested. 8 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 842 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 uut I do not have access to any of the San Luis Obispo Police Department internal investigation files. I do not have any access to investigations or discipline made by the Department without the process and assistance of the Hearing Officer. I declare under penalty of perjury that the above is true and correct. Executed this 29th day of June, 2015, at Ontario, California. Nicole A. Naleway Attorney for Appellant, Kevin Waddell 9 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 843 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 3333 Concours St., Bldg. 4, Ste. 4100, Ontario, CA 91764. On June 29, 2015, I served the following document described as APPELLANT'S NOTICE OF MOTION; MOTION FOR THE DISCOVERY AND DISCLOSURE OF PEACE OFFICER PERSONNEL FILE (PITCHESS MOTION) OF LIEUTENANT JEFF SMITH; DECLARATION OF NICOLE A. NALEWAY IN SUPPORT THEREIN on the interested parties in this action by e-mail and a true and correct copy of the document Served via U.S mail and e-mail) Lieutenant Jeff Smith San Luis Obispo Police Department 1042 Walnut Street San Luis Obispo, CA 93401 ismith@slocity.org Hearing Officer Christopher Cameron Arbitrator and Civil Service Hearing Officer c/o Southwestern Law School 3050 Wilshire Boulevard Los Angeles, CA 90010 Greg Palmer, Counsel for San Luis Obispo Police Department 3777 North Harbor Boulevard Fullerton, CA 92835 gpp@jones-mayer.com City Attorney Christine Dietrick 990 Palm Street, Room 10 San Luis Obispo, CA 93401 cdietrick@slocity.org X] I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service. I know that the correspondence was deposited with the United States Postal Service on the same day this declaration was executed in the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States mail at Ontario, California. By Personal Service, I caused such envelope to be delivered by hand to the above addressee(s). By Facsimile machine, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) X] By Electronic Mail, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) By Overnight Courier, I caused the above referenced document(s) to be delivered To an overnight courier (UPS) for delivery to the above addressee(s). X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 29, 2015 at Ontario, California. - PROOF OF SERVICE A Lori Pad i'11a Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 844 PA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KASEY A. CASTILLO, SBN #236690 NICOLE A. NALEWAY, SBN #300701 GASPARD CASTILLO HARPER, APC 3333 Concours St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Kasey@GCHattorneys.com _ Attorneys for Appellant KEVIN WADDELL RECEIVED JULU6 Oi5 ATTORNEY BEFORE HEARING OFFICER CHRISTOPHER CAMERON IN RE THE MATTER OF THE APPEAL OF TERMINATION OF OFFICER KEVIN WADDELL FROM THE SAN LUIS OBISPO POLICE DEPARTMENT APPELLANT'S NOTICE OF MOTION; MOTION FOR THE DISCOVERY AND DISCLOSURE OF PEACE OFFICER PERSONNEL FILE (PITCHESS MOTION) OF LIEUTENANT JOHN BLEDSOE; DECLARATION OF NICOLE A. NALEWAY IN SUPPORT THEREIN Date to Be Heard: July 23, 2015 TO THE HEARING OFFICER AND OPPOSING COUNSEL: PLEASE TAKE NOTICE that on July 23, 2015 at 879 Morro Street, San Luis Obispo, CA 93401, at 9:00 a.m., Appellant KEVIN WADDELL will move that the Hearing Officer Christopher Cameron (hereinafter referred to as "the Hearing Officer") order the above -noticed law enforcement agency to make available for examination, copying, and for the hearing on this motion the materials described below regarding San Luis Obispo Police Lieutenant John Bledsoe. I PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 845 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. The officer's personnel files; 2. Internal Affairs Investigations or inquiries of the officer; 3. Any and all complaints (formal or informal) filed against the officer, both internally and externally; 4. Any complaint and/or investigation involving misleading or false statements in any official matter, malicious treatment of witnesses, improper use of law enforcement power, propensity & motivation to retaliate and/or fabricate. 5. Any and all documents related to copying, sealing and preserving all files subject to review or potentially subject to review so that a meaningful record for appellate review can be maintained. Dated: June 29, 2015 Respectfully submitted, GASPARD CASTILLO HARPER, APC NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL 2 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 846 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF FACTS Appellant filed an appeal in the above-named matter after the Respondent Police Department terminated him without just cause and where the penalty of termination was grossly excessive. Additionally, the proffered pretext for the termination of Appellant is based upon allegations regarding false statements to Sergeant Pfarr regarding arriving late, and conduct detrimental to the department by breaking or removing vehicle parts. The Department and the City relied substantially on the internal affairs investigation that was conducted by Lt. Bledsoe and relied on his credibility determination of the witnesses in this case. Appellant is hereby respectfully moving the Hearing Officer for an order that the SAN LUIS OBISPO POLICE DEPARTMENT make available the following material listed below regarding Lieutenant John Bledsoe: 1. The officer's personnel files; 2. Internal Affairs Investigations or inquiries of the officer; 3. Any and all complaints (formal or informal) filed against the officer, both internally and externally; 4. Any complaint and/or investigation involving misleading or false statements in any official matter, malicious treatment of witnesses, improper use of law enforcement power, propensity & motivation to retaliate and/or fabricate. 5. Any and all documents related to copying, sealing and preserving all files subject to review or potentially subject to review so that a meaningful record for appellate review can be maintained. These documents and files are reasonably believed to be in the custody of the San Luis Obispo Police Department. 3 _ PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 847 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. ARGUMENT A. UNDER STATUTORY LAW, APPELLANT IS ENTITLED TO DISCLOSURE OF THE REQUESTED DOCUMENTS Discovery in administrative proceedings is determined on a case-by-case basis by analogy to criminal cases. Shively v. Stewart (1966) 65 Cal.2d 475, 479. Discovery of a peace officer's personnel records and records maintained pursuant to Cal. Penal Code Sections 832.5 and 832.7, and the procedure set forth under Cal. Evid. Code Sections 1040 and 1043 is the exclusive method for obtaining those personnel records and the information contained in them. Davis v. City of Sacramento (1994) 24 Cal. AppAth 393, review denied. Cal. Evid. Code Sections 1043 and 1045 do not limit discovery of confidential information from police officer personnel files to the types of information mentioned in the statutes or to the facts embraced by Pitchess v. Superior Court (1974) 11 Cal.3d 531, because the government cannot invoke the privilege to withhold evidence relevant to an opposing party. Garden Grove Police Dept. v. Super. Ct. (2001) 89 Cal.AppAth 430, 433, review denied (citing People v. Memro (1985) 38 Cal.3d 658, 679, review denied, cert. denied (1996)). (Emphasis added.) For the same reason, Pitchess motions may also be used to discover information to impeach an officer's credibility. Garden Grove, 89 Cal.AppAth at 433 (citing People v. Hustead (1999) 74 Cal.AppAth 410, 417). As noted in Fletcher v. Superior Court (2002) 100 Cal.AppAth 386, review denied, the language of Cal. Evid. Code Section 1045(a) is expansive; the section expressly permits discovery of information "pertaining to the manner in which [the officer] performed his duties, provided that such information is relevant to the subject matter involved in the pending litigation." Fletcher, 100 Cal.AppAth at 389 (emphasis added). Further, as the California Supreme Court recognized in People v. Memro (1985) 38 Cal. 3d 658, when the Legislature adopted Evidence Code Section 1043, et seq., it not only reaffirmed, but also expanded, the principles of Pitchess. Memro, supra, 38 Cal.3d at 680. In this case, the information the Appellant requests from the personnel file of Lieutenant John Bledsoe is absolutely relevant because it relates to a number of matters at issue in this case. 4 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 848 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Not only is Lieutenant Bledsoe's credibility and reliability as a historian a matter of determination for this Hearing Officer, the statements made during that investigation are relevant, as is the level of discipline, when assessed alone, and by comparison to Officer Waddell. Due process, especially in a termination case where allegations amounting to dishonesty are at the forefront, vitiates in favor of disclosure, and such disclosure should be construed expansively, in accordance with the court's decisions in Fletcher. B. APPELLANT HAS DEMONSTRATED GOOD CAUSE FOR THE PRODUCTION OF THE PERSONNEL RECORDS FOR LIEUTENANT JOHN BLEDSOE 1. The Sole Requirement For Such Good Cause Is A Declaration Based Upon Information And Belief. Cal. Evid. Code Section 1043(b)(3) requires good cause for the production of records. Good cause" is defined as that "statement of the facts which supports relevancy to the subject matter of the lawsuit," or that which is "reasonably calculated to lead to admissible evidence." Materiality is properly shown if the information sought will facilitate the ascertainment of the facts and a fair trial. Haggerty v. Superior Court, (2004) 117 Cal. AppAth 1079, 1085. Further, relevance to the subject matter is to be broadly construed and is not limited to relevance to the narrow issues of the case. Greyhound Corporation v. Superior Court, (1961) 56 C.2d 355, 378, 390. The good cause standard is set forth in City of Santa Cruz v. Municipal Court, (1989) 49 Cal. 3d 74, and specifies that the declaration in support of the motion requesting a peace officer's personnel records must provide a "specific factual scenario" establishing a "plausible factual foundation" for allegations, and set forth the materiality of the discovery sought to the subject matter involved in the pending litigation. City of Santa Cruz, supra, 49 Cal.3d at 85- 86. The court in City of Santa Cruz concluded that the defendant had made a showing of good cause for discovery of peace officer records based upon defense counsel's motion and his declaration. In said motion, defense counsel moved for discovery of complaints regarding the 5 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 849 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arresting officers' use of excessive force in effecting arrests against others. Santa Cruz, supra, 1149 Cal. 3d at 80-81. In this case, Lt. Bledsoe's personnel records, internal affairs investigation records and any complaints filed against him, especially for misrepresentation or false statements are clearly relevant and is evidence of the abuse of discretion by the San Luis Obispo Police Department in the determination of Appellant's discipline. Additionally, the factual scenario as delineated in c Declaration of Nicole A. Naleway is hereby incorporated via reference. Thus, Appellant has met his requirement to demonstrate good cause, relevance and materiality for the Hearing Officer to review and disclose the documents sought. C. THE CITY MUST PRODUCE A BROAD SCOPE OF FILE The City is obligated to produce all records that are "potentially relevant" material. When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring the trial court all "potentially" relevant documents to permit the trial court to examine the for itself. Santa Cruz, supra, 49 Ca1.3d at 84, 260 Cal.Rptr. 520, 776 P.2d 222. (Emphasis added.) In this case, the requested documents are well within the scope of production of Pitchess and relevant as aforementioned. Appellant relies upon Fletcher v. Superior Court (2002) 100 Cal.AppAth 836 in requesting all files responsive to the Pitchess request in the possession or accessible to the City. The original source of the files is irrelevant. The contents of the files are the standard of materiality. This particularly is important as governmental agencies and entities share and form joint task forces. Any narrow definition of files would subvert the principles underlying Pitchess motions. Appellant also request that the Department disclose to Appellant the fact that no files exist, if this is the case, in addition to a statement that no requested files exist. 6 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 850 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. DISCOVERY OF THE PERSONNEL FILES SHOULD EXTEND BEYOND THE FIVE-YEAR RULE Appellant requests information beyond the five-year period which relates to bias, impeachment, propensity & motivation to fabricate. In Brady v. Maryland (1963) 373 U.S. 83, the Supreme Court recognized that: T]he prosecution must disclose to defense any evidence that is "favorable to the accused" and is "material" on the issue of either guilt or punishment. Failure to do so violates the accused's constitutional right to due process.... Brady, 373 U.S. at 86-87. The five-year rule set forth in Evidence Code Section 1045, subsection (b)(1) is not an absolute bar to disclosure. City of Los Angeles v. Superior Court (Brandon) (2002) 29 CalAth 1, 13. "Unlike Brady, California's Pitchess discovery scheme entitles a defendant to information that will `facilitate the ascertainment of the facts' at trial, that is, `all information pertinent to the defense."' Id at 14. As such, under both the Brady & Pitchess decisions, documents more than five years old are relevant to show the witness' credibility. Appellant seeks the personnel file of Lt. Bledsoe for his entire career for purposes of impeachment. E. ADMINISTRATIVE HEARING BODY DOES HAVE THE AUTHORITY TO RULE ON A PITCHESS MOTION An administrative body, such as the selected Hearing Officer, does have the authority to rule on a Pitchess motion, and to conduct the in camera inspection of peace officer personnel records, as required by California Evidence Code Section 1043. In Riverside County Sheriff's Department v. Stiglitz (Drinkwater) (2014) 60 CalAth 624, the Supreme Court recognized that ail administrative hearing body (i.e., arbitrator, hearing officer, or Civil Service Commission) could rule on a motion for the production of peace officer personnel records. The court based its holding on the language of Cal. Evid. Code Section 1043 which permits a Pitchess Motion to be filed "with the appropriate court or administrative body." 7 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 851 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thus, during administrative appeals, an administrative officer may rule on a Pitchess motion where information contained in the peace officer personnel records is relevant to an issue raised in the officer's defense. Appellant requests that the Hearing Officer grant the Pitchess motion, where Appellant is seeking the listed information on file for San Luis Obispo Police Lieutenant John Bledsoe. III. CONCLUSION Appellant has made a showing beyond that required for an in -camera review. Appellant respectfully requests a review of all potentially relevant files and the copying and sealing of all files to preserve a record. In case no disciplinary records are found, Appellant respectfully requests that the Department duly notes that fact. Dated: June 29, 2015 Respectfully submitted, GASPARD CASTILLO HARPER, APC NICOLE A. NAL .,WAY Attorneys for Appellant KEVIN WADDELL 8 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 852 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF NICOLE A. NALEWAY IN SUPPORT OF APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER'S PERSONNEL RECORDS PITCHESSBRADY- EVIDENCE CODE §1042): I, Nicole A. Naleway, declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and am one of the attorneys of record for the Appellant herein. The following is within my personal knowledge and I could and would testify thereto if called as a witness. 2. The appellant is asking for discovery detailed in the foregoing motion incorporated herein by reference]. 3. Kevin Waddell was terminated for allegations of false statements or giving false information to a Department Supervisor and for failure to report for duty in a punctual manner. 4. Additionally, Kevin Waddell was terminated for allegations of conduct detrimental to the Department by breaking or removing a vehicle part, in violation of California Vehicle Code 10852. 5. The allegations are based on information that was given to the San Luis Police Department by Lieutenant John Bledsoe. 6. All the materials requested herein are directly relevant to the credibility determinations necessary to determine this case, as well as the multiple affirmative defenses to be presented by the Appellant throughout the course of the Hearing. 7. Additionally, upon information and belief, the information requested may lead to the discovery of other evidence which would assist us with the preparation and presentation of said appeal of termination. 8. I have no other source for obtaining the requested information and believe the information requested is readily available to the San Luis Obispo Police Department. Furthermore, there will be no unreasonable or time consuming searches to retrieve the documentation since Respondent City has possession of such material requested. 9 _ PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 853 1 2 9A 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. I do not have access to any of the San Luis Obispo Police Department internal investigation files. I do not have any access to investigations or discipline made by the Department without the process and assistance of the Hearing Officer. I declare under penalty of perjury that the above is true and correct. Executed this 29th day of June, 2015, at Ontario, California. Nicolle A. Naleway Attorney for Appellant, Kevin Waddell 10 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 854 2 3 0 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. Mybusinessaddress is 3333 Concours St., Bldg. 4, Ste. 4100, Ontario, CA 91764. On June 29,2015, 1 served the following document described as APPELLANT'S NOTICE OF MOTION; MOTION FOR THE DISCOVERY AND DISCLOSURE OF PEACE OFFICER PERSONNEL FILE (PITCHESS MOTION) OF LIEUTENANT JOHN BLEDSOE; DECLARATION OF NICOLE A. NALEWAY IN SUPPORT THEREIN on the interested parties in this action by e-mail and a true and correct copy of the document aforementioned each of recipients listed below: Served via U.S mail and e-mail) Lieutenant Jeff Smith San Luis Obispo Police Department 1042 Walnut Street San Luis Obispo, CA 93401 jsmith@slocity.org Hearing Officer Christopher Cameron Arbitrator and Civil Service Hearing Officer c/o Southwestern Law School 3050 Wilshire Boulevard Los Angeles, CA 90010 Greg Palmer, Counsel for San Luis Obispo Police Department 3777 North Harbor Boulevard Fullerton, CA 92835 City Attorney Christine Dietrick 990 Palm Street, Room 10 San Luis Obispo, CA 93401 cdietrick@slocity.org X] I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service. I know that the correspondence was deposited with the United States Postal Service on the same day this declaration was executed in the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States mail at Ontario, California. By Personal Service, I caused such envelope to be delivered by hand to the above addressee(s). By Facsimile machine, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) X] By Electronic Mail, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) By Overnight Courier, I caused the above referenced document(s) to be delivered To an overnight courier (UPS) for delivery to the above addressee(s). X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 29, 2015 at Ontario, California. PROOF OF SERVICE -1 Lori Padilla Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 855 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JONES & MAYER Gregory P. Palmer, Esq., SBN No. 133647 3777 North Harbor Boulevard Fullerton, California 92835 714-446-1400 Telephone 714-446-1448 Facsimile RECEIVED gpp@jones-mayer.com Attorneys for Custodian of the Records J U L 0 9 2015 of the San Luis Obispo Police Department S O CTTY ATTORNEY BEFORE HEARING OFFICER CHRISTOPHER CAMERON IN RE THE MATTER OF THE APPEAL OF THE TERMINATION OF KEVIN WADDELL FROM THE SAN LUIS OBISPO POLICE DEPARTMENT CUSTODIAN OF THE RECORDS OF THE SAN LUIS OBISPO POLICE DEPARTMENT, Real Party in Interest No. ARB -14-0209 OPPOSITION OF CUSTODIAN OF THE RECORDS OF THE SAN LUIS OBISPO POLICE DEPARTMENT TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DATE: July 23, 2015 TIME: 9:00 a.m. TO: THE HEARING OFFICER, THE ABOVE MENTIONED APPELLANT AND HIS ATTORNEY: The following Memorandum of Points and Authorities is hereby submitted on behalf of the Custodian of the Records of the San Luis Obispo Police Department in Opposition to the motion to discover confidential police personnel records. OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 856 1 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO DISCOVER POLICE PERSONNEL RECORDS 2 3 INTRODUCTION 4 Appellant herein, Kevin Waddell, through his legal counsel has filed with the hearing 5 officer four separate Pitchess motions seeking access to the confidential personnel file 6 information of four different San Luis Obispo Police Department Peace Officers. Those officers 7 are Sergeant Chad Pfarr, Lieutenant Jeff Smith, Lieutenant John Bledsoe and Lieutenant Bill 8 Proll. Filing four separate motions, one as to each officer, was completely unnecessary. What 9 appellant should have done is file one separate Pitchess motion naming all four officers and then 10 discussed the good cause as to each in the declaration in support thereof. Notwithstanding that 11 fact, the San Luis Obispo Police Custodian will file just one opposition in which it will articulate 12 all the problems with the various motions, and there are many, in the interests of administrative 13 judicial economy. 14 I 15 UNLESS THERE IS FULL COMPLIANCE WITH EVIDENCE 16 CODE SECTION 1043 AND 1046, NO HEARING FOR DISCOVERY OF POLICE PERSONNEL RECORDS 17 SHALL BE HELD BY THE COURT. 18 Police personnel records are confidential. They may be obtained only by a discovery 19 motion under Evidence Code section 1043. (Penal Code sec. 832.7.) Strict compliance with 20 section 1043 is required in order to ensure that an officer has an opportunity to protect his right 21 to privacy. (See Willis v. Superior Court, 112 C.A.3d 277, 296-297; Evid. Code Sec. 1043(a).) 22 Therefore, "[n]o hearing upon a motion for discovery or disclosure shall be held without full 23 compliance with the notice provisions of [sec. 1043(a)]." (Evid. Code § 1043 is the exclusive 24 procedure.].) 25 Section 1043( a) requires 16 court days written notice of motion if service is made by 26 personal service. The notice period is measured from the time the agency is personally served. 27 If notice is made by mail, the period of notice is increased by five additional calendar days and 28 begins on the day of mailing. (C.C.P. § 1005(b) and 1004(a)( 6).) 1- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 857 I Here, these Pitchess motions were served in varying ways, none of which complies with 2 the statute. As to the motion seeking access to the personnel file of Sergeant Chad Pfarr, that 3 motion was served in the hearing room on Sergeant Pfarr himself, Greg Palmer, counsel to the 4 San Luis Obispo Police Department, the hearing officer and the city attorney. None of these 5 methods complied with the statute. The statute is clear that the motion must provide written 6 notice to the governmental agency which has custody and control of the records sought. (See 7 Evidence Code Section 1043(a)). That is pretty clear and unambiguous on its face. The agency 8 herein which has custody and control of the records sought is the San Luis Obispo Police 9 Department. It is not Sergeant Pfarr; it is not the City Attorney, it is not the hearing officer and 10 finally, it is not me, as counsel to the police department. I have never had the authority granted 11 to me to accept service of a Pitchess motion on behalf of the San Luis Obispo Police Department. 12 Looked at in this way one can readily tell that the San Luis Obispo Police Department ha-, 13 never been lawfully served with this motion. It, therefore, has no obligation to oppose it on its 14 merits. It will be present through me on July 23, 2015, in a special appearance, to argue that 15 jurisdiction on it has not been perfected as it relates to this motion, because it was never lawfully 16 served with the motion and the motion should be denied without prejudice. 17 As it relates to the Pitchess motions for Lieutenant Jeff Smith, Lieutenant John Bledsoe 18 and Lieutenant Bill Proll, the motions as to each of those officers was served in a manner 19 different from the motion targeting Sergeant Chad Pfarr, but was still not in compliance with the 20 statute. Even a cursory glance at the proof of service attached to each motion, one can fairly 21 quickly tell that each of the three motions was served by U. S. mail and email on June 29, 2015, 22 to the hearing officer, the city attorney, me and Lieutenant Jeff Smith. That's right, each of them 23 were served on Lieutenant Jeff Smith of the San Luis Obispo Police Department. Not only was 24 it highly improper to send all of these motions, targeting other officers personnel files, to a 25 witness in this case, it was likewise improper because Lieutenant Jeff Smith is not the agency 26 which has custody and control of the records sought. And he has no duty obligation to forward 27 these motions to someone else in the police department who does. Thus, again, the San Luis 28 Obispo Police Department has never actually been served with this motion and it will be present 2- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 858 I through me, on July 23, 2015, in a special appearance, to argue jurisdiction has not attached to it. 2 Add to that service by email is something not recognized unless it is specifically agreed 3 to by the parties. No such agreement exists on this case. 4 Moreover, even if by some stretch of the imagination, appellant could get around the 5 above fundamental problems in service, there is yet another problem with the service of the 6 motions as they relate to the three lieutenants. Ignoring the service by email because it is a 7 nullity, the service by U. S. mail, even if it was addressed to the agency itself as required by 8 statute, would still have been insufficient. The reason for that service by U. S. mail on June 29, 9 2015 for a hearing set for July 23, 2015 only provide 17 court days notice where the statute 10 requires 16 court days notice plus five additional calendar days for mailing. (Italics added) 11 Thus, either which way, these motions are not properly before the hearing officer for a 12 ruling and they all must be denied. The Custodian of the Records requested is not engaging in 13 gamesmanship by opposing these motions on simple procedural grounds. Instead, we are 14 attempting to require the appellant to comply with the strict statutory scheme set forth to obtain 15 these confidential and statutorily protected records. 16 These records belong to the officers themselves, as well as to the department. The 17 department is entitled and indeed required, to assert any and all procedural and substantive 18 grounds against disclosure that exists. Moreover, the California Attorney General in 1999 issued 19 an opinion in which it was explained that a Custodian may be committing a misdemeanor 20 criminal act if that Custodian does not require compliance with Evidence Code Section 1043 21 before releasing information from confidential police officers personnel files. The officers 22 expect nothing less. 23 We are not using frivolous procedural defects to unreasonably prevent the appellant from 24 obtaining any relevant evidence to his defense, we are simply requiring appellant to comply with 25 the rules established prior to obtaining that evidence, should it exist. 26 And to address the obvious claim which will be made by appellant once this opposition is 27 read by him, "This is an administrative case, thus, we do not have to comply with draconian and 28 burdensome procedural rules which may be present in civil cases". Well, you do if you are OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 859 1 trying to obtain confidential and privileged information and the contents of a peace officer's 2 personnel file are privileged and confidential and counsel for appellant should know that as they 3 represent individual officers. The rules of privilege in civil cases apply with the same rigidity in 4 administrative cases. Just because one of it ranks has a disciplinary action imposed upon him 5 does not mean that former officer can use the relaxed administrative rules attached to his hearing 6 to tromp on a privilege held be a former fellow officer. After all, the seminal case in this field, 7 Riverside County Sheriffs Department v Sti litz Drinkwater), infra, did not carve out any 8 special service rules for Pitchess motions in the administrative context. Therefore, the statute 9 must be completely satisfied in terms of service before the jurisdiction to hear and determine the 10 matter is tendered to the hearing officer. 11 We urge the hearing officer to deny appellant's motions. 12 H. 13 THE PITCHESS MOTION LACKS SUFFICIENT GOOD CAUSE INSOFAR AS IT REQUIRES A WHOLESALE IN -CAMERA 14 REVIEW OF FOUR POLICE OFFICERS PERSONNEL FILE. 15 Considerable confusion over what is required for a sufficient showing to justify an in - 16 camera review of confidential police personnel files was put to rest with the Supreme Court's 17 decision in City of Santa Cruz v. Municipal Court (Kennedys (1989) 49 Cal. 3d 74, 260 Cal. 18 Rptr. 520. In that case, the declaration of counsel for the person seeking the confidential 19 records, in addition to contending excessive force was used in the arrest, showed factually 20 how that excessive force occurred. The declaration said " ... officers... grabbed [ defendant] 21 by the hair and threw him down to the ground. One officer then stepped on [defendant's] 22 head, while the other twisted his arm behind his back." (City of Santa Cruz, supra, at p. 80). 23 The court first viewed that declaration and because it set forth a specific factual scenario 24 to support the assertion that excessive force occurred, the materiality to the claim of self defense 25 was shown. But then the court went further and viewed in conjunction with the declaration, the 26 police report of the incident. That report showed considerable force was used in the 27 effectuation of the arrest. Viewed together as they were, the materiality of the information 28 requested was plainly demonstrated. (Santa Cruz, supra, at p. 85- 87; also see People v. Memro 4_ OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 860 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 W 21 22 23 24 25 26 27 28 38 Cal. 3d 658, 214 Cal. Rptr. 832). The movant is required, as stated in City of Santa Cruz and Memro, supra, to inform the court, by using facts and not conclusions, what conduct of the officers constitutes excessive force. It is this that is necessary for a showing of good cause for the discovery. And as demonstrated by the Supreme Court's requirement that the court also review the arrest report prepared by the officer, it is manifest that courts should not just take the defense declaration as gospel and grant the discovery request. The requirement for the use of facts to justify a Pitchess motion request for discovery has been upheld in many cases. In People v. Navarro (1978) 84 Cal. App. 3d 355,146 Cal. Rptr. 672, the court held that "evidence may be. theoretically admissible under a particular section of the Evidence Code [1101] and yet not discoverable because not sufficiently relevant to the subject matter of the litigation." (Navarro, supra, at p. 359). Beyond mere admissibility, the plaintiff must show relevance and materiality to the subject matter of this litigation. See Evidence Code Section 1043(b)). In Navarro, the defendant sought records of false arrest and dishonesty. The request was supported by a declaration of defense counsel that stated they might contend Navarro had not voluntarily agreed to provide a urine sample, but was coerced to provide it by unlawful tactics and excessive force. The municipal court ordered the documents produced relying specifically upon the fact that such evidence of dishonesty would have been admissible under Evidence Code Sections 110l(b), 780(e) and 787. The Court of Appeal struck down that argument as proper justification because it was merely a showing of theoretical admissibility. The court then went on to discuss whether relevancy had been shown. The court said "in a proper case and on a proper and substantial showing by way of a detailed affidavit in which defendant commits himself under oath' to a particular assertion of fact, it is conceivable the material sought might be discoverable. But this is not that case." (Navarro, supra at p. 359). Emphasis added). The court explained that defendant only averred he "may" contend the 1 Now, affidavits made on information and belief would be sufficient. (City of Santa Cruz (Kennedy), surra) 5- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 861 I police coerced him into providing a urine sample and that was insufficient to show a 2 plausible justification for the discovery. (Id.) 3 In Cadena v. Superior Court (1978) 79 Cal. App. 3d 212, 146 Cal. Rptr. 390, a 4 motion requesting information from previous complaints of excessive force was granted 5 because the defendant used facts to support his contention that excessive force was used and 6 self-defense was claimed. The defendant in Cadena stated in his declaration in support of 7 the motion that "certain Montebello police officers broke open the screen door of the Acosta 8 home, grabbed and beat Mrs. Acosta and Victor Acosta, and that several other officers 9 accosted and beat petitioner when he came out the front door." 10 In Arcelona v. Municipal Court (1980) 113 Cal. App. 3d 523, 169 Cal. Rptr. 877, a 11 motion to discover previous complaints of excessive force should have been granted 12 because "counsel's supporting declaration outlining the events of May 21-22 provided 13 adequate factual details demonstrating the manner in which the requested records 14 pertained to his clients possible defenses. Thus, the declaration provided an adequate 15 factual foundation establishing a plausible justification for discovery." (Supra at page 16 530). (Emphasis added). 17 In City of Santa Cruz v. Superior Court (Rush) (1987) 190 Cal. App. 3d 1669, 236 Cal. 18 Rptr. 155, the defendant, charged with assaulting an officer, moved for discovery of, inter alia, 19 past dishonesty complaints. Defense counsel used facts to support his contention of excessive 20 force in his declaration, but made no averments to support his request for records of dishonesty. 21 The trial court denied a review of records of dishonesty because only excessive force was 22 involved in the case. (Santa Cruz (Rush), supra, at p. 1672). 23 The court went on to discuss how counsel's declaration was devoid of facts because 24 it was made on information and belief. Of course, the 1989 Santa Cruz case (Kennedy), 25 supra, rejected that requirement but retained the requirement for a factual showing to 26 support the discovery. Therefore, the discussion of the lack of factual support for the 27 discovery in Santa Cruz (Rush), supra, is still applicable to the present case. 28 6- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 862 1 The Rush court indicated that Navarro was questioned in People v. Memro, but 2 only as to its requirement that a personal affidavit is required for plausible justification. The 3 court also cited Lemelle v. Superior Court (1978) 77 Cal. App. 3d 148, 162, 143 Cal. Rptr. 4 450 where the court denied discovery because defendant's declaration stated no facts 5 pertaining to the incident. (Lemelle, supra. 6 While the case of Jalilie v. Superior Court (1987) 195 Cal. App. 3d 487, 240 Cal. 7 Rptr. 662, only decided the issue of a declaration made on information and belief and left 8 for the court to determine on remand the merits of his motion, the court did note that in 9 support of a request for records of dishonesty, the motion was "supported by a lengthy 10 declaration ... reciting the arresting officers ... history of falsifying reports and evidence 11 inpost hoc attempts to justify unwarranted arrests ... [J the affidavit referred in detail to 12 events inspecific cases and alleged the ... officers had a habit ... and practice of searching 13 people they suspect and later justifying such actions without regard to the truth of the 14 matter." (Jalilie, supra, at p. 489, emphasis added.) 15 What is meant by all this is while a declaration made on information and belief only will 16 not be held insufficient upon that ground, it still must contain sufficient facts about the incident 17 to show a plausible justification for the discovery. Put another way, where a declaration made o 18 information and belief is completely devoid of facts supporting the claim of excessive force, it 19 will fail for lack of substance, not form. 20 All of the previous reported decisions that have reached the issue have held that a factual 21 showing of materiality and relevance must be made before discovery of records of police 22 misconduct should be granted. 23 The holding of the 1989 City of Santa Cruz (Kennedy) case, supra, is the culmination of 24 this discussion requiring a sufficient factual justification for the discovery. As stated earlier, the 25 declaration in that case was found sufficient to support discovery of excessive force complaints 26 because it described factually how the contention of excessive force was supported. 27 The California Supreme Court enunciated the standard for demonstrating good cause in a 28 Pitchess motion again in Warrick v Superior Court (City of Los Angeles) (2005) 35 Cal. 4th 7- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 863 2 3 4 5 6 7 8 9 10 11 12 13 14 15 lL 17 18 19 20 21 22 23 24 25 26 27 28 10 11. The court said: Regardless of how the materiality inquiry is described, however, a showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events. To show good cause as required by section 1043, defense counsel's declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence (People v. Hustead, supra, 74 Ca1.App. 0' at p. 417; Larry E. v. Superior , (1987) 194 Ca1.App. 3d 25, 32-33, 239 Cal. Rptr. 264) that would support those proposed defenses. These requirements ensure that only information "potentially relevant" to the defense need be brought by the custodian of the officer's records to the court for its examination in chambers. ( Peoplev.Mooc (2001) 26 C. &h 1216.). What standard must a moving party meet to show a "plausible" factual foundation for the Pitchess discovery requested? We conclude that a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. Such a showing "put[s] the court on notice" that the specified officer misconduct "will likely be an issue at trial." (Santa Cruz, supra, 49 Cal.3d at p. 86.) Once that burden is met, the defendant has shown materiality under section 1043. To determine whether the defendant has established good cause for in - chambers review of an officer's personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? If defense counsel's affidavit in support of the Pitchess motion adequately responds to these questions, and states "upon reasonable belief that the governmental agency identified has the records or information from the records" (§ 1043, subd. (13)(3)), then the defendant has shown good cause for discovery and in -chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant. Warrick at 1021 - 27). Applying all the aforementioned historical principles and the recitation of the law from the Supreme Court in Warrick, supra to this matter and several concepts become clear 8- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 864 I in "Pitchess" law. The Warrick court stated the declaration must articulate how the discovery 2 sought may lead to relevant evidence or may itself be admissible direct or impeachment 3 evidence that would support those proposed defenses. It was sufficient in City of Santa Cruz, 4 supra to factually claim that the officers handcuffed Howard Kennedy2 threw him down to 5 the ground by his hair, stepped on his head and twisted his arm behind his back.. The 6 Warrick court said an assertion of specific police misconduct must be both internally 7 consistent and support the defense proposed to the charges. The defense is required to make a 8 showing which puts the court on notice that the specified officer misconduct will likely be an 9 issue at trial. It was sufficient in Warrick to factually claim that he was not present at the 10 location to sell drugs, but to buy drugs and that it was somebody else who threw down the 11 rocks of cocaine, not him. 12 The case of City of San Jose v. Superior Court (Eti) (1998) 67 Cal. App. 4" 1135 70 13 Cal Rptr. 2d 624, is a case that is almost identical to the situation involved in this matter. In 14 City of San Jose, supra, the defendant's declaration in support of a Pitchess motion which, like 15 the motion at issue here, targeted dishonesty records and stated: 16 • The consent to enter and search was not in fact obtained by the officers; 17 • There were material misrepresentations in the police reports and in court 18 testimony, which were made to conceal that fact, and; 19 • Evidence disclosed during the search was mishandled. 20 The court in City of San Jose, supra, analyzed each one of these contentions and 21 explained how they were insufficient to support the motion. As to the consent to enter and 22 search, the court said more detail had to be provided, such as was the consent coerced and if 23 so, what were the means of coercion or was it a simple failure to obtain the consent. As to the 24 contention that there were material misrepresentations in the police report and in court 25 testimony; the court said that it lacked sufficient detail as to which statements were incorrect 26 and how they were untruthful. Finally, as to the third claim, the evidence disclosed during 27 the search was mishandled, the court again said it lacked sufficient detail as to which one of 28 2 The Real Party in the Santa Cruz case Q- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 865 1 the multiple items seized during the search were mishandled and how the booking of the 2 evidence was improper. The court held that based on the lack of detail the defendant failed to 3 establish a specific factual scenario supporting the motion and the motion should have been 4 denied. 5 The Second District Court of Appeal issued a decision on a Pitchess motion which is 6 also illustrative on the issue. Explaining what is required in a Pitchess declaration under 7 Warrick, supra, the court in People v. Thompson (2006) 141 Cal. App. 4th 1312, said 8 Thompson failed to show "good cause for the requested discovery because he did not 9 present a specific factual scenario that is plausible when read in light of the pertinent 10 documents and undisputed circumstances." (Thompson at p. 1316). 11 In People v. Thompson, supra, the declaration simply claimed that the defendant was 12 not at the location of the arrest to buy drugs, no buy money was found on the defendant, and he 13 was only arrested because he was in an area where the officers were making arrests and when 14 they found out he had a criminal history they made the arrest. This showing was insufficient to 15 support the Pitchess motion. It failed to provide a factual account of the event from the defense 16 point of view and in a manner in which supported his proposed defenses. The motion should 17 have been denied. The motion at issue herein is very similar in some respects to the deficient 18 motion in People v. Thompson, supra. 19 To the same effect is People v Sanderson (2010) 181 Cal. App. 4th 1334, a decision 20 of the Fourth District Court of Appeal two years ago. In that case the defendant was 21 charged with making criminal threats over the phone while police were listening. The 22 police officers heard his threats. The defense Pitchess motion contained a declaration in 23 which it just denied that he made the threatening statement. This court found that 24 insufficient because the defense did not deny making the phone call or engaging in a 25 conversation with the victim and it failed to present an alternate version of the facts from 26 the defense point of view. Indeed, the Sanderson court found the Thompson case 27 particularly instructive. (Sanderson at 1341-42). 28 10- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 866 I The context of this Pitchess motion is all important to the gravamen of this case. 2 This is not the typical criminal defense Pitchess motion which seeks access to records 3 pertaining to excessive force. This Pitchess motion arises from an administrative 4 disciplinary appeal in which the appellant claims the named officers lied in some way 5 relevant to his defense. It is that claim which sets the contours of any Pitchess type 6 discovery plaintiff is entitled to have reviewed. 7 In People v Memro (1985) 38 Cal 3d 658, the defense filed a Pitchess motion for 8 discovery. In the motion, Memro named 16 different officers, including the four Southgate 9 police officers who interrogated him following his arrest (Officers Sims, Gluhak, Carter 10 and Greene) as well as 12 other officers who he claimed trained the four officers in 11 engaging in coercive interrogation tactics. Memro requested all records of excessive force 12 or violence filed against the officers. He sought this material to bolster his claim that his 13 confession had been coerced. The trial court denied the motion. Memro was convicted and 14 on appeal claimed that denial was in error. 15 The California Supreme Court held the initial showing of good cause to grant the 16 motion was met. Counsel's allegations were sufficient to put the court on notice that the 17 voluntariness of the confession would be an issue in this case. 18 Then the Supreme Court took up the notion of the scope of the discovery requested 19 by Memro. In other words, since the declaration in support of the Pitchess motion was 20 sufficient to grant the motion in the first place, what was the proper scope of the in -camera 21 review? 22 The Supreme Court said: 23 "On its face, Appellant's request for the identities of all complaints of excessive force was overly broad. Since Appellant sought the information to 24 bolster his claim of involuntariness in the interrogation setting, only complaints by persons who alleged coercive techniques in questioning were 25 relevant." (Memro at 685) 26 27 28 II- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 867 1 Next the Supreme Court took up the request for both the interrogating and non- 2 interrogating officers .3 The court held that the link between the interrogating and non- 3 interrogating officers concerning this pattern of conduct was slight. 4 "Therefore, without some showing that any of the non-interrogating officers 5 trained or otherwise had substantial contacts with any of the four interrogating officers, complaints about the former group were not 6 discoverable." (Memro at 686). 7 Put another way, since Memro sought Pitchess discovery to bolster the 8 involuntariness of his confession only those complaints about coercive interrogation tactics 9 should be reviewed and only if those complaints were made against one or more of the four 10 officers who participated in the alleged coercive interrogation of Memro. Thus, the in- 11 camera review should have only included Officers Sims, Gluhak, Carter and Greene. 12 In applying the principles explained in the Memro, supra case to this opposition, the 13 first thing which must be discussed is whether the appellant herein, has stated sufficient 14 good cause, within his Pitchess motion entitling him to an in-camera review of some of the 15 sought after records. The Custodian of the Records contends that appellant has failed to 16 establish good cause for the discovery sought. 17 Curiously, less than one year ago, the California Supreme Court weighed in on this 18 very issue and issued an opinion which should be considered very instructive to this case. 19 In Riverside County Sheriff's Department v. Stialitz (Drinkwater) 60 Cal. 4th 624 20 ("Riverside"), the Supreme Court was asked to consider a pitchess motion filed in an 21 administrative discipline case. And unlike here, the pitchess motion filed in that case was 22 one which targeted many fellow Riverside County Sheriff deputies based on a claim of 23 disparate treatment. 24 Kristy Drinkwater ("Drinkwater") was employed as a Deputy Sheriff with the 25 Riverside County Sheriff's Department ("Department"). Drinkwater was terminated from 26 the Department for falsifying her payroll forms. She appealed her termination. Pursuant to 27 28 3 It was noted in Footnote 29 of the Memo opinion that the 16 names officers in the motion comprised "almost the whole [Southgate police] Department." Memro at 686) 12- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 868 I the MOU, Arbitrator Jan Stiglitz ("Stiglitz") was selected by the parties to be the hearing 2 officer at that appeal. 3 Drinkwater asserted that she intended to use the disparate treatment defense, 4 claiming that others had committed similar misconduct but were not fired. She filed a 5 "pitchers" motion before Stiglitz seeking personnel investigations of any department 6 employee who had been disciplined for similar acts of misconduct. She sought incident 7 summaries, rank of the officer and discipline imposed. Stiglitz denied the motion, without 8 prejudice, ruling that the department did not have to search its files for similar misconduct, 9 instead Drinkwater had to identify particular officers she believed had engaged in 10 misconduct relevant to her claim. 11 Drinkwater renewed her motion and identified 11 officers who allegedly committed 12 misconduct similar to hers. The matter then went through the Appellate Court system on the 13 issue of whether a pitchess motion should be allowed in an administrative disciplinary 14 appeal hearing and whether a hearing officer or a court should handle it. Ultimately the 15 Supreme Court held a pitchess motion is allowed in such a hearing and a hearing officer like 16 Stiglitz is well-qualified to rule on them. 17 Throughout the case, the Supreme Court consistently repeated the fact that the 18 pitchess motion in this context must include affidavits that set forth the materiality of the 19 sought after records to the subject matter involved in the pending litigation. Thus, where 20 the affidavit fails to set forth the materiality to the disparate treatment claims of the party 21 seeking disclosure, the motion should be denied. 22 The court also held "the pitchess statutes reflected the legislatures attempt to balance 23 a litigant's discovery interest with an officer's confidentiality interest" (Riverside at 639). 24 That is a very important concept to keep in mind when evaluating this motion. The 25 Riverside court made particular note of the fact that unlike a typical pitchess motion in the 26 criminal court context which arises from an arrest event where the arresting officer at least 27 has some involvement in the litigation, typically as a witness, and whose credibility is 28 subject to challenge, this is not that case. "The question here is not whether the officers 13- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 869 1 might be credible, but whether the department decision makers granted those officers 2 disparate treatment" (Riverside at 641). 3 This all important concept, we contend, must be kept in mind in ruling on this 4 motion. The only context in which a Pitchess motion is allowed in an administrative case is 5 when the claim is disparate treatment. That is not the claim in this motion. 6 As the Supreme Court said in Riverside, supra, "we have also clarified that an 7 officer's entire personnel file need not be presented for review, only materials of the type 8 requested" (Riverside at 640, citing People v. Mooc, 26 Cal. 4" 1228-1230) and consider 9 "in the present case, such materials would be limited to incidents involving conduct similar 10 to Drinkwater's. This limitation balances privacy interests while permitting focused 11 discovery" (Riverside at 640). 12 Applying all of the above to the situation presented by this motion and it should be 13 abundantly clear that the requests made in these motions are so substantially overbroad as to 14 violate the Supreme Court ruling in Memro, supra. Additionally, this is not the same type 15 of Pitchess motion authorized in the administrative context in the Riverside Sheriff: supra, 16 case. On the contrary, this is a Pitchess motion which targets dishonesty records as to all of 17 the named officers. Accordingly, the ruling on this motion should be governed by the 18 holdings of City of San Jose, supra, People v Thompson and People v Sanderson, supra. In 19 other words the declaration in support of each request for discovery must contain a 20 sufficient factual account of the alleged dishonesty perpetrated by each named officer in the 21 disciplinary case at issue in this hearing and it has to put for a sufficient factual account 22 supporting the dishonesty allegation in a manner which supports a plausible justification for 23 the discovery sought. It is this the appellant herein has failed to do and even a cursory 24 review of each declaration attached to each motion indicates this fairly clearly. 25 1. Sergeant Chad Pfarr 26 In this motion appellant seeks information concerning how the 27 department handled any misconduct it found or did not find on Sergeant Pfarr 28 which relates specifically to the event which lead to the charges against the 14- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 870 I appellant. In this way and as to this motion, the Pitchess motion targeting 2 Sgt. Pfarr most closely resembles the motion described in the Riverside 3 County Sheriff's Department, supra, case inasmuch as it seeks to determine 4 how the department imposed discipline upon another employee involved in 5 the same event as appellant. 6 Inasmuch as the issue presented in this Pitchess motion is one based 7 upon a disparate treatment claim, some discussion of the contours of that 8 claim are in order here. In order to prevail on a claim of disparate treatment 9 one must show that similarly situated employees were treated differently and 10 that the reason for the existence of this disparity in treatment is some 11 impermissible reason. (Vasquez v. County of Los Angeles (9th Circ. 2003) 12 349 F.3d 635) This can be a difficult claim to support because the reasons 13 that an employer imposed specific sanctions on certain employees will almost 14 never be sufficient to permit the conclusion that the officer who seeks the 15 records was truly similarly situated, because the agency has broad discretion 16 to take almost innumerable factors into account in determining an appropriate 17 sanction for a particular officer. (See generally Talmo v. Civil Services 18 Commission (1991) 231 Cal. App. 3d 210.) 19 Disparate treatment of similarly situated employees may be an abuse 20 of discretion on the part of the public agency and consequently may provide a 21 basis for rescinding or modifying discipline (Pegues v. Civil Service 22 Commission (1998) 67 Cal. App. 4th at 104-106; Talmo, sera at 229-231; 23 See Harris v. Alcohol Beverage Control Appeals Board (1965) 62 Cal. 2d at 24 594-595.) While the claim that the punishment imposed is excessive in 25 comparison with punishment imposed on other personnel in similar 26 circumstances is a valid claim to make either in the employment discipline 27 context or in a retaliation claim, there is "no requirement that charges similar 28 in nature must result in identical penalties." (See Talmo, supra at 230; 15- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 871 1 2 3 4 5 6 7 8 ZZ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pte, supra at 104-106.) The entirety of this body of law consistently refers to "similarly situated employees." In Vasquez v. County of Los Angeles, SUM, Individuals are similarly situated when they have similar jobs and display similar conduct." (Vasquez at 641). Disparate treatment can come up when other employees with qualifications similar to (another employee) were treated more favorably." (Vasquez, supra at fn 5 citing McDonnell Douglas v. Green (1973) 411 U.S. 792, 802). Employees in supervisory positions are generally deemed not to be similarly situated to lower level employees Vasquez, supra at 641-642). A showing is required that the "problematic conduct be of comparable seriousness" to be considered similarly situated id). To be similarly situated, an employee must have the same supervisor, bi subject -to the same standards and have engaged in the same conduct. Vasquez, supra at fn 17 citing Hollins v. Atlantic Co., Inc. (6th Circ., 1999) 188 F.3d 652, 659). After carefully considering the above, it should appear inescapable the appellant is not entitled to discovery what, if any, disciplinary action it took on Sgt. Pfarr for any of his conduct in either the CAT shift event or the Bentley event. First, any misconduct at all committed by Sgt. Pfarr was of a completely different character than appellants. Appellant actually engaged in the acts alleged to have violated the rules, Sgt. Pfarr was not a participant in the same, or even similar, misconduct as compared to appellant. At most, Sgt. Pfarr could arguably be criticized for not taking appropriate action as a sergeant of police at the Bentley accident scene. Such misconduct would be in the nature of a failure to supervise and thus, as a sergeant, he is not a similarly situated employee to that of the appellant who actually engaged in the misconduct. Therefore, the motion should be denied on that ground alor 16- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 872 1 There is no request for dishonesty related records in the Pfarr Pitchess 2 motion so that claim need not be addressed. And one does not get to have 3 reviewed the performance evaluations of officers on a Pitchess motion. (See 4 Arcelona v. Municipal Court (1980) 113 Cal. App. 3d 523, 169 Cal. Rptr. 5 877and City of Azusa v. Superior Court 191 Cal. App. 3d 693) 6 On the off chance that this motion survives all of the previous 7 problems pointed out hereinabove and also that the hearing officer does find 8 that the motion targets a general dishonesty claim we offer the following in 9 opposition. There is no question that the list of records requested in the 10 motion does not include any request for past dishonesty records but there are 11 several references in the point and authorities which elude to that claim. For 12 instance, the points and authorities states that "Sergeant Harr's credibility 13 and reliability as a historian a matter of determination for this hearing 14 officer...". (See motion, page 5, line 1) Not only are we flummoxed by this 15 sentence in general, we are simply mystified as to how Sgt. Pfarr's status as a 16 historian has anything to do with this case. Nevertheless, this motion rises or 17 falls on the requests made, not on the contents of the points and authorities. 18 But again, out of an abundance of caution, the declaration is insufficient to 19 support a request for general dishonesty. 20 A general dishonesty request in a Pitchess motion is governed by the 21 City of San Jose, supra, People v Thompson., supra and People v Sanderson, 22 supra, cases. By that measure the declaration attached to the Pfarr motion 23 pales by comparison to the declarations in those cases. There is absolutely 24 nothing in the declaration in support of the Pfarr Pitchess motion which 25 supports in any way that he lied with regard to any fact in this case. All the 26 declaration states is that the allegations are based on information provided by 27 Sergeant Pfarr. Agreed, they were. But that is not enough to support a 28 Pitchess discovery request for dishonesty records. As stated in the case 17- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 873 1 authority, there has to be some showing that the discovery request is more 2 than just a mere request for the information sought because one wants it. That 3 is what the appellant's motion essentially is; a mere desire for the information 4 because it wants it. 5 The declaration in support of the motion is nine paragraphs in length. 6 And yet all one gets out of it by reading it is that appellant's counsel is an 7 attorney licensed to practice, the appellant is asking for the discovery; 8 Waddell was terminated for making false statements and failing to report for 9 duty and taking car parts; the information on which those charges are based 10 came from Sgt. Pfarr; the material sought is relevant; may lead to other 11 evidence; appellant has no other source for the information and it must be 12 ordered by the hearing officer. That sparse a declaration is insufficient as 13 against the declarations at issue in the case decisions bearing on Pitchess 14 discovery. The motion should be denied. 15 2. Lieutenant Jeff Smith 16 The Pitchess motion for records relating to Lieutenant Jeff Smith is 17 virtually identical to the motion which targets Sgt. Pfarr. Thus, the comments 18 made above with regard to Sgt. Pfarr apply as well to this motion. We would 19 add, however, that the connection between appellant and any discipline 20 imposed upon Lt. Smith for failure to supervise is even more tenuous than it 21 is to Sgt. Pfarr because of Lieutenant Smith's higher rank and the fact that he 22 was not present at any of the events in this case. The declaration in support of 23 this request is identical to that attached to the Sgt. Pfarr motion and it is just 24 as insufficient. The motion should be denied 25 3. Lieutenant John Bledsoe 26 The difference between this Pitchess motion and the previous two 27 motions is that there is no question that the defense has requested records 28 related to general dishonesty committed by Lt. Bledsoe. One would think if 18- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 874 I appellant is capable of articulating such a request in this motion, he could 2 articulate it in the others. Putting that aside for the moment, appellant has 3 asked for all internal affairs investigations and any and all complaints filed 4 against Lt. Bledsoe. That is improperly overbroad. (See Hinojosa v. Superior 5 Court, 55 Cal. App. 3d 692, 697 and People v Memro, supra). By asking for 6 everything in Lt. Bledsoe's file appellant has not pinpointed the particular 7 misconduct alleged to be relevant to his potential defenses; it is basically a 8 request for everything in the file for no other reason than the appellant wants 9 it. 10 In request number 4 appellant does zero in on complaints or 11 investigations of complaints which target past dishonesty but the problem 12 with that request is that it finds no support whatsoever in the declaration in 13 support of the motion. The declaration in support of the request for 14 information from Lt. Bledsoe's personnel file is just as insufficient as it was 15 for the others. There is absolutely nothing in the declaration which 16 articulates, let along alleges, that Lt. Bledsoe was dishonest in any way with 17 regard to this case. Indeed, the declaration states that this action was based 18 on what information was given to the department by him but nothing in the 19 declaration explains why that information was dishonest. The motion should 20 be denied. 21 As a final matter, to the extent that the points and authorities refer to 22 Brady information (see Brady v Maryland 373 U.S. 83 (1963)) it should be 23 ignored. It should be fairly evident that appellant has simply borrowed from a 24 previous Pitchess motion filed in the criminal court context and has not 25 sufficiently refined it for use in this context because the concept of Brady has 26 absolutely no application is the administrative context. All references to 27 Brady should be ignored and the hearing officer should be careful to just 28 accept the claims made in a motion which undoubtedly did not go through UFFU. UP' THE CUST. UFTHE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 875 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1 16 17 18 19 20 21 22 23 24 25 26 27 28 very much refinement before being use herein. 4. Lieutenant Bill Proll The Pitchess motion targeting Lt Proll is virtually identical to the motion previously analyzed with regard to Lt. Bledsoe and the same comments and criticism applies equally to the motion toward Lt. Proll and as such this motion should be denied for the same reasons. So, to sum up, in Memro, supra, the claim was a coercive interrogation. The court held only complaints made by persons who alleged coercive interrogation tactics were engaged in by the officers who allegedly engaged in the coercive interrogation in that case should be reviewed. The same is true here as it relates to Sgt. Pfarr and Lt. Smith. Here, the claim is disparate treatment does not lie when the employees at issue in this motion were supervisory only and did not engage in the same of similar misconduct that appellant did. Anything more is nothing short of traipsing through the confidential files of all of the witnesses used by the department in this case to see if anything is in there. That is the sort of "fishing expedition" frowned on by the courts. And as it relates to Lieutenant Bledsoe and Proll, the declarations in support of those emotions are woefully inadequate and each motion should be denied. CONCLUSION The motions should be denied consistent with this opposition. Dated: July1y 2015 Respectfully submitted JONES & MAYER By: eg . Palmer Attorneys for the Custodian of the San Luis Obispo Police Department 20- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 876 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 3777 North Harbor Boulevard, Fullerton, California 92835. On July 7, 2015, I served the foregoing document described as OPPOSITION OF CUSTODIAN OF THE RECORDS OF THE SAN LUIS OBISPO POLICE DEPARTMENT TO APPELLANT'S MOTION FOR DISCOVERY OF PEACH OFFICER PERSONNEL FILE INFORMATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on each interested party, as follows: SEE ATTACHED SERVICE LIST X (Via Mail) I deposited such envelope, with postage thereon fully prepaid, in the mail at La Habra, California. I am readily familiar with the Law Offices of Jones & Mayer practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at La Habra, California, in the ordinary course of business. I am aware that on motion of the parties served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing affidavit. Overnite Express) I deposited such envelope in the depository at Fullerton, California ensure next day delivery. Via Personal Service) I caused to be delivered such envelope by hand to the offices of the addressees. Via Facsimile) I caused the within documents to be transmitted to telephonic facsimile to the addressees. X (Via E -Mail) I caused the within documents to be transmitted electronically to the e-mail address indicated above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 7, 2015 at Fullerton, California. LAURA MILLER PROOF OF SERVICE Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 877 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Christopher Cameron Arbitrator and Civil Service Hearing Officer Professor of Law c/o Southwestern Law School 3050 Wilshire Blvd. Los Angeles, CA 90010 Telephone: (213) 738-6749 Facsimile: (213) 738-6698 ccameron@swlaw.edu Kasey A. Castillo, Esq. Nicole A. Naleway, Esq. Gaspard Castillo Harper, APC 3333 Concours St., Bldg 4, Ste. 4100 Ontario, CA 91764 Telephone: (909) 466-5600 Facsimile: (909) 466-5610 kasey@GCHattomeys.com nikki@ GCHattomeys.com Attorneys for Appellant Kevin Waddell Christine Dietrick, Esq. City Attorney, City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Telephone: (805) 781-7140 cdietric@slocity.org Chris Staley Operations Police Captain San Luis Obispo Police Department 1042 Walnut St. San Luis Obispo, CA 93401 cstaley@slocity.org SERVICE LIST 2 PROOF OF SERVICE Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 878 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KASEY A. CASTILLO, SBN #236690 NICOLE A. NALEWAY, SBN #300701 GASPARD CASTILLO HARPER, APC 3333 Concours St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Kasey@GCHattorneys.com Attorneys for Appellant KEVIN WADDELL BEFORE HEARING OFFICER CHRISTOPHER CAMERON IN RE THE MATTER OF THE APPEAL OF TERMINATION OF OFFICER KEVIN WADDELL FROM THE SAN LUIS OBISPO POLICE DEPARTMENT APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S OPPOSITION TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date to Be Heard: July 23, 2015 TO THE HEARING OFFICER AND OPPOSING COUNSEL: The following Memorandum of Points and Authorities is hereby submitted on behalf of Appellant, Kevin Waddell, in reply to San Luis Obispo Police Department's Opposition to Appellant's Motion for Discovery of Peace Officer Personnel File Information (Pitchess Motion). 1 APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S OPPOSITION TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMAWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 879 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF FACTS Appellant has filed four Pitchess motions seeking information from the personnel files for the following four San Luis Obispo Police Department peace officers: Sergeant Chad Pfarr, Lieutenant Jeff Smith, Lieutenant John Bledsoe, and Lieutenant Bill Proll. Each individual motion specifically listed what material Appellant requested from the individual peace officer's file, as well as why that information was relevant and material to Appellant's case. II. ARGUMENT A. THE DEPARTMENT AND THE CITY OF SAN LUIS OBISPO HAD NOTICE OF THE PITCHESS MOTIONS The Department's claim that Appellant's Pitchess motions should be rejected due to lack of strict compliance with Code of Civil Procedure section 1043 and the written notice requirements is both meritless (this is not civil court), and it causes undue delay. The relevant parties had notice of these Pitchess motions since June 26, 2015 for Sergeant Chad Pfarr's Pitchess Motion (it was personally served during the hearing), and since June 29, 2015 for Lt. Smith, Lt. Bledsoe, and Lt. Proll's Pitchess Motion (they were served to the relevant parties via email on said date). As such, the rejection of Appellant's Pitchess Motions due to procedural issues will do nothing more but cause undue delay on the hearing process and prolong the hearing. While the written notices were served via email (and mail subsequently) in relation to the time for notice, email has, at all times, been an accepted form of communication between the parties since the beginning of this appeal process, and as such there is implied consent and waiver that email is an accepted form of communication and notice. In fact, the City and the Department consistently send Appellant's counsel responses to subpoena duces tecums and 2 APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S OPPOSITION TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMA' Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 880 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Public Records Act Requests via email. Given the next hearing dates were set at the previous date (to include the motion hearing date), all relevant parties had notice of Appellant's motions for at least eighteen (18) court days. Therefore, the Pitchess Motions should not be rejected due to procedural technicalities. Should the Hearing Officer grant the Opposition for this reason, we would ask for leave to amend and re -serve for one of the many other scheduled dates in order to cure any perceived defect. B. THE INFORMATION IN THE PERSONNEL FILES WHICH WERE REQUESTED IS DIRECTLY RELATED TO APPELLANT'S CLAIM OF DISPARATE TREATMENT THE CREDIBILITY OF THE TESTIFYING WITNESSES, AND THE DEPARTMENT'S MOTIVE FOR APPELLANT'S TERMINATION Appellant filed an appeal in the above-named matter after the Respondent Police Department terminated him without just cause and where the penalty of termination was grossly excessive. Additionally, the proffered pretext for the termination of Appellant is based upon allegations regarding false statements to Sergeant Chad Pfarr regarding arriving late, and conduc detrimental to the department by breaking or removing vehicle parts. The Department and the City relied substantially on the internal affairs investigations tli were conducted by Lt. John Bledsoe and Lt. Bill Proll and relied on their credibility determinations of the witnesses in this case. Therefore, the information that Appellant requests from Lt. Bledsoe and Lt. Proll's personnel file is directly relevant to the current matter, as they were the investigators making the credibility determination for which the Department and City relied upon in their decision to terminate Appellant, Kevin Waddell. Additionally, in terms of Sgt. Chad Pfarr's personnel file and Lt. Jeff Smith's personnel file, based on testimony presented at the hearing, it is Appellant's belief that Sergeant Chad Pfau - was allegedly disciplined after Appellant was investigated for his lack of supervision of APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S OPPOSITION TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMATIWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 881 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appellant, and Lt. Smith was disciplined and/or remediated after the Appellant was investigated for this "failure to supervise" Appellant. Therefore, the information requested by Appellant is directly relevant to the current case to show disparate treatment within the department. C. APPELLANT HAS DEMONSTRATED GOOD CAUSE FOR THE PRODUCTION OF THE PERSONNEL RECORDS FOR THE FOUR PEACE OFFICERS A showing of good cause is measured by relatively relaxed standards that serve insure the production for trial court review of all potentially relevant documents." People Gaines, 46 CalAth 172, 179 (2009) (internal citation and quotation marks omitted). Informati is considered material if it "will facilitate the ascertainment of the facts and a fair trial. declaration by counsel on information and belief is sufficient to state facts to satisfy I materiality component of that section." Haggerty v. Superior Court, 117 Cal.AppAth 1079, 10 2004) (internal citation and quotation marks omitted). Here, Appellant is seeking records necessary to defend against the allegations for he was terminated for. The records sought herein are necessary to show that Appellant wa: subjected to disparate treatment based on the fact that other peace officers that were involved it the two incidents for which Appellant was being investigated for, and ultimately terminated for were treated more favorably than Appellant, which is the case with Sergeant Chad Pfarr ant Lieutenant Jeff Smith. Production of these records necessarily includes personnel complaints internal investigations and corresponding/resulting discipline. Information pertaining be disciplinary proceedings against police officers is subject to disclosure. City of San Jose v. Superior Court, 5 CalAth 47 (1993); see also Welsh v. City and County of San Francisco, 887 F.Supp. 1293 (N.D. Cal. 1995) (holding that investigative documents pertaining to police officer who brought civil employment action against police chief were subject to disclosure). In order for Appellant to have the opportunity to effectively appeal this case, personnel documents sought to be disclosed by this motion must be reviewed by the Officer and disclosed to the extent the Hearing Officer finds them relevant to the subject 4 APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S OPPOSITION TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMA' Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 882 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of this action'. As Appellant has no alternative method for obtaining the information sought refusal to grant Appellant's request would result in undue prejudice to Appellant. D. APPELLANT'S COUNSEL HAS DEMONSTRATED THE MATERIALITY TO THE SUBJECT MATTER FOR THE REQUESTED INFORMATION Appellant's counsel demonstrated good cause and the materiality to the subject matter fo each of the documents requested. A declaration by counsel on information and belief is sufficient to state facts to satisfy the materiality component of that section." Haggerty t, Superior Court, 117 Cal.AppAth 1079, 1086 (2004) (internal citation and quotation mark; omitted). In each Pitchess motion and in her Declaration, Attorney Naleway delineates tht materiality of the information from the personnel file for each of the four peace officer's: For Sergeant Chad Pfarr's Personnel File, she states: 3. "Kevin Waddell was terminated for allegations of false statements or giving false information to a Department Supervisor and for failure to report for duty in a punctual manner. 4. Additionally, Kevin Waddell was terminated for allegations of conduct detrimental to the Department by breaking or removing a vehicle part violation of Vehicle Code 10852. 5. The allegations are based on information that was given to the San Luis Police Department by Sergeant Chad Pfarr. 6. All the materials requested herein are directly relevant to the disparate treatment that the San Luis Police Department engaged in conducting their investigation against Appellant and Appellant's discipline." [See Exhibit A: Appellant's Notice of Motion: Motion for the Discovery and Disclosure of Peace Officer Personnel File (Pitchess Motion) of Lieutenant Jeff Smith: Dec. of Nicole A. Naleway, 13-6]. 1 Once the trial court concludes that the party seeking disclosure has made a showing of good cause, the court conducts an in camera review of the records and discloses the information relevant to the subject matter of the pending litigation. People v. 5 APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S OPPOSITION TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMATIWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 883 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For Lieutenant Jeff Smith's Personnel File, she states: 3. Kevin Waddell was terminated for allegations of false statements or giving false information to a Department Supervisor and for failure to report for duty in a punctual manner. 4. Additionally, Kevin Waddell was terminated for allegations of conduct detrimental to the Department by breaking or removing a vehicle part, in violation of California Vehicle Code 10852. 5. The allegations are based on information that was given to the San Luis Police Department, to include by Lt. Jeff Smith. 6. All the materials requested herein are directly relevant to the credibility determinations necessary to determine this case, as well as the multiple affirmative defenses to be presented by the Appellant throughout the course of the Hearing. [See Exhibit B: Appellant's Notice of Motion: Motion for the Discovery and Disclosure of Peace Officer Personnel File (Pitchess Motion) of Lieutenant Jeff Smith: Dec. of Nicole A. Naleway, 13-6] For Lieutenant John Bledsoe's Personnel File, she states: 3. Kevin Waddell was terminated for allegations of false statements or giving false information to a Department Supervisor and for failure to report for duty in a punctual manner. 4. Additionally, Kevin Waddell was terminated for allegations of conduct detrimental to the Department by breaking or removing a vehicle part, in violation of California Vehicle Code 10852. 5. The allegations are based on information that was given to the San Luis Police Department by Lieutenant John Bledsoe. 6. All the materials requested herein are directly relevant to the credibility determinations necessary to determine this case, as well as the multiple Mooc, 26 Ca1.4th 1216, 1226 (2001); Evid. Code § 1045(a). 6 APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S OPPOSITION TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMA' Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 884 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 01 21 22 23 24 25 26 27 affirmative defenses to be presented by the Appellant throughout the course of the Hearing. [See Exhibit C: Appellant's Notice of Motion: Motion for the Discovery and Disclosure of Peace Officer Personnel File (Pitchess Motion) of Lieutenant John Bledsoe: Dec. of Nicole A. Naleway, 13-6] For Lieutenant Bill Proll's Personnel File, she states: 3. Kevin Waddell was terminated for allegations of false statements or giving false information to a Department Supervisor and for failure to report for duty in a punctual manner. 4. Additionally, Kevin Waddell was terminated for allegations of conduct detrimental to the Department by breaking or removing a vehicle part, in violation of California Vehicle Code 10852. 5. The allegations are based on information that was given to the San Luis Police Department by Lieutenant John Bledsoe. 6. All the materials requested herein are directly relevant to the credibility determinations necessary to determine this case, as well as the multiple affirmative defenses to be presented by the Appellant throughout the course of the Hearing. [See Exhibit C: Appellant's Notice of Motion: Motion , for the Discovery and Disclosure of Peace Officer Personnel File (Pitchess Motion) of Lieutenant John Bledsoe: Dec. of Nicole A. Naleway, 13-6] Because Appellant's have complied with all statutory requirements for disclo Appellant's are entitled to an in camera review of the materials, and eventual disclosure. IV. THE CITY MUST PRODUCE "POTENTIALLY RELEVANT" MATERIAL The City is obligated to produce all records that constitute "potentially relevant" material. 7 APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S OPPOSITION TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMA' Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 885 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring to the trial court all potentially relevant" documents to permit the trial court to examine them for itself. People v. Mooc, 26 CalAth 1216, 1229 (2001) (quoting Santa Cruz v. Municipal Court, 49 Cal.3d 74, 84 (1989). In this case, Appellant requested information from the personnel files of the pea officers who were involved in, and/or investigated the incidents for which Appellant w investigated. As a result, their credibility is clearly at issue. Because the requested documents a well -within the scope of production of Pitchess and relevant as discussed above, any narrc interpretation or definition of the documents sought to be disclosed would subvert the principI underlying Pitchess motions. As counsel for the Respondent himself stated, Drinkwater, Pitchess is appropriate herein. V. CONCLUSION Based on the Pitchess Motions, this Reply Brief, and the Declaration of Nicole Naleway, Appellant respectfully request that the Hearing Officer conduct an in camera rev and order production of the aforementioned documents. Dated: July 16, 2015 Respectfully submitted, GASPARD CASTELLO HARPER, APC NICOLE A. NAL WAY Attorneys for Appellant KEVIN WADDELL 8 APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S OPPOSITION TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMAWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 886 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. Mybusinessaddress is 3333 Concours St., Bldg. 4, Ste. 4100, Ontario, CA 91764. On July 16,2015, 1 served the following document described as APPELLANT'SREPLYTOSANLUISOBISPOPOLICE DEPARTMENT'S OPPOSITION TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNELFILEINFORMATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action by e-mail and a true and correctcopyofthedocumentaforementionedeachofrecipientslistedbelow, Served via Overnight Mail Ontrac) San Luis Obispo Police Department 1042 Walnut Street San Luis Obispo, CA 93401 Served via Overnight Mail Ontrac and e- mail) Hearing Officer Christopher Cameron Arbitrator and Civil Service Hearing Officer c/o Southwestern Law School 3050 Wilshire Boulevard Los Angeles, CA 90010 ccameron@swlaw.edu Served via Overnight Mail Ontrac and e- mail) Greg Palmer, Counsel for San Luis Obispo Police Department 3777 North Harbor Boulevard Fullerton, CA 92835 gpp@Jones-mayer.com Served via Overnight Mail Ontrac and—e- mail) City Attorney Christine Dietrick 990 Palm Street, Room 10 San Luis Obispo, CA 93401 cdietrick@slocity.org I 1 I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service. I know that the correspondence was deposited with the United States Postal Service on the same day this declaration was executed in the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States mail at Ontario, California. By Personal Service, I caused such envelope to be delivered by hand to the above addressee(s). By Facsimile machine, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) X] By Electronic Mail, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) X] By Overnight Courier, I caused the above referenced document(s) to be delivered To an overnight courier (UPS) for delivery to the above addressee(s). X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. PROOF OF SERVICE -I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 887 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Executed on July 16, 2015 at Ontario, California. PROOF OF SERVICE -1 Lori Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 888 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KASEY A. CASTILLO, SBN #236690 NICOLE A. NALEWAY, SBN #300701 GASPARD CASTILLO HARPER, APC 3333 ConcAppellant's counsels St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Kasey@GCHattomeys.com Attorneys for Appellant KEVIN WADDELL BEFORE HEARING OFFICER CHRISTOPHER CAMERON IN RE THE MATTER OF THE APPEAL OF TERMINATION OF OFFICER KEVIN WADDELL FROM THE SAN LUIS OBISPO POLICE DEPARTMENT APPELLANT'S OPPOSITION TO SAN LUIS OBISPO POLICE DEPARTMENT'S MOTION TO QUASH SUBPOENAS DUCES TECUM; MEMORANDUM OF POINTS AND AUTHORITIES Date to Be Heard: July 23, 2015 TO THE HEARING OFFICER AND OPPOSING COUNSEL: Appellant, Kevin Waddell, herein oppose the motion to quash subpoenas as one with no merit and utterly frivolous. Motion is loaded with irrelevant material, represents mostly an attack on Appellant's counsel and an attempt to prejudice the Hearing Officer against Appellant's counsel. Motion should be denied as one without merit and frivolous. APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S MOTION TO QUASH SUBPOENAS DUCES TECUM Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 889 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF FACTS Appellant filed an appeal in the above-named matter after the Respondent Police Department terminated him without just cause and where the penalty of termination was grossly excessive. Additionally, the proffered pretext for the termination of Appellant is based upon allegations regarding false statements to Sergeant Pfarr regarding arriving late to a C.A.T shift, and conduct detrimental to the department by breaking or removing vehicle parts. The Department and the City relied substantially on the two internal affairs investigations that were conducted by the internal affairs division of the Department in deciding to terminate Appellant. On June 17, 2015, Appellant served the Department with a subpoena duces tecum requesting: "Any and all emails from January 2013 through October 2014 referencing the terms including and/or) CAT, C.A.T., downtown foot patrol overtime or OT (O.T.) from and to any and all San Luis Obispo Police Department employees." (See Respondent's Exhibit A). As one of the Department's investigations of Appellant pertains to allegations of false statements made to a supervisor regarding arriving late to a C.A.T. shift, Appellant's subpoena and the information requested in said subpoena is relevant and material to assist in a fair and effective presentation at Appellant's hearing. On June 16, 2015, Appellant served the Department with a subpoena duces tecum requesting the following for both investigations: any and all drafts of the administrative investigation packet prepared by any and all San Luis Obispo Department employees and/or employees for the above -referenced case; any and all drafts of the narratives and/or synopses included in the Al packet; and any and all attachments to the emails dated January 15, 2014, February 5, 2014, from Lt. John Bledsoe to Bill Proll; and a privilege log (See Respondent's Exhibit B). The requested documents are all documents that are either attachments to, or material to the understanding of the documents that were previously provided by the City of San Luis Obispo to Appellant pursuant to Appellant's previous subpoena request, dated May 22, 2015. See Appellant's Exhibit 1: City of San Luis Obispo's Response to Appellant's Public Records APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S MOTION TO QUASH SUBPOENAS DUCES TECUM Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 890 2 0 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Act Request/ Subpoena Duces Tecum, dated June 12, 2015). Per the Subpoena and Public Records Act Request, Appellant requested the following documents: Any and all emails, memoranda, correspondence, between any members of the San Luis Obispo Police Department, or City of San Luis Obispo, relating to the investigation, discipline, or termination of Kevin Waddell (dates: beginning 1/2013 through 10/1/2014); and all instant message communications via MDC on 10/ 19/13 pertaining to Kevin Waddell, under the login of "admin" or "Pfarr" (See Appellant's Exhibit 1). The City produced documents that were responsive to this Subpoena request, and neither the City nor the Police Department submitted a motion to quash this subpoena duces tecum for records based on lack of good cause. These documents and files are reasonably believed to be in the custody of the San Luis Obispo Police Department. II. ARGUMENT A. APPELLANT'S SUBPOENAS SEEK INFORMATION RELEVANT TO MATTERS PENDING BEFORE THE HEARING OFFICER The San Luis Obispo Police Department cited section Code of Civil Procedure section 1985(b), in an attempt to support their argument that the Appellant failed to demonstrate good cause for the production of the things desired in each of the subpoenas duces tecum; however, neither the Department nor the City objected or filed a motion to quash to the prior five subpoenas duces tecum that Appellant submitted, which contained an almost identical statement of good cause. Obviously the Department and the City had no problem with this statement of good cause, as they produced documents that were responsive to Appellant's prior subpoena requests, which is evidenced by the City's Response in Appellant's Exhibit 1. It is questionable that the City now has a problem with Appellant's good cause statement in support of its subpoenas duces tecum because Deputy City Attorney Jon Ansolabehere has been extremely cooperative with Appellant in regards to these discovery requests (See Appellants Exhibit 2: APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S MOTION TO QUASH SUBPOENAS DUCES TECUM Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 891 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Congenial Correspondence between Appellant's counsel and Deputy City Attorney). The practice of the City of San Luis Obispo has been to be compliant with Appellant's discovery requests. Twice the Deputy City Attorney has requested Appellant narrow down the discovery requests, and Appellant has done so. The City has made no mention that Appellant's discovery requests are burdensome, until Mr. Palmer (who is not even fulfilling these requests), now has issue. Additionally, Mrs. Dietrick has been cc'd on all of these correspondence and has been aware of the congenial correspondence between Appellant's counsel and Deputy City Attorney in regards to these discovery requests. Appellant's counsel again attempted to cooperate with t] City and narrow the subpoena requesting C.A.T. emails, to which Mr. Palmer notified Appellant's counsel that Respondent would be doing a motion to quash (See Appellant's Exhibit 3). a. Good Cause Exists for Documents Pursuant to Appellant's Subpoena, dated June 17, 2015 Relating to the C.A.T. Emails Good cause does exist for the Department to produce the documents in Appellant's subpoena requesting any and all emails referencing the terms CAT, C.A.T, downtown foot patrol overtime or OT (O.T.). As one of the Department's investigations of Appellant pertains to allegations of false statements made to a supervisor regarding arriving late to a C.A.T. shift, Appellant's subpoena and the information requested in said subpoena is relevant and material to assist in a fair and effective presentation at Appellant's hearing. Additionally, these emails are relevant and material to the current case, as they relate to the practice, custom, and expectations set in place by the Department in regards to the C.A.T. downtown foot patrol program during the relevant time period. While opposing counsel would like to suggest that the only reason Appellant is requesting said documents is to impeach Lieutenant Smith, this argument must be disregarded as 4 APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S MOTION TO QUASH SUBPOENAS DUCES TECUM Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 892 2 H 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the subpoena request is dated June 16, 2015, and the hearing and testimony did not actually begin until June 25th and 26th, 2015—almost ten days later. Therefore, as this subpoena requests documents that are absolutely material to assist in a fair and effective presentation at the arbitration hearing regarding Appellant's termination from the Police Department, good cause does exist for the Department to produce said documents. b. Good Cause Exists for Documents Pursuant to Appellant's Subpoena, dated June 16, 2015 Relating to the Al Drafts Good cause does exist for the Department to produce the documents in Appellant's subpoena requesting any and all drafts of the administrative investigation packet prepared by any and all San Luis Obispo Department employee in order to complete the prior subpoena request, which the Department provided responsive documents for. The City produced documents that were responsive to this Subpoena request, and neither the City nor the Police Department submitted a motion to quash this subpoena duces tecum for records based on lack of good cause. The responses to this subpoena were not in fact complete, as they failed to include the attachments to numerous emails, thus, necessitating this additional subpoena request. The Assistant City Attorney, Jon Ansolabehere, who responded to the previous subpoena request, noted that some of the emails included exempt or privileged attachments, and that the draft IA files were privileged attachments based on attorney work product (See Appellant's Exhibit 1). However, this statement is inaccurate, as the attachments that pertain to drafts of Appellant's and attachments to these emails were not drafted by attorney, but Department members, and said e- mails were sent between Department members alone—no attorney was involved. Additionally, the Motion to Quash makes the argument that Appellant is not entitled to these document because Kevin Waddell was not terminated based on drafts, and that he was APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S MOTION TO QUASH SUBPOENAS DUCES TECUM Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 893 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 terminated based on the final package of evidence provided to him in his Notice of Intent and final notice of discipline. While it may be true that Appellant was not terminated based on the drafts of the IA packet, the drafts are absolutely relevant and material to Appellant's case, as the drafts provide evidence relating to the pretext and motivation surrounding Appellant's termination and include commentary between the investigators, the command staff, and the Chief, who operated as the Skelly officer. Therefore, as these documents are material and relevant to Appellant's case, good cause exists for the Department and City to produce responsive documents. B. DUE PROCESS As a matter of procedural due process, Appellant Kevin Waddell is entitled to a full evidentiary hearing. Without the production of the documents that Appellant requests, Appellant would be deprived of a full evidentiary hearing as these documents are relevant and material to assist in a fair and effective presentation at Appellant's arbitration. The City has not produced any personnel rules or MOU restrictions as to discovery protocol in these matters. Therefore, there is no reason to believe that discovery cannot be conducted at any time and on an on-going fashion. C. APPELLANT IS ENTITLED TO THE MATERIAL REQUESTED IN APPELANT'S SUBPOENA DATED JUNE 17.2015, UNDER GOVERNMENT CODE §6250 & §6253—CALIFORNIA PUBLIC RECORDS ACT REQUEST Appellant is also entitled to the material requested in the Subpoena dated June 16, 2015 requesting any and all emails referencing the terms CAT, C.A.T., downtown foot patrol or OT (O.T.) under the California Public Records Act, Government Code §6250 and §6253. Under Government Code section 6253, b) Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records 6 APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S MOTION TO QUASH SUBPOENAS DUCES TECUM Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 894 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so. c) Each agency, upon a request for a copy of records, shall within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of discloseable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor." Appellant sent a California Public Records Act Request for the same records referencing the CAT, C.A.T, downtown foot patrol overtime or OT (O.T.) from the same relevant time period on July 13, 2015. Therefore, Appellant would still be entitled to disclosure of said documents under California Public Records Act request under Government Code sections 6250 and 6253. While these documents are also relevant to this proceeding, these documents were not necessarily requested solely for this proceeding. As the Hearing Officer and counsel is aware, ANYONE can make a request to a public agency for public records. These emails clearly meet the criteria. III. CONCLUSION As Appellant has made a showing that good cause in fact exists for the production of the requested documents in Appellant's subpoenas, Appellant respectfully requests that the Hearing Officer rule that the City of San Luis Obispo and Police Department produce such records responsive to Appellant's two subpoena requests, dated June 16 and June 17, 2015. Dated: July 16, 2015 Respectfully submitted, GASPARD CASTILLO HARPER, APC NICOLE A. NAL WAY Attorneys for Appellant KEVIN WADDELL 7 APPELLANT'S REPLY TO SAN LUIS OBISPO POLICE DEPARTMENT'S MOTION TO QUASH SUBPOENAS DUCES TECUM Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 895 APPELLANT' S EXHIBIT 441" Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 896 City Attorney's Office 990 Pii1 Street S=ir Lu s Nisp€; CA 9"A 01 -% 9 505 781 7,140 June 12, 2015 Via US Mail Kasey Castillo Gaspard Castillo Harper, APC 3333 Concours Street, Building 4, Ste. 4100 Ontario, CA 91764 RE: Kevin Waddell v. City of San Luis Obispo Public Records Act Request/ Subpoena Duces Tecum Dear Ms. Castillo, Enclosed please find non-exempt documents responsive to your May 22, 2015 Public Records Act ("PRA") request and Subpoena Duces Tecum ("SDT") regarding the above referenced matter. Also enclosed is the Declaration of Custodian of Criminal Records for the SDT. Please note that certain documents, while responsive to your SDT, are exempt from the PRA (i.e. your client's personnel files). The City's production of such files as provided herein is based solely on the SDT and such documents are not intended to be made "public" under the PRA. Please also note that some of the enclosed e-mails included exempt or privileged attachments (i.e. draft IA files with attorney work product). Other e-mails included non-exempt attachments, final versions of which are also in your client's personnel file. The City is not reproducing any of these documents or any other documents within your client's personnel file as that file has been previously produced and is in your and your client's possession. Please let us know if you have any questions or comments. Thank you. enclosures Cc: J. Christine Dietrick, City Attorney Anthony Mejia, City Clerk Police Records Supervisor City Attorney Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 897 DECLARATION OF CUSTODIAN OF CRIMINAL RECORDS TITLE OF ACTION: CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and Production of Documents, Electronically Stored Information, and Things at Trial or Hearing and DECLARATION NUMBER OF ACTION: ARBITRATION Kevin Waddell v. City of San Luis Obispo DATE OF SUBPOENA: May 22, 2015 PARTY OBTAINING SUBPOENA: Kasey A. Castillo (SBN 236690) of GASPARD CASTILLO HARPER, APC. I, Kerri Rosenblum, the undersigned say: 1. I am the duly authorized Custodian of Criminal Records of the San Luis Obispo Police Department testifying to the records' identity and method of preparation; 2. 1 have authority to certify copies of these records; 3. The requested copies transmitted herewith are true and correct copies of all of the original records described in the above-named subpoena, insofar as the San Luis Obispo Police Department has such records. 4. The records referred to above were prepared by the personnel of the San Luis Obispo Police Department in the ordinary course of business at or near the time of the act, condition or event. 5. Please note: All instant message (IM) communications were searched for the requested time period and there were no IMs to or from Sgt Pfarr regarding Kevin Waddell. As we do not have the login "pfarr" or "admin" I searched the logins cpfarr and admpfarr. In addition, any "admin" messages would have been generated from the station and not from an MDC, so I searched for both MDC and station issued IMs. We have no responsive documents for this portion of your request. Executed on June 12, 2015, at San Luis Obispo, CA. I declare under penalty of perjury that the above is true and correct to the best of my knowledge and belief. Police Communications & Records Manager S' n ture of Declarant Title of Declarant Signature of Recipient Print Name Date received by Recipient Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 898 GASPARD CASTILLO HARPER A PROFESSIONAL CORPORATION 3996 Concours Street, Building 4, Suite 4100 Ontario, California 91764 Tel: (909) 466-5600 1 Fax: 909-466-5610 www.GCHattorneys.com May 22, 2015 SENT VIA E-MAIL & OVERNIGHT TMAIL San Luis Obispo Police Department Attn: Tera Rapp, Custodian of Records 1042 Walnut Street, San Luis Obispo, CA 93401 Trapp@slocity.org RE: California Public Records Act Request Dear Tera Rapp: Chris L. Gaspard Kasey A. Castillo Brandi L. Harper Michael D. McCoy Joseph N, Bolander Steven D. Sanchez Astrid G. Alfonso Miicole A. Naleway Of Counsel Nicole F. Winter This letter serves as a written request for records under the California Public Records Act at Government Code §6250, et seq. Pursuant to Government Code §6253(b), upon the receipt of this request you shall promptly make available to the undersigned the below requested documents: 1. Any and all emails, memoranda, correspondence, between any members of the San Luis Obispo Police Department, or City of San Luis Obispo, relating to the investigation, discipline, or termination of Kevin Waddell (dates: beginning 1/2013 through 10/1/2014); 2. Any and all instant message communications via MDC on 10/19/13 pertaining to Kevin Waddell, under the login of "admin" or "Pfarr". Pursuant to Government Code §6253(c), you shall determine and notify this Office within ten (10) days of this request whether the request seeks copies of discloseable records. Thank you for your time and consideration in this matter. If you have any questions, please feel free to contact our office at (909) 466-5600 or at Kasey@GCHattomeys.com. Sincerely, GASPARD CASTELLO HARPER, APC AZ71 Kasey A. Castillo I Partner Attorneys for Kevin Waddell Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 899 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FORCOURT USEOM.y Kasey A. Castillo (SBN 236690) 3333 Concours Street, Ste 4100, Ontario, CA 91764 TELEPHONE NO: 909-466-5600 FAX NO: 909-466-5610 E-MAILADORESS. Kasey; Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 900 PLAINTIFF/PETITIONER: Kevin Waddell DEFENDANT/RESPONDENT: City of San Luis Obispo SU13P-002 CASE NUMBER ~ 4 ARBITRATION The production of the documents, electronically stored information, or other things sought by the subpoena on page one is supportedby (check one): the attached affidavit or Q the following declaration: DECLARATION IN SUPPORT OF CIVIL SUBPOENA (DUCES TECUM) FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS, ELECTRONICALLY STORED INFORMATION, AND THINGS AT TRIAL OR HEARING Code Civ. Proc., §§ 1985,1987.5) I, the undersigned, declare I am the = plaintiff defendant = petitioner 0 respondent 0 attorney for (specify): Kevin Waddell other (specify): Appellantintheabove -entitled action. 2. The witness has possession or control of the documents, electronically stored information, or other things listed below, and shall produce them at the time and place speciffad kn the Civil Subpoena fnr Personal Appearance and Production of Records at Trial or Hearing on page one of this form (specify the exact documents or other things to be produce: d efectronicady storedinformationisdemanded, the form or forms in which each type of irlformation is to be produced may be specified): Any and all emails, memoranda, correspondence, between any members of the San Luis Obispo Police Department, or City of San Luis Obispo, relating to the investigation, discipline, or termination of Kevin Waddell (dates: beginning 1/2013 through 10/1/2014); any and all instant message communications via MDC on 10/ 19/13 pertaining to Kevin Waddell, under the login of "admin" or "Pfarr". 0 Continued on Attachment 2, 3, Good cause exists for the production of the documents, electronically stored information, or other things described in paragraph 2forthefollowingreasons: The requested documents and/or information is material to assist in a fair and effective presentation at an Arbitration hearing regarding Kevin Waddell's termination, 0 Continued on Attachment 3. 4. The documents, electronically stored information, or other things described in paragraph 2 are material to the issues involved in thiscaseforthefollowingreasons: The requested documents and/or information is material to assist in a fair and effective presentation at an Arbitration hearing regarding Kevin Waddell's termination, including but not limited to the presentation of affirmative defenses. 0 Continued an Attachment 4. 1 declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct Date: May 22, 2015 Kasev A. Castillo TYPE OR PRINT NAME)ISNG NATURE OF _ SUBPOENAING PARTY © ATTORNEY FOR SUBPOENAING PARTY) Request for Accommodations Assistive listening systems, computer-assisted real-time captioning, or sign language interpreter services are available if you ask at least five days before the date on which you are to appear. Contact the clerk's office or go to www.courts.ca.govlforms for Request for Accommodations by Persons With Disabilities and Response (form MC -410). Civil Code, § 54.8.) SUSP-= IRev Januuy 1 20121 Proof of service on v>,I— I, uvi.L;a 1 r—um1 Tar- rersonal Appearance end Pogo 2or3 Production of Documents, Electronically Stored Information, and Things at Trial or Hearing and DECLARATION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 901 PLAiWFFIPETITIONER: Bevin Waddell DEFENDANT/RESPONDENT: City Of San Luis Obispo SUBP-002 CASE NUMBER ARBITRATION PROOF OF SERVICE OF CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and Production of Documents, Electronically Stored Information, and Things at Trial or Hearing and DECLARATION t 1 served this Civil Subpoena (Duces Tecum) for Personal Appearance and Production -&Documents, Electronically Stored Information, and Things at Trial or Hearing and Declaration by personally delivering a copy to the person served as follows: a. Person served (name): San Luis Obispo Police Department, Records Department b. Address where served: 1042 Walnut Street, San Luis Obispo, CA 93401 c. Date of delivery: d Time of delivery: e. Witness fees (check one): t) were offered or demanded and paid. Amount:.... $ 15.00 2) 0 were not demanded or paid. f. Fee for service: 2. 1 received this subpoena for service on (date): 3. Person serving: a. Q Not a registered California process server b. California sheriff or marshal. c. Registered California process server. d Q Employee or independent contractor of a registered California process server. e. Exempt from registration under Business and Professions Code section 22350(b). f Registered professional photocopier. 9• EE Exempt from registration under Business and Professions Code section 22451. h. Name, address, telephone number, and, if applicable, county of registratlon and number. Nancy Adams Gaspard Castillo Harper, APC 3333 Concours Street, Ste 4-4100 Ontario, CA 91764 909)466-5600 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: 22, 2015 dv (SGNATURE) For California sheriff or marshal use only) I certify that the foregoing is true and correct. Date: is ONATURE) SUSP-MfRw 3enrry 1.2012] CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and Page ]Mi Production of Documents, Electronically Stored Information, and Things at Trial or Hearing and DECLARATION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 902 APPELLANT' S EXHIBIT 662" Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 903 Nicole Naleway From: Kasey Castillo Sent: Thursday, July 16, 2015 4:32 PM To: Nicole Naleway Subject: Fwd: Waddell v. City of San Luis Obispo Attachments: image001.png Kasey A. Castillo GASPARD CASTILLO HARPER, APC sent from my iPhone--- please excuse typos and brevity Begin forwarded message: From: "Ansolabehere, Jon" <JAnsolabehere@slocity.ore> Date: May 29, 2015 at 11:57:30 AM PDT To: Kasey Castillo <kasev@GCHattorneys.com> Cc: "White, Kelly" <kwhite@slocity.ore> Subject: RE: Waddell v. City of San Luis Obispo Hi Kasey, Given the fact that you could submit additional PRA requests, etc. I have no problem to treating this as a preliminary disclosure and going from there. Thank you. Jon From: Kasey Castillo fmaiIto: kasey(&GCHattorneys.coml Sent: Friday, May 29, 2015 11:36 AM To: Ansolabehere, Jon Cc: White, Kelly Subject: RE: Waddell v. City of San Luis Obispo In reviewing this once more, I think this is a good start, but I don't want to foreclose what we are looking for. I understand this may be burdensome, but it's amazing that there are 4,000 emails about my client. Can we agree to a preliminary disclosure based on my previous email response and go from there? Kasey From: Ansolabehere, Jon [mailto:JAnsolabehere@slocity.orel Sent: Friday, May 29, 2015 9:37 AM To: Kasey Castillo Cc: White, Kelly Subject: Waddell v. City of San Luis Obispo Dear Ms. Castillo, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 904 The City of San Luis Obispo is in receipt of your May 22, 2015 Public Records Act ("PRA") request and Subpoena Duces Tecum ("SDT") regarding the above matter. The PRA and SDT are identical to one another and both seek the following records: 1. Any and all emails, memoranda, correspondence, between any members (sic) of the San Luis Obispo Police Department, or City of San Luis Obispo, relating to the investigation, discipline, or termination of Kevin Waddell (dates: beginning 1/2013 through 10/1/2014); 2. Any and all instant message communications via MDC on 10/19/13 pertaining to Kevin Waddell, under the login of "admin" or `Pfarr': I wanted to contact you to see if we can agree on the City's search parameters regarding your request for e-mails. A search of 'Waddell" in the city's database for the referenced time period produces a little over 4,000 e-mails. It will take us a considerable amount of time to review each of the 4,000 e-mails to determine if they are responsive to your request, and if so, if an exemption or objection applies. We can narrow the scope with additional search terms but we wanted to make sure that you agree as to what those search terms are. Please confirm if you agree to the following search terms: 'Waddell + investigation"; 'Waddell + discipline"; 'Waddell termination"; and `Waddell + personnel". Please let us know if you have any questions or comments. Thank you. Jon Jon Ansolabehere Assistant City Attorney City Attorney's Office 990 Palm Street, San Luis Obispo, CA 93401-3249 E JAnsolabehere@slocitv.org slocity.org Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 905 Nicole Naleway From: Kasey Castillo Sent: Thursday, July 16, 2015 12:35 PM To: Nicole Naleway Subject: Fwd: Waddell v. City of San Luis Obispo Attachments: image001.png Kasey A. Castillo GASPARD CASTILLO HARPER, APC sent from my iPhone--- please excuse typos and brevity Begin forwarded message: From: "Ansolabehere, Jon" <JAnsolabehere@slocity.org> Date: July 1, 2015 at 8:16:48 AM PDT To: "Astrid @gchattorneys.com" <Astrid@gchattornevs.com>, Kasey Castillo kasev@GCHattorneys.com> Cc: "White, Kelly" <kwhite@slocity.org>, "Gregory P. Palmer" <gpp@iones-maver.com> Subject: RE: Waddell v. City of San Luis Obispo Dear Ms. Alfonso, The City is in receipt of your Subpoena Duces Tecum ("SDT") dated June 17, 2015 regarding the above referenced matter. The SDT seeks the following: Any and all e-mails from January 2013 through October 31, 2014 referencing the terms including and/or) CAT, C.A.T., downtown foot patrol overtime or OT (O. T. from any to any and all San Luis Obispo Police Department employees. The City performed a search based on the parameters described in your SDT and had 2,216 hits for O.T./OT, 1,755 hits for C.A.T./CAT and 6 hits for "downtown foot patrol overtime". It will take us a considerable amount of time to review each of the 3,977 e-mails to determine if an exemption or objection applies. Please let us know as soon as possible if we can narrow the scope of your request (i.e. make the request specific between certain officers, dates, etc.). Thank you. Jon From: Kasey Castillo[ma iIto: kasey(abGCHattorneys.com] Sent: Friday, May 29, 2015 11:36 AM To: Ansolabehere, Jon Cc: White, Kelly Subject: RE: Waddell v. City of San Luis Obispo In reviewing this once more, I think this is a good start, but I don't want to foreclose what we are looking for. I understand this may be burdensome, but it's amazing that there are 4,000 emails about my client. Can we agree to a preliminary disclosure based on my previous email response and go from there? Kasey Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 906 From: Ansolabehere, Jon[mailto:JAnsolabehere@slocity.orgl Sent: Friday, May 29, 2015 9:37 AM To: Kasey Castillo Cc: White, Kelly Subject: Waddell v. City of San Luis Obispo Dear Ms. Castillo, The City of San Luis Obispo is in receipt of your May 22, 2015 Public Records Act ("PRA") request and Subpoena Duces Tecum ("SDT") regarding the above matter. The PRA and SDT are identical to one another and both seek the following records: 1. Any and all emails, memoranda, correspondence, between any members (sic) of the San Luis Obispo Police Department, or City of San Luis Obispo, relating to the investigation, discipline, or termination of Kevin Waddell (dates: beginning 1/2013 through 10/1/2014); 2. Any and all instant message communications via MDC on 10/ 19/ 13 pertaining to Kevin Waddell, under the login of "admin" or `Pfarr': I wanted to contact you to see if we can agree on the City's search parameters regarding your request for e-mails. A search of 'Waddell" in the city's database for the referenced time period produces a little over 4,000 e-mails. It will take us a considerable amount of time to review each of the 4,000 e-mails to determine if they are responsive to your request, and if so, if an exemption or objection applies. We can narrow the scope with additional search terms but we wanted to make sure that you agree as to what those search terms are. Please confirm if you agree to the following search terms: 'Waddell + investigation"; 'Waddell + discipline"; 'Waddell termination"; and "Waddell + personnel". Please let us know if you have any questions or comments. Thank you. Jon Jon Ansolabehere Assistant City Attorney City Attorney's Office 990 Palm Street, San Luis Obispo, CA 93401-3249 E JAnsolabehere@slocity.org slocity.org Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 907 City Attorney's Office U1 2 June 3, 2015 Via E -Mail and US Mail Kasey Castillo Gaspard Castillo Harper, APC 3333 Concours Street, Building 4, Ste. 4100 Ontario, CA 91764 RE: Kevin Waddell v. City of San Luis Obispo Public Records Act Request/ Subpoena Duces Tecum Dear Ms. Castillo, The City of San Luis Obispo ("City") is in receipt of your May 22, 2015 Public Records Act ("PRA") request and Subpoena Duces Tecum ("SDT") regarding the above matter. As indicated in my prior e-mail to you the PRA and SDT are identical to one another and both seek the following records: I. Any and all emails, memoranda, correspondence, between any members (sic) of the San Luis Obispo Police Department, or City of San Luis Obispo, relating to the investigation, discipline, or termination of Kevin Waddell (dates: beginning 1/2013 through 1011/2014); 2. Any and all instant message communications via MDC on 10/19/13 pertaining to Kevin Waddell, under the login of "admin" or "Pfarr". You will recall that we preliminary agreed to the following search parameters: "Waddell investigation"; "Waddell + discipline"; "Waddell + termination"; and "Waddell + personnel". As you know, pursuant to Government Code section 6253(c), within ten days of receiving a request for public records the City has an obligation to inform you whether records will be disclosed. 1 wanted to let you know that the City is in the process of reviewing documents responsive to your requests and that all non-exempt records will be provided within the time frame set forth in the SDT. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 908 I do want to clarify one comment you made in your May 29, 2015 e-mail to me. You indicated that "...it's amazing that there are 4,000 emails about my client." The 4,000 e- mails that I referenced were not all "about" your client. Rather, there were 4,000 e-mails in our initial search with your client's name referenced in the "To:", ' "From:" line, or within the body of the e-mail itself. This is why I reached out to you to agree on our search parameters. I apologize for any misunderstanding. Please let us know if you have any questions or comments. Thank you. sere Assistant City Attorney Cc: J. Christine Dietrick, City Attorney Anthony Mejia, City Clerk Police Records Supervisor 1 This includes "PD ALL". Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 909 May 22, 2015 GASPARD CASTILLO HARPER A PROFESSIONAL CORPORATION SENT VIA E-MAIL & OVERNIGHT MAIL San Luis Obispo Police Department Attn: Tera Rapp, Custodian of Records 1042 Walnut Street, San Luis Obispo, CA 93401 Trapp @ slocity.org 3333 Concours Street, Building 4., Suite 1.100 Ontario, California 91761 Tel: (909),1,66-5600 1 Fax: 909-466-5610 www. GCIIattorneys.corn RE: California Public Records Act Request Dear Tera Rapp: Chris L. Gaspard Kasey A. Castillo Brandi L. Harper Michael D. McCoy Joseph N. Bolander Steven D. Sanchez Astrid G. Alfonso Nicole A. Naleway Of Counsel Nicole F. Winter This letter serves as a written request for records under the California Public Records Act at Government Code §6250, et seq. Pursuant to Government Code §6253(b), upon the receipt of this request you shall promptly make available to the undersigned the below requested documents: 1. Any and all emails, memoranda, correspondence, between any members of the San Luis Obispo Police Department, or City of San Luis Obispo, relating to the investigation, discipline, or termination of Kevin Waddell (dates: beginning 1/2013 through 10/1/2014); 2. Any and all instant message communications via MDC on 10/ 19/13 pertaining to Kevin Waddell, under the login of "admin" or "Pfau". Pursuant to Govemment Code §6253(c), you shall determine and notify this Office within ten (10) days of this request whether the request seeks copies of discloseable records. Thank you for your time and consideration in this matter. If you have any questions, please feel free to contact our office at (909) 466-5600 or at Kasey@GCHattomeys.com. Sincerely, GASPARD CASTILLO HARPER, APC Kasey A. Castillo I Partner Attorneys for Kevin Waddell Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 910 SUBP-002 ATTORNEY OR PARTY 'PATHOUf A' T ORNEY (Flame, Stale Barnumber and address): FOR COURT USE ONLY Kasey A. Castillo (SBN 236690) 3333 Concours Street. Ste 4100, Ontario, CA 91764 TELEPHONE NO: 909-466-5600 FAX NO : 909-466-5610 E-MAIL ADDRESS: Kaseya.(.GCHattorneys.com ATTORNEY FOR (Name): Kevin Waddell NAME OF COURT: In the Matter of Kevin Waddell STREET ADDRESS: v. MAILING ADDRESS: City of San LUIS Obispo CITY AND ZIP CODE: BRANCH NAME: PLAINTIFF/ PETITIONER: Kevin Waddell DEFENDANT/ RESPONDENT: City of San Luis Obispo CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and CASE NUMBER Production of Documents, Electronically Stored Information, and Things at ARBITRATION Trial or Hearing and DECLARATION THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and telephone number of witness, if known): San Luis Obispo Police Department - Records- 1042 Walnut Street, San Luis Obispo, CA 93401 1 YOU ARE ORDERED TO APPEAR AS A WITNESS in this action at the date, time, and place shown in the box below UNLESS your appearance is excused as indicated in box 3b below or you make an agreement with the person named In item 4 below. a. Date: June 15, 2015 Time: 8:OOam Dept.: 0 Div.: [ Room: 1b. Address: G 1z1rd Castillo I -lar A RC.3. i t i nr} )ittttt iQ. f- ,ti, .I 7fi43 ,4 d)afrS 4trr t eta' 4 ,Lt 2. IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA AS A CUSTODIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER CODE OF CIVIL PROCEDURE SECTION 1985.3 OR 1985.6 AND A MOTION TO QUASH OR AN OBJECTION HAS BEEN SERVED ON YOU, A COURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OR EMPLOYEE AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED TO PRODUCE CONSUMER OR EMPLOYEE RECORDS, 3. YOU ARE (item a orb must be checked): a. = Ordered to appear in person and to produce the records described in the declaration on page two or the attached declaration or affidavit. The personal attendance of the custodian or other qualified witness and the production of the original records are required by this subpoena. The procedure authorized by Evidence Code sections 1560(b), 1561, and 1562 will not be deemed sufficient compliance with this subpoena. b. ELI Not required to appear in person if you produce (i) the records described in the declaration on page two or the attached declaration or affidavit and (ii) a completed declaration of custodian of records in compliance with Evidence Code sections 1560, 1561, 1562, and 1271. (1) Place a copy of the records in an envelope (or other wrapper). Enclose the original declaration of the custodian with the records. Seal the envelope. (2) Attach a copy of this subpoena to the envelope or write on the envelope the case name and number, your name; and the date, time, and place from item 1 in the box above. 3) Place this first envelope in an outer envelope, seal it, and mail it to the clerk of the court at the address in item 1. 4) Mail a copy of your declaration to the attorney or party listed at the top of this form. 4. IF YOU HAVE ANY QUESTIONS ABOUT THE TIME OR DATE YOU ARE TO APPEAR, OR IF YOU WANT TO BE CERTAIN THAT YOUR PRESENCE IS REQUIRED, CONTACT THE FOLLOWING PERSON BEFORE THE DATE ON WHICH YOU ARETOAPPEAR: a. Name of subpoenaing party or attorney: Kasey A. Castillo b. Telephone number: 909-466-5600 5, Witness Fees: You are entitled to witness fees and mileage actually traveled both ways, as provided by law, if you request them at the time of service_ You may request them before your scheduled appearance from the person namPri in aPm A DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY. Date issued: May 22, 2015 Kasey A. Castillo , TYPE OR PRINT NAME) IGNATJRE OF PERSON ISSUING SUBPOENA) Attorne s for Kevin Waddell Declaration in support of subpoena on reverse) (TITLE) Page 1 or 1 Form Adopted for Mandatory Use CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and Coda orCivitPracedure, Judi002[ ReJanuaryCaunoil of 1,nia production of Documents Electronically Stored Information, and Things at §1985 elseq, SUBP oal Caen January T, n012j + Trial or Hearing and DECLARATION www courts ca Dov Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 911 PLAINTIFFIPETITIONER: Kevin Waddell DEFENDANTIRESPON DENT: C i ty of San Luis Obispo CASs= NUMBER ARBITRATION The production of the documents, electronically stored information, or other things sought by the subpoena on page one is supportedby (check one): the attached affidavit or r the following declaration: DECLARATION IN SUPPORT OF CIVIL SUBPOENA (DUCES TECUM) FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS, ELECTRONICALLY STORED INFORMATION, AND THINGS AT TRIAL OR HEARING Code Civ. Proc., §§ 1985,1987.5) I, the undersigned, declare I am the 0 plaintiff 1771 defendant 0 petitioner = respondent 0 attorney for (specify): Kevin Waddell 0 other (specify): Appellantintheabove -entitled action. 2. The witness has possession of control of the documents, electronically stored information. or other things listed below, and shall produce them at the time and place specified in the Civil Subpoena for Personal Appearance and Production of Records at Trial or Hearing on page one of this form (specifythe exact documents or other things to be produce; if electronically stored informadon is demanded, the form or forms in which each type of information is tc be produced may be specified): Any and all emails, memoranda, correspondence, between any members of the San Luis Obispo Police Department, or City of San Luis Obispo, relating tc the investigation, discipline, or termination of Kevin Waddell (dates: beginning 1/2013 through 10/1/2014); any and all instant message communications via MDC on 10/19/ 13 pertaining to Kevin Waddell, under the login of "admin" or "Pfarr". 0 Continued on Attachment 2. 3. Good cause exists for the production of the documents, electronically stored information, or other things described in paragraph 2forthe following reasons: The requested documents and/or information is material to assist in a fair and effective presentation at an Arbitration hearing regarding Kevin Waddell's termination. Continued on Attachment 3. 4. The documents, electronically stored information, or other things described in paragraph 2 are material to the issues involved in thiscaseforthefollowingreasons: The requested documents and/or information is material to assist in a fair and effective presentation at an Arbitration hearing regarding Kevin Waddell's termination, including but not limited to the presentation of affirmative defenses. 0 Continued on Attachment 4. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: May 22, 2015 Kase 1 A. Cast iIIo TYPE OR PRINT NA IEj . TURE OF SUBPOENAING PARTY ATTORNEY FCR SUBPOENAING PARTY) Request for Accommodations Assistive listening systems, computer-assisted real-time captioning, or sign language interpreter services are available if you ask at least five days before the date on which you are to appear. Contact the clerk's office or go to www.courts.ca.gov/forms for Request for Accommodations by Persons With Disabilities and Response (form MC -410). Civil Code, § 54.8.) Proof of service on page 3) suaa-0c2(Rev. January 1, 2012) CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and page 2or3 Production of Documents, Electronically Stored information, and Things at Trial or Hearing and DECLARATION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 912 PLAI NTIFFlPETITIONER: Kevin Waddell DEFENDANT!RESPONDENT: City of San Luis Obispo SU BP -002 CASE NUMBER: ARBITRATION PROOF OF SERVICE OF CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and Production of Documents, Electronically Stored Information, and Things at Trial or Hearing and DECLARATION I served this Civil Subpoena (Duces Tecum) for Personal Appearance and Production. of Documents, Electronically Stored Information, and Things at Trial or Nearing and Declaration by personally delivering a copy to the person served as follows: a. Person served (name): San Luis Obispo Police Department, Records Department b. Address where served: 1042 Walnut Street, San Luis Obispo, CA 93401 c. Date of delivery: d, Time of delivery: e. Witness fees (check one): 1) were offered or demanded and paid. Amount:...... $ 15.00_ 2) ® were not demanded or paid. f. Fee for service: $ 2 1 received this subpoena for service on (date): 3. Person serving: a. Not a registered California process server. b. ® California sheriff or marshal. c. 0 Registered California process server d. Employee or independent contractor of a registered California process server. Is. 0 Exempt from registration under Business and Professions Code section 22350(b). f. Registered professional photocopier. 9, 0 Exempt from registration under Business and Professions Code section 22451. h. Name, address, telephone number, and, if applicable, county of registration and number: Nancy Adams Gaspard Castillo Harper, APC 3333 Concours Street, Ste 4-4100 Ontario, CA 91764 909) 466-5600 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: 22, 2015 SIGNATUREI For California sheriff or marshal use only) I certify that the foregoing is true and correct. Date: SIGNATURE) SUBP-002[Rev January 1, 20121 CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and Papa aora Production of Documents, Electronically Stored Information, and Things at Trial or Hearing and DECLARATION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 913 May 22, 2015 GASPARD CASTILLO HARPER SENT VIA E-MAIL & OVERNIGHT MAIL San Luis Obispo Police Department Attn: Tera Rapp, Custodian of Records 1042 Walnut Street, San Luis Obispo, CA 93401 Trapp@slocity.org A PROFESSIONAL CORPORATION 3333 Concours Street, Building 4, Suite 4,100 Ontario, California 91764 Tel: (909) 466-5600 I Fax: 909-4,66-5610 www. GCI Iattorneys.corn RE: California Public Records Act Request Dear Tera Rapp: Chris L. Gaspard Kasey A. Castillo Brandi L. Harper Michael D. McCoy Joseph N. Bolander Steven D. Sanchez Astrid G. Alfonso Nicole A. Naleway OfCounsel Nicole F. Winter This letter serves as a written request for records under the California Public Records Act at Government Code §6250, et seq. Pursuant to Government Code §6253(b), upon the receipt of this request you shall promptly make available to the undersigned the below requested documents: 1. Any and all emails, memoranda, correspondence, between any members of the San Luis Obispo Police Department, or City of San Luis Obispo, relating to the investigation, discipline, or termination of Kevin Waddell (dates: beginning 1/2013 through 10/1/2014); 2. Any and all instant message communications via MDC on 10/19/13 pertaining to Kevin Waddell, under the login of "admin" or "Pfarr". Pursuant to Government Code §6253(c), you shall determine and notify this Office within ten (10) days of this request whether the request seeks copies of discloseable records. Thank you for your time and consideration in this matter. If you have any questions, please feel free to contact our office at (909) 466-5600 or at Kasey@GCHattomeys.com. Sincerely, GASPARD CASTILLO HARPER, APC C F Z Kasey A. Castillo I Partner Attorneys for Kevin Waddell Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 914 SUBP-00 ATTORNEY OR PARTY NATHOUI ATTORNEY(Name, Stale Bar rumber and address): FORCOURTUSEONLY Kasey A. Castillo (SBN 236690) 3333 Concours Street, Ste 4100, Ontario, CA 91764 TELEPHONE No.: 909-466-5600 FAX NO: 909-466-5610 E-MAIL AODRE -: Kasey a,GCHattorneys.com ATTORNEY FOR (Narne): Kevin Waddell NAME OF COURT: In the Matter of Kevin Waddell STREETAODRESS: v MA11NG,4DDRE11: City of San Luis Obispo CITY AND 21P CODE: BRANCH NAME: PLAINTIFF/ PETITIONER: Kevin, Waddell DEFENDANT/ RESPONDENT: City of San Luis Obispo CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and CASE NUMBER Production of Documents, Electronically Stored Information, and Things at ARBITRATION Trial or Hearing and DECLARATION THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and telephone number of witness, if known): San Luis Obispo Police Department - Records- 1042 Walnut Street, San Luis Obispo, CA 93401 1. YOU ARE ORDERED TO APPEAR AS A WITNESS in this action at the date, time, and place shown in the box below UNLESS your appearance is excused as indicated in box 3b below or you make an agreement with the person named in item 4 below. a. Date: June 15, 2015 Time: 8:00am Dept.: 0 Div.; Room: b. Address: C 11 2. IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA AS A CUSTODIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER CODE OF CIVIL PROCEDURE SECTION 1985.3 OR 1985.6 AND A MOTION TO QUASH OR AN OBJECTION HAS BEEN SERVED ON YOU, A COURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OR EMPLOYEE AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED TO PRODUCE CONSUMER OR EMPLOYEERECORDS. 3. YOU ARE (item a or b must be checked): a• Ordered to appear in person and to produce the records described in the declaration on page two or the attached declaration or affidavit. The personal attendance of the custodian or other qualified witness and the production of the original records are required by this subpoena. The procedure authorized by Evidence Code sections 1560(b), 1561, and 1562 will not be deemed sufficient compliance with this subpoena. b. Not required to appear in person if you produce (i) the records described in the declaration on page two or the attached declaration or affidavit and (ii) a completed declaration of custodian of records in compliance with Evidence Code sections 1560, 1561, 1562, and 1271. (1) Place a copy of the records in an envelope (or other wrapper). Enclose the original declaration of the custodian with the records. Seal the envelope. (2) Attach a copy of this subpoena to the envelope or write on the envelope the case name and number, your name; and the date, time, and place from item 1 in the box above. 3) Place this first envelope in an outer envelope, seal it, and mail it to the clerk of the court at the address in item 1. 4) Mail a copy of your declaration to the attorney or party listed at the top of this form. 4. IF YOU HAVE ANY QUESTIONS ABOUT THE TIME OR DATE YOU ARE TO APPEAR, OR IF YOU WANT TO BE CERTAIN THAT YOUR PRESENCE IS REQUIRED, CONTACT THE FOLLOWING PERSON BEFORE THE DATE ON WHICH YOU ARETOAPPEAR: a. Name of subpoenaing party or attorney: Kasey A. Castillo b. Telephone number: 909-466-5600 5, Witness Fees: You are entitled to witness fees and mileage actually traveled both ways, as provided by law, if you request them at the time of service. You may request them before your scheduled appearance from the person named in item 4. DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY. Date issued: May 22, 2015 ase A. Castillo 0 — TYPE OR PRINT NAME) FGNATJRE OF PERSON ISSUING SUBPOENA) Attomeys for Kevin Waddell Declaration in support of subpoena on reverse) ITiTILE) P;p4 7 of 3 Foun Adapted for Mandatory Use CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance andJudiGalCouncilofCaliforniaPP Coda of Civil Procedure, SUBP-002[ Rev January 1.0121 Production of Documents, Electronically Stored Information, and Things at 519e5atsec, Trial or Hearing and DECLARATION www-cc"rtsca Gov Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 915 PLAINTIFF/PETITIONER: Kevin Waddell DEFENDANT/RESPONDENT:City of San LUIS Obispo SUSP-_002 CASE NUMBER ARBITRATION The production of the documents, electronically stored information, or other things sought by the subpoena on page one is supportedby (check one): the attached affidavit or r the following declaration: DECLARATION IN SUPPORT OF CIVIL SUBPOENA (DUCES TECUM) FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS, ELECTRONICALLY STORED INFORMATION, AND THINGS AT TRIAL OR HEARING Code Civ. Proc., §§ 1985,1987.5) I, the undersigned, declare I am the = plaintiff Q defendant = petitioner 0 respondent attorney for (specify): Kevin Waddell 0 other (specify): Appellantintheabove -entitled action. 2. The witness has possession or control of the documents, electronically stored information, or other things listed below, and shall produce them at the time and place specified in the Civil Subpoena for Personal Appearance and Production of Records at Trial or Hearing on page one of this form (specify the exact documents or other things to be produce; if electronically storedinformationisdemanded, the form or forms in which each type of information is to be produced may be sneciffed)- Any and all emails, memoranda, correspondence, between any members of the San Luis Obispo Police Department, or City of San Luis Obispo, relating to the investigation, discipline, or termination of Kevin Waddell (dates: beginning 1/2013 through 10/1/2014); any and all instant message communications via MDC on 10/19/13 pertaining to Kevin Waddell, under the login of "admin" or "Pfarr". 0 Continued on Attachment 2. 3. Good cause exists for the production of the documents, electronically stored information, or other things described in paragraph 2forthefollowingreasons: The requested documents and/or information is material to assist in a fair and effective presentation at an Arbitration hearing regarding Kevin Waddell's termination. 0 Continued on Attachment 3. 4. The documents, electronically stored information, or other things described in paragraph 2 are material to the issues involved in thiscaseforthefollowingreasons: The requested documents and/or information is material to assist in a fair and effective presentation at an Arbitration hearing regarding Kevin Waddell's termination, including but not limited to the presentation of affirmative defenses. 0 Continued on Attachment 4 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: May 22, 2015 Kasev A. Castillo TYPE OR PRINT NAME) i$IG,TIii'T OF SUBPOENAING PARTY © ATTORNEY FOR SUBPOENAING PARTY) Request for Accommodations Assistive listening systems, computer-assisted real-time captioning, or sign language interpreter services are available if you ask at least five days before the date on which you are to appear, Contact the clerk's office or go to www. courts.ca.gov/forms for Request for Accommodations by Persons With Disabilities and Response (form MC -410). Civil Code, § 54.8.) Proof of service on page 3) SUSP-002 [Rev. January 1, 20121 CIVIL SUBPOENA (DUCT=S TECUM) for Personal Appearance and Page z of s Production of Documents, Electronically Stored Information, and Things at Trial or Hearing and DECLARATION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 916 PLAINTIFF/PETITIONER: Kevin Waddell DEFENDANT!RESP ONDENT: City of San Luis Obispo SU BP -002 CASE NJMBER: ARBITRATION PROOF OF SERVICE OF CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and Production of Documents, Electronically Stored Information, and Things at Trial or Hearing and DECLARATION 1. 1 served this Civil Subpoena (Duces Tecum) for Personal Appearance and Production -of Documents, Electronically Stored Information, and Things at Trial or Hearing and Declaration by personally delivering a copy to the person served as follows: a. Person served (name): San Luis Obispo Police Department, Records Department b. Address where served: 1042 Walnut Street, San Luis Obispo, CA 93401 c. Date of delivery: d. Time of delivery: e. Witness fees (check one): 1) were offered or demanded and paid. Amount:...... $ 15.00 2) ® were not demanded or paid. f. Fee for service: $ 2. 1 received this subpoena for service on (date): Person serving: a. ® Not a registered California process server. b. ® California sheriff or marshal. c. 0 Registered California process server. d, Employee or independent contractor of a registered California process server e. Exempt from registration under Business and Professions Code section 22350(b). f. Registered professional photocopier. 9 0 Exempt from registration under Business and Professions Code section 22451. h. Name, address, telephone number, and, if applicable, county of registration and number: Nancy Adams Gaspard Castillo Harper, APC 3333 Concours Street, Ste 4-4100 Ontario, CA 91764 909) 466-5600 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: 22.2015 ' F SIGNATURE! For California sheriff or marshal use only) I certify that the foregoing is true and correct. Date: 0 SIGNATURE) SUBP-002[Rev January 1, 20121 CIVIL SUBPOENA (DUCES TECUM) for Personal Appearance and Page 3of3 Production of Documents, Electronically Stored Information, and Things at Triai or Hearing and DECLARATION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 917 APPELLANT' S EXHIBIT 443" Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 918 Nicole Naleway From: Kasey Castillo Sent: Thursday, July 16, 2015 4:19 PM To: Nicole Naleway Subject: Fwd: Waddell v. City of San Luis Obispo Attachments: image001.png My response to deputy city attorney narrowing, and palmers response Kasey A. Castillo GASPARD CASTILLO HARPER, APC sent from my iPhone--- please excuse typos and brevity Begin forwarded message: From: "Gregory P. Palmer" <gpp@Jones -rnayer.com> Date: July 3, 2015 at 8:11:58 AM PDT To: Kasey Castillo <kasey@GCHattomeys.com> Cc: "Ansolabehere, Jon" <JAnsolabehere@slocity.org>, Astrid Alfonso astrid@GCHattorneys.com>, "White, Kelly" <kwhite@slocity.org> Subject: Re: Waddell v. City of San Luis Obispo Kasey: We are doing a motion to quash those subpoenaes Greg Sent from my iPad On Jul 3, 2015, at 12:34 AM, "Kasey Castillo" kasev@GCHattomeys.com<mailto:kasey@GCHattomeys.com>> wrote: How about starting with downtown foot patrol and cat emails to start? Thanks Kasey A. Castillo GASPARD CASTILLO HARPER, APC sent from my iPhone--- please excuse typos and brevity On Jul 1, 2015, at 8:17 AM, Ansolabehere, Jon JAnsolabehere@slocity•or <mailto:JAnsolabehere@slocity.org>> wrote: Dear Ms. Alfonso, The City is in receipt of your Subpoena Duces Tecum ("SDT") dated June 17, 2015 regarding the above referenced matter. The SDT seeks the following: Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 919 Any and all e-mails from January 2013 through October 31, 2014 referencing the terms including and/or) CAT, C.A.T., downtown foot patrol overtime or OT (O.T. from any to any and all San Luis Obispo Police Department employees. The City performed a search based on the parameters described in your SDT and had 2,216 hits for O.T./OT, 1,755 hits for C.A.T./CAT and 6 hits for "downtown foot patrol overtime". It will take us a considerable amount of time to review each of the 3,977 e-mails to determine if an exemption or objection applies. Please let us know as soon as possible if we can narrow the scope of your request (i.e. make the request specific between certain officers, dates, etc.). Thank you. Jon From: Kasey Castillo [mailto:kasev@GCHattorneys.com] Sent: Friday, May 29, 2015 11:36 AM To: Ansolabehere, Jon Cc: White, Kelly Subject: RE: Waddell v. City of San Luis Obispo In reviewing this once more, I think this is a good start, but I don't want to foreclose what we are looking for. I understand this may be burdensome, but it's amazing that there are 4,000 emails about my client. Can we agree to a preliminary disclosure based on my previous email response and go from there? Kasey From: Ansolabehere, Jon[mailto:JAnsolabehere@slocity.org] Sent: Friday, May 29, 2015 9:37 AM To: Kasey Castillo Cc: White, Kelly Subject: Waddell v. City of San Luis Obispo Dear Ms. Castillo, The City of San Luis Obispo is in receipt of your May 22, 2015 Public Records Act ("PRA") request and Subpoena Duces Tecum ("SDT") regarding the above matter. The PRA and SDT are identical to one another and both seek the following records: 1. Any and all emails, memoranda, correspondence, between any members (sic) of the San Luis Obispo Police Department, or City of San Luis Obispo, relating to the investigation, discipline, or termination of Kevin Waddell (dates: beginning 1/2013 through 10/1/2014); 2. Any and all instant message communications via MDC on 10/19/13 pertaining to Kevin Waddell, under the login of "admin" or "Pfarr". Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 920 I wanted to contact you to see if we can agree on the City's search parameters regarding your request for e-mails. A search of "Waddell" in the city's database for the referenced time period produces a little over 4,000 e-mails. It will take us a considerable amount of time to review each of the 4,000 e-mails to determine if they are responsive to your request, and if so, if an exemption or objection applies. We can narrow the scope with additional search terms but we wanted to make sure that you agree as to what those search terms are. Please confirm if you agree to the following search terms: "Waddell + investigation"; "Waddell + discipline"; Waddell + termination"; and "Waddell + personnel". Please let us know if you have any questions or comments. Thank you. Jon Jon Ansolabehere Assistant City Attorney image001.png> City Attorney's Office 990 Palm Street, San Luis Obispo, CA 93401-3249 E JAnsolabehere@slocity.org<mailto:JAnsolabehere@slgdiy org> slocity.org<http://www.slocity.org> image001.png> PRIVILEGED AND CONFIDENTIAL COMMUNICATION This electronic transmission, and any documents attached hereto, may contain confidential and/or legally privileged information. The information is intended only for use by the recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of information received in error is strictly prohibited. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 921 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 3333 Concours St., Bldg. 4, Ste. 4100, Ontario, CA 91764. On July 16, 2015, I served the following document described as APPELLANT'S OPPOSITION TO SAN LUIS OBISPO POLICE DEPARTMENT'S MOTION TO QUASH SUBPOENAS DUCES TECUM; MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action by e-mail and a true and correct copy ofthedocumentaforementionedeachofrecipientslistedbelow: Served via Overnight Mail Ontrac) San Luis Obispo Police Department 1042 Walnut Street San Luis Obispo, CA 93401 Served via Overnight Mail Ontrac and e- mail) Hearing Officer Christopher Cameron Arbitrator and Civil Service Hearing Officer c/o Southwestern Law School 3050 Wilshire Boulevard Los Angeles, CA 90010 Served via Overnight Mail Ontrac and e- mail) Greg Palmer, Counsel for San Luis Obispo Police Department 3777 North Harbor Boulevard Fullerton, CA 92835 gpp @ jones-mayer.com Served via Overnight Mail Ontrac and e- mail) City Attorney Christine Dietrick 990 Palm Street, Room 10 San Luis Obispo, CA 93401 cdietrick @ sloc ity. org I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service. I know that the correspondence was deposited with the United States Postal Service on the same day this declaration was executed in the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States mail at Ontario, California. By Personal Service, I caused such envelope to be delivered by hand to the above addressee(s). By Facsimile machine, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) X] By Electronic Mail, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) X] By Overnight Courier, I caused the above referenced document(s) to be delivered To an overnight courier (UPS) for delivery to the above addressee(s). X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. PROOF OF SERVICE A Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 922 2 3 4 5 6 7 8 oil 10 11 12 13 14 15 16 17' 18 19 20 21 22 23 24 25 26 27 28 Executed on July 16, 2015 at Ontario, California. PROOF OF SERVICE -1 Lori Padilla Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 923 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dan Dow District Attorney State Bar #237986 County of San Luis Obispo County Government Center, Room 450 San Luis Obispo, CA 93408 Telephone: (805) 781-5800 Attorney for the People of the State of California RECEIVED JUL 2 2 2015 SLO CITY ATTORNEY SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN LUIS OBISPO THE PEOPLE OF THE STATE OF CALIFORNIA, } CASE NO. 15M-04349 Plaintiff,) PEOPLE'S MOTION TO JOIN vs. ) MOTION FOR PRETRIAL DISCOVERY AMANDA DEANNE HARRIS, } ( PITCHESS) Date: July 29, 2015 Time: 1:30 p.m. ni-f-nrinnt %Dept. 7 TO THE ABOVE ENTITLED COURT, TO THE DEFENDANT AND HER ATTORNEY, JORDAN CUNNINGHAM, AND COUNSEL FOR THE CITY OF SAN LUIS OBISPO POLICE DEPARTMENT: PLEASE TAKE NOTICE that on July 29, 2015, in Department 7, at 1:30 p.m., the People will move to join in the discovery motion filed by the defendant under Pitchess v. Superior Court (1974) 11 Cal. 3d 531. The People seek to obtain identical copies of any discovery provided to the defense at and after any in camera review of the personnel records of Officer J. Walsh. Page 1 PEOPLE'S MOTION TO JOIN MOTION FOR PRETRIAL DISCOVERY ( PITCHESS) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 924 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By joining the present motion for pretrial discovery, the People are not suggesting that the records sought by the defense ought to be disclosed or that the motion should be well taken. The People are joining this motion in order to obtain the same discovery materials which may be disclosed by the court to the defense. Date: July 20, 2014 Respectfully submitted, Dan Dow District Attorney By: Nicha Quincey Deputy District Attorney Page 2 PEOPLE'S MOTION TO JOIN MOTION FOR PRETRIAL DISCOVERY (PITCHESS) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 925 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Code of Civil Procedure §1013a; CRC Rule 2006(d) STATE OF CALIFORNIA, COUNTY OF SAN LUIS OBISPO I am and at all times herein mentioned as a citizen of the United States and a resident of the County of San Luis Obispo over the age of 18 years and not a party to the within entitled action. My business address is County Government Center, Room 450, San Luis Obispo, California, 93408. On July 20, 2015, 1 served the foregoing document(s) described as: PEOPLE'S MOTION TO JOINT MOTION FOR PRETRIAL DISCOVERY (PITCHESS) PEOPLE v. HARRIS; 15M-04349) on the interested parties in this action as follows: Jordan Cunningham, Esq. Adamski Moroski Madden Cumberland Green, LLP 1948 Spring Street Paso Robles, CA 93446 By Personal Service) Jon Ansolabehere Deputy City Attorney Office of the City Attorney 990 Palm Street San Luis Obispo, CA 93401 XX] BY MAIL: I caused such envelope with postage thereon fully prepaid to be placed in the U.S. Mail at San Luis Obispo, California. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it is deposited with the U. S. Postal Service on that same day in the ordinary course of business. I am aware that upon motion of the party served, service is presumed invalid if the postal cancellation date of postage meter date is more than one day after date of deposit for mailing affidavit. BY PERSONAL SERVICE: [] I delivered such envelope by hand to the office of the addressee(s) noted above during normal business hours. [] I delivered such envelope by hand to the "will -call" box of addressee(s) located outside of Room 385 of the County Government Center, San Luis Obispo, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed July 20, 2015, on at San Luis Obispo, California. dfilW Elliott, Legal Clerk Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 926 1 2 3 4 5 6 7 8 9 10 11 12 13" 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dan Dow District Attorney State Bar #237986 County of San Luis Obispo County Government Center, Room 450 San Luis Obispo, CA 93408 Telephone: (805) 781-5800 Attorney for the People of the State of California RECEIVED SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN LUIS OBISPO THE PEOPLE OF THE STATE OF CALIFORNIA, ) CASE NO. 15M-04702 — A&B Plaintiff,) PEOPLE'S MOTION TO JOIN vs. ) MOTION FOR PRETRIAL DISCOVERY NICOLE MARIE ANDERSON (PITCHESS) Date: July 29, 2015 JENNIFER MARIE GALVEZ, ) Time 1:30 p.m. Dept. _ 7 Defendants. TO THE ABOVE ENTITLED COURT, TO THE DEFENDANTS AND THEIR ATTORNEYS, CHRISTOPER CASCIOLA AND JAMES MURPHY, AND COUNSEL FOR THE CITY OF SAN LUIS OBISPO POLICE DEPARTMENT: PLEASE TAKE NOTICE that on July 29, 2015, in Department 7, at 1:30 p.m., the People will move to join in the discovery motion filed by the defendant under Pitchess v. Superior Court (1974) 11 Cal. 3d 531. The People seek to obtain identical copies of any discovery provided to the defense at and after any in camera review of the personnel records of Officer J. Walsh. Page 1 PEOPLE'S MOTION TO JOIN MOTION FOR PRETRIAL DISCOVERY (PITCHESS) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 927 1' 2 3 4 51 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By joining the present motion for pretrial discovery, the People are not suggesting that the records sought by the defense ought to be disclosed or that the motion should be well taken. The People are joining this motion in order to obtain the same discovery materials which may be disclosed by the court to the defense. Date: July 20, 2014 Respectfully submitted, Dan Dow District Attorne By: Nicholas Quincey Deputy District Attorney Page 2 PEOPLE'S MOTION TO JOIN MOTION FOR PRETRIAL DISCOVERY (PITCHESS) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 928 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Code of Civil Procedure §1013a; CRC Rule 2006(d) STATE OF CALIFORNIA, COUNTY OF SAN LUIS OBISPO I am and at all times herein mentioned as a citizen of the United States and a resident of the County of San Luis Obispo over the age of 18 years and not a party to the within entitled action. My business address is County Government Center, Room 450, San Luis Obispo, California, 93408. On July 20, 2015, 1 served the foregoing document(s) described as: PEOPLE'S MOTION TO JOINT MOTION FOR PRETRIAL DISCOVERY ( PITCHESS) PEOPLE v. ANDERSON & GALVEZ; 15M-04702) on the interested parties in this action as follows - Christopher Casciola, Esq. Stein, Casciola & Galambos 1119 Palm Street San Luis Obispo, CA 93401 James R. Murphy, Jr., Esq. 221 East Branch Street Arroyo Grande, CA 93420 Jon Ansolabehere Deputy City Attorney Office of the City Attorney 990 Palm Street San Luis Obispo, CA 93401 XX] BY MAIL: I caused such envelope with postage thereon fully prepaid to be placed in the U.S. Mail at San Luis Obispo, California. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that upon motion of the party served, service is presumed invalid if the postal cancellation date of postage meter date is more than one day after date of deposit for mailing affidavit. BY PERSONAL SERVICE: [] I delivered such envelope by hand to the office of the addressee(s) noted above during normal business hours. [] I delivered such envelope by hand to the "will -call" box of addressee(s) located outside of Room 385 of the County Government Center, San Luis Obispo, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed July 20, 2015, on at San Luis Obispo, California. J Elliott, Legal Clerk Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 929 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KASEY A. CASTILLO, SBN #236690 NICOLE A. NALEWAY, SBN #300701 GASPARD CASTILLO HARPER, APC 3333 Concours St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Kasey@GCHattorneys.com Attorneys for Appellant KEVIN WADDELL R BEFORE HEARING OFFICER CHRISTOPHER CAMERON IN RE THE MATTER OF THE APPEAL OF TERMINATION OF OFFICER KEVIN WADDELL FROM THE SAN LUIS OBISPO POLICE DEPARTMENT APPELLANT'S NOTICE OF MOTION; MOTION FOR THE DISCOVERY AND DISCLOSURE OF PEACE OFFICER PERSONNEL FILE (PITCHESS MOTION) OF LIEUTENANT BILL PROLL; DECLARATION OF NICOLE A. NALEWAY IN SUPPORT THEREIN Date to Be Heard: August 20, 2015 TO THE HEARING OFFICER AND OPPOSING COUNSEL: PLEASE TAKE NOTICE that on August 20, 2015 at 990 Palm Street, San Luis Obispo, CA 93401, at 9:00 a.m., Appellant KEVIN WADDELL will move that the Hearing Officer Christopher Cameron (hereinafter referred to as "the Hearing Officer") order the above -noticed law enforcement agency to make available for examination, copying, and for the hearing on this motion the materials described below regarding San Luis Obispo Police Lieutenant Bill Proll. 1. The officer's personnel files; 2. Internal Affairs Investigations or inquiries of the officer; 1 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 930 4 3 4 5 6 7 8 9 10 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Any and all complaints (formal or informal) filed against the officer, both internally and externally; 4. Any complaint and/or investigation involving misleading or false statements in any official matter, malicious treatment of witnesses, improper use of law enforcement power, propensity & motivation to retaliate and/or fabricate. 5. Any and all documents related to copying, sealing and preserving all files subject to review or potentially subject to review so that a meaningful record for appellate review can be maintained. Dated: July 28, 2015 Respectfully submitted, GASPARD CASTELLO HARPER, APC NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL 2 _ PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 931 2 3 M 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF FACTS Appellant filed an appeal in the above-named matter after the Respondent Police Department terminated him without just cause and where the penalty of termination was grossly excessive. Additionally, the proffered pretext for the termination of Appellant is based upon allegations regarding false statements to Sergeant Pfarr regarding arriving late, and conduct detrimental to the department by breaking or removing vehicle parts. The Department and the City relied substantially on the internal affairs investigation that was conducted by Lt. Proll and relied on his credibility determination of the witnesses in this case. Appellant is hereby respectfully moving the Hearing Officer for an order that the SAN LUIS OBISPO POLICE DEPARTMENT make available the following material listed below regarding Lieutenant Bill Proll: 1. The officer's personnel files; 2. Internal Affairs Investigations or inquiries of the officer; 3. Any and all complaints (formal or informal) filed against the officer, both internally and externally; 4. Any complaint and/or investigation involving misleading or false statements in any official matter, malicious treatment of witnesses, improper use of law enforcement power, propensity & motivation to retaliate and/or fabricate. 5. Any and all documents related to copying, sealing and preserving all files subject to review or potentially subject to review so that a meaningful record for appellate review can be maintained. These documents and files are reasonably believed to be in the custody of the San Luis Obispo Police Department. 3 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 932 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Il. ARGUMENT A. UNDER STATUTORY LAW, APPELLANT IS ENTITLED TO DISCLOSURE OF THE REQUESTED DOCUMENTS Discovery in administrative proceedings is determined on a case-by-case basis by analogy to criminal cases. Shively v. Stewart (1966) 65 Ca1.2d 475, 479. Discovery of a peace officer's personnel records and records maintained pursuant to Cal. Penal Code Sections 832.5 and 832.7, and the procedure set forth under Cal. Evid. Code Sections 1040 and 1043 is the exclusive method for obtaining those personnel records and the information contained in them. Davis v. City of Sacramento (1994) 24 Cal. AppAth 393, review denied. Cal. Evid. Code Sections 1043 and 1045 do not limit discovery of confidential information from police officer personnel files to the types of information mentioned in the statutes or to the facts embraced by Pitchess v. Superior Court (1974) 11 Cal -3d 531, because it government cannot invoke the privilege to withhold evidence relevant to an opposing party. Garden Grove Police Dept. v. Super. Ct. (2001) 89 Cal.AppAth 430, 433, review denied (citing People v. Memro (1985) 38 Cal.3d 658, 679, review denied, cert. denied (1996)). (Emphasis added.) For the same reason, Pitchess motions may also be used to discover information to impeach an officer's credibility. Garden Grove, 89 Cal.AppAth at 433 (citing People v. I Hustead (1999) 74 Cal.AppAth 410, 417). As noted in Fletcher v. Superior Court (2002) 100 Cal.AppAth 386, review denied, the language of Cal. Evid. Code Section 1045(a) is expansive; the section expressly permits discovery of information "pertaining to the manner in which [the officer] performed his duties, provided that such information is relevant to the subject matter involved in the pending litigation." Fletcher, 100 Cal.App.4th at 389 (emphasis added). Further, as the California Supreme Court recognized in People v. Memro (1985) 38 Cal. 3d 658, when the Legislature adopted Evidence Code Section 1043, et seq., it not only reaffirmed, but also expanded, the principles of Pitchess. Memro, supra, 38 Cal.3d at 680. In this case, the information the Appellant requests from the personnel file of Lieutenant Bill Proll is absolutely relevant because it relates to a number of matters at issue in this case. Not 4 Y11CHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 933 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 only is Lieutenant Proll's credibility and reliability as a historian a matter of determination for this Hearing Officer, the statements made during that investigation are relevant, as is the level of discipline, when assessed alone, and by comparison to Officer Waddell. Due process, especially in a termination case where allegations amounting to dishonesty are at the forefront, vitiates in favor of disclosure, and such disclosure should be construed expansively, in accordance with the court's decisions in Fletcher. B. APPELLANT HAS DEMONSTRATED GOOD CAUSE FOR THE PRODUCTION OF THE PERSONNEL RECORDS FOR LIEUTENANT BILL PROLL 1. The Sole Requirement For Such Good Cause Is A Declaration Based Upon Information And Belief. Cal. Evid. Code Section 1043(b)(3) requires good cause for the production of records. Good cause" is defined as that "statement of the facts which supports relevancy to the subject matter of the lawsuit," or that which is "reasonably calculated to lead to admissible evidence." Materiality is properly shown if the information sought will facilitate the ascertainment of the facts and a fair trial. Haggerty v. Superior Court, (2004) 117 Cal. AppAth 1079, 1085. Further, relevance to the subject matter is to be broadly construed and is not limited to relevance to the narrow issues of the case. Greyhound Corporation v. Superior Court, (1961) 56 C.2d 355, 378, 390. The good cause standard is set forth in City of Santa Cruz v. Municipal Court, (1989) 49 Cal. 3d 74, and specifies that the declaration in support of the motion requesting a peace officer' personnel records must provide a "specific factual scenario" establishing a "plausible factual foundation" for allegations, and set forth the materiality of the discovery sought to the subject matter involved in the pending litigation. City of Santa Cruz, supra, 49 Cal.3d at 85-86. The court in City of Santa Cruz concluded that the defendant had made a showing of good cause for discovery of peace officer records based upon defense counsel's motion and his declaration. In said motion, defense counsel moved for discovery of complaints regarding the 5 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 934 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arresting officers' use of excessive force in effecting arrests against others. Santa Cruz, supra, 49 Cal. 3d at 80-81. In this case, Lt. Proll's personnel records, internal affairs investigation records and any complaints filed against him, especially for misrepresentation or false statements are clearly relevant and is evidence of the abuse of discretion by the San Luis Obispo Police Department in the determination of Appellant's discipline. Additionally, the factual scenario as delineated in the Declaration of Nicole A. Naleway is hereby incorporated via reference. Thus, Appellant has met his requirement to demonstrate good cause, relevance and materiality for the Hearing Officer to review and disclose the documents sought. C. THE CITY MUST PRODUCE A BROAD SCOPE OF FILE The City is obligated to produce all records that are "potentially relevant" material. When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring the trial court all "potentially" relevant documents to permit the trial court to examine the for itself. Santa Cruz, supra, 49 Cal.3d at 84, 260 Cal.Rptr. 520, 776 P.2d 222. (Emphasis added.) In this case, the requested documents are well within the scope of production of Pitchess and relevant as aforementioned. Appellant relies upon Fletcher v. Superior Court (2002) 100 Cal.AppAth 836 in requesting all files responsive to the Pitchess request in the possession or accessible to the City. The original source of the files is irrelevant. The contents of the files are the standard of materiality. This particularly is important as governmental agencies and entities share and form joint task forces. Any narrow definition of files would subvert the principles underlying Pitchess motions. Appellant also request that the Department disclose to Appellant the fact that no files exist, if this is the case, in addition to a statement that no requested files exist. C PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 935 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. DISCOVERY OF THE PERSONNEL FILES SHOULD EXTEND BEYOND THE FIVE-YEAR RULE Appellant requests information beyond the five-year period which relates to bias, impeachment, propensity & motivation to fabricate. In Brady v. Maryland (1963) 373 U.S. 83, the Supreme Court recognized that: T]he prosecution must disclose to defense any evidence that is "favorable to the accused" and is "material" on the issue of either guilt or punishment. Failure to do so violates the accused's constitutional right to due process.... Brady, 373 U.S. at 86-87. The five-year rule set forth in Evidence Code Section 1045, subsection (b)(1) is not an absolute bar to disclosure. City of Los Angeles v. Superior Court (Brandon) (2002) 29 CalAth 1, 13. "Unlike Brady, California's Pitchess discovery scheme entitles a defendant to information that will `facilitate the ascertainment of the facts' at trial, that is, `all information pertinent to the defense."' Id at 14. As such, under both the Brady & Pitchess decisions, documents more than five years old are relevant to show the witness' credibility. Appellant seeks the personnel file of Lt. Proll for I his entire career for purposes of impeachment. E. ADMINISTRATIVE HEARING BODY DOES HAVE THE AUTHORITY TO RULE ON A PITCHESS MOTION An administrative body, such as the selected Hearing Officer, does have the authority to rule on a Pitchess motion, and to conduct the in camera inspection of peace officer personnel records, as required by California Evidence Code Section 1043. In Riverside County Sheriff's Department v. Stiglitz (Drinkwater) (2014) 60 CalAth 624, the Supreme Court recognized that ai administrative hearing body (i.e., arbitrator, hearing officer, or Civil Service Commission) could rule on a motion for the production of peace officer personnel records. The court based its holding on the language of Cal. Evid. Code Section 1043 which permits a Pitchess Motion to be filed "with the appropriate court or administrative body." 7 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 936 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thus, during administrative appeals, an administrative officer may rule on a Pitchess motion where information contained in the peace officer personnel records is relevant to an issue raised in the officer's defense. Appellant requests that the Hearing Officer grant the Pitchess motion, where Appellant is seeking the listed information on file for San Luis Obispo Police Lieutenant Bill Proll. M. CONCLUSION Appellant has made a showing beyond that required for an in -camera review. Appellant respectfully requests a review of all potentially relevant files and the copying and sealing of all files to preserve a record. In case no disciplinary records are found, Appellant respectfully requests that the Department duly notes that fact. Dated: July 28, 2015 Respectfully submitted, GASPARD CASTELLO HARPER, APC NICOLE A. NAL WAY Attorneys for Appellant KEVIN WADDELL 8 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 937 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF NICOLE A. NALEWAY IN SUPPORT OF APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER'S PERSONNEL RECORDS P( ITCHESSCBRADY- EVIDENCE CODE§1042): I, Nicole A. Naleway, declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and am one of the attorneys of record for the Appellant herein. The following is within my personal knowledge and I could and would testify thereto if called as a witness. 2. The appellant is asking for discovery detailed in the foregoing motion incorporated herein by reference]. 3. Kevin Waddell was terminated for allegations of false statements or giving false information to a Department Supervisor and for failure to report for duty in a punctual manner. 4. Additionally, Kevin Waddell was terminated for allegations of conduct detrimental to the Department by breaking or removing a vehicle part, in violation of California Vehicle Code 10852. 5. The allegations are based on information that was given to the San Luis Police Department by Lieutenant Bill Proll, specifically his Administrative Inquiry of Officer Waddell regarding the "Bentley" incident, AI -13-005P. 6. Based on testimony that has been presented at the hearing thus far, the Department and the City relied substantially on the internal affairs investigation that was conducted by Lt. Proll and relied on his credibility determination of the witnesses in this case. 7. Based on testimony presented at this hearing thus far, it is clear that the decision - makers for the City and the Department relied substantially on Lt. Proll's report and investigation regarding the Bentley incident. Specifically, Captain Staley, who prepared the Executive Recommendation which went to Chief Gesell, testified that he did not listen to the audio recordings of the witness interviews. 9 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 938 1 2 3 4 5 6 7 8 9 10 11 8. Likewise, the City Manager, Katie Lichtig, who was admitted that she was the ultimate decision -maker in this case testified on July 24, 2015 that she could not 91 10. 12 11. 13 14 15 12. 16 17 18 19 20 21 22 23 24 25 26 27 28 113 114. remember whether she had listened to the audio recordings or not. If the decision -makers did not actually listen to the audio recordings of the witness interviews in the current case, it may be implied that they relied substantially on the accuracy of Lt. Proll's report, putting Lt. Proll's credibility and reliability as a historian of events at issue in the current case. Lt. Proll's personnel file is extremely relevant to the current case, especially any complaint and/or investigation of Lt. Proll involving misleading or false statements in any official matter, malicious treatment of witnesses, improper use of law enforcement power, and his propensity and motivation to retaliate and/or fabricate. All the materials requested herein are directly relevant to the credibility determinations necessary to determine this case, as well as the multiple affirmative defenses to be presented by the Appellant throughout the course of the Hearing. Additionally, upon information and belief, the information requested may lead to the discovery of other evidence which would assist us with the preparation and presentation of said appeal of termination. I have no other source for obtaining the requested information and believe the information requested is readily available to the San Luis Obispo Police Department. Furthermore, there will be no unreasonable or time consuming searches to retrieve the documentation since Respondent City has possession of such material requested. I do not have access to any of the San Luis Obispo Police Department internal investigation files. I do not have any access to investigations or discipline made by the Department without the process and assistance of the Hearing Officer. 10 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 939 1 2 3 m 5 6 7 8 9 10 11 12 13 14 15 16 17 1 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty of perjury that the above is true and correct. Executed this 28`h day of July, 2015, at Ontario, California. Nicole A. Naleway Attorney for Appellant, Kevin Waddell 11 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 940 1 2 3 4 5 6 7 8 9 10 PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 3333 Concours St., Bldg. 4, Ste. 4100, Ontario, CA 91764. On July 28, 2015, I served the following document described as APPELLANT'S NOTICE OF MOTION; MOTION FOR, THE DISCOVERY AND DISCLOSURE OF PEACE OFFICER PERSONNEL FILE (PITCHESS MOTION) OF LIEUTENANT BILL PROLL; DECLARATION OF NICOLE A. NALEWAY IN SUPPORT THEREIN on the interested parties in this action by e-mail and a true and correct copy of the document Served via U.S. Mail) San Luis Obispo Police Department Attn: Captain Storton 1042 Walnut Street San Luis Obispo, CA 93401 Served via U.S. mail and email) Hearing Officer Christopher Cameron Arbitrator and Civil Service Hearing Officer c/o Southwestern Law School 3050 Wilshire Boulevard Los Angeles, CA 90010 ccameron@swlaw.edu 11 (Served via U.S. mail and email) 12 City Attorney Christine Dietrick 990 Palm Street, Room 10 13 I San Luis Obispo, CA 93401 cdietrick @ slocttv.4re 14 [X] I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service. I know that the15 correspondence was deposited with the United States Postal Service on the same 16 day this declaration was executed in the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for 17 collection and mailing on this date in the United States mail at Ontario, California. 18 By Personal Service, I caused such envelope to be delivered by hand to the above 19 addressee(s). 20 [ ] By Facsimile machine, I caused the above -referenced document(s) to be transmitted 21 to the above-named persons(s) 22 [X] By Electronic Mail, I caused the above -referenced document(s) to be transmitted to 23 the above-named persons(s) 24 [ ] By Overnight Courier, I caused the above referenced document(s) to be delivered To an overnight courier (UPS) for delivery to the above addressee(s). 25 26 [ X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 27 Executed on July 28, 2015 at Ontario, California. 28 7 r l icy Ad PROOF OF SERVICE -1 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 941 July 29, 2015 a -Legal Services Inc fax (805) 439-1802 ** BY FAX ** Kasey A. Castillo, Esq. SBN: 236690 FOR COURT USE ONLY Gaspard Castillo Harper, APC 3333 Concours Street, Bldg. 4, Ste. 4100 Ontario, CA 91764 Attorney For: Appellant: Kevin Waddell TELEPHONE NO: (909) 466-5600 FAX NO (Optional): (909) 466-5610 E-MAIL ADDRESS ( Optional): PLAINTIFF(name each): In Re the Matter of: DEFENDANT(name each): The Appeal of Termination of Officer Kevin Waddell From CASE NUMBER: San Luis Obis o Police De artment HEARING DATE: DAY: TIME: DEPT Ref No or File No: PROOF OF SERVICE WADDELL AT THE TIME OF SERVICE I WAS AT LEAST 18 YEARS OF AGE AND NOT A PARTY TO THIS ACTION, AND I SERVED COPIES OF THE: Appellant's Notice of Motion, Motion for the Discovery and Disclosure of Peace Officer Personnel File (Pitchess Motion) of Lieutenant Bill Proll, Declaration of Nicole A. Naleway in Support Therein; California Public Records Act Request; Witness Fee Check #10475 - $15.00 PARTY SERVED: Custodian of Records for the San Luis Obispo Police Department PERSON SERVED: Tera Rappa, Records Supervisor - Authorized Agent DATE & TIME OF DELIVERY: 07/29/2015 11:30 am ADDRESS, CITY, AND STATE: 1042 Walnut Street San Luis Obispo, CA 93401 PHYSICAL DESCRIPTION: Age: 40 Weight: 170 Hair: Brown Sex: female Height: 5'8 Eyes: Brown Race: Caucasian Marks: MANNER OF SERVICE: Personal Service - By personally delivering copies. WITNESS FEES: The witness demanded witness fees, and said witness was paid the sum of $15.00. Fee for Service: . County: San Luis Obispo 101'e-Legal Registration No.: 225 Services, Inc. 1060 Palm Street, Suite D Registered SAN LUIS OBISPO San Luis Obispo, CA 93401 805) 439-1800 www.elegalservicesinc.com I declare under penalty of perjury under the laws of the The State of California that the foregoing information contained in the return of service and statement of service fees is true and correct and that this declaration was executed on July 29, 2015. COUNTY #205 Signature: Josh Holland Electronic Signature PROOF OF SERVICE982(a)(23)[New July 1, 1987] Order#: 116502/General Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 942 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KASEY A. CASTELLO, SBN #236690 NICOLE A. NALEWAY, SBN #300701 GASPARD CASTILLO HARPER, APC 3333 Concours St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Kasey@GCHattomeys.com Attorneys for Appellant KEVIN WADDELL RECEIVED AUG - 3 2015 SLO CITY ATTORNEY BEFORE HEARING OFFICER CHRISTOPHER CAMERON IN RE THE MATTER OF THE APPEAL OF TERMINATION OF OFFICER KEVIN WADDELL FROM THE SAN LUIS OBISPO POLICE DEPARTMENT APPELLANT'S NOTICE OF MOTION; MOTION FOR THE DISCOVERY AND DISCLOSURE OF PEACE OFFICER PERSONNEL FILE (PITCHESS MOTION) OF SERGEANT CHAD PFARR; DECLARATION OF NICOLE A. NALEWAY IN SUPPORT THEREIN Date to Be Heard: August 20, 2015 TO THE HEARING OFFICER AND OPPOSING COUNSEL: PLEASE TAKE NOTICE that on August 20, 2015 at. 990 Palm Street, San Luis Obispo, CA 93401, at 9:00 a.m., Appellant KEVIN WADDELL will move that the Hearing Officer Christopher Cameron (hereinafter referred to as "the Hearing Officer") order the above -noticed law enforcement agency to make available for examination, copying, and for the hearing on this motion the materials described below regarding San Luis Obispo Police Sergeant Chad Pfarr. 1. Any and all documentation, including, but not limited to: any internal investigation, or inquiry, into Sergeant Chad Pfarr's failure to supervise, PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 943 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or allegations thereof, Officer Kevin Waddell, in any capacity, through and including the time period of 2013-2014; 2. Any and all discipline administered to Pfarr stemming from any allegations of failure to supervise Appellant Waddell during the time period of 2013-2014; 3. Any and all evaluations (quarterly and annual) of Pfarr during the time period of 2013-2014; 4. Any and all documentation related to the copying, sealing and preserving of all files subject to review or potentially subject to review so that a meaningful record for appellate review can be maintained. Dated: July 28, 2015 Respectfully submitted, GASPARD CASTILLO HARPER, APC NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL 2 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 944 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF FACTS Appellant filed an appeal in the above-named matter after the Respondent Police Department terminated him without just cause and where the penalty of termination was grossly excessive. Additionally, the proffered pretext for the termination of Appellant is based upon allegations regarding false statements to Pfarr regarding arriving late, and conduct detrimental to the department by breaking or removing vehicle parts. It is our belief that Sergeant Pfarr was disciplined and/or remediated after the Appellant was investigated for this "failure to supervise" Officer Waddell. Appellant is hereby respectfully moving the Hearing Officer for an order that the SAN LUIS OBISPO POLICE DEPARTMENT make available the following material listed below regarding Sergeant Chad Pfarr: 1. Any and all documents related to any investigation, and/or inquiry, related to Sergeant Chad Pfarr, and allegations regarding the failure to supervise Officer Kevin Waddell; 2. Any and all discipline relating to any failure to supervise Appellant; 3. Any and all evaluations of Pfarr mentioning or referencing the failure to supervise Officer Kevin Waddell. 4. Any and all documents related to copying, sealing and preserving all files subject to review or potentially subject to review so that a meaningful record for appellate review can be maintained. These documents and files are reasonably believed to be in the custody of the San Luis Obispo Police Department. 3 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 945 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. ARGUMENT A. UNDER STATUTORY LAW, APPELLANT IS ENTITLED TO DISCLOSURE OF THE REQUESTED DOCUMENTS Discovery in administrative proceedings is determined on a case-by-case basis by analogy to criminal cases. Shively v. Stewart (1966) 65 Ca1.2d 475, 479. Discovery of a peace officer's personnel records and records maintained pursuant to Cal. Penal Code Sections 832.5 and 832.7, and the procedure set forth under Cal. Evid. Code Sections 1040 and 1043 is the exclusive method for obtaining those personnel records and the information contained in them. Davis v. City of Sacramento (1994) 24 Cal. AppAth 393, review denied. Cal. Evid. Code Sections 1043 and 1045 do not limit discovery of confidential information from police officer personnel files to the types of information mentioned in the statutes or to the facts embraced by Pitchess v. Superior Court (1974) 11 Cal.3d 531, because government cannot invoke the privilege to withhold evidence relevant to an opposing party. Garden Grove Police Dept. v. Super. Ct. (2001) 89 Cal.AppAth 430, 433, review denied (citing People v. Memro (1985) 38 Cal.3d 658, 679, review denied, cert. denied (1996)). (Emphasis added.) For the same reason, Pitchess motions may also be used to discover information to impeach an officer's credibility. Garden Grove, 89 Cal.AppAth at 433 (citing People v. Hustead (1999) 74 Cal.AppAth 410, 417). As noted in Fletcher v. Superior Court (2002) 100 Cal.AppAth 386, review denied, the language of Cal. Evid. Code Section 1045(a) is expansive; the section expressly permits discovery of information "pertaining to the manner in which [the officer] performed his duties, provided that such information is relevant to the subject matter involved in the pending litigation." Fletcher, 100 Cal.AppAth at 389 (emphasis added). Further, as the California Supreme Court recognized in People v. Memro (1985) 38 Cal. 3d 658, when the Legislature adopted Evidence Code Section 1043, et seq., it not only reaffirmed, but also expanded, the principles of Pitchess. Memro, supra, 38 Cal.3d at 680. In this case, the information the Appellant requests from the personnel file of Sergeant Chad Pfarr is absolutely relevant because it relates to a number of matters at issue in this case. 4 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 946 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Not only is Sergeant Pfarr's credibility and reliability as a historian a matter of determination for this Hearing Officer, the statements made during that investigation are relevant, as is the level of discipline, when assessed alone, and by comparison to Officer Waddell, particularly after some of the sworn testimony of Sgt. Pfarr in the instant hearing. Due process, especially in a termination case where allegations amounting to dishonesty are at the forefront, vitiates in favor of disclosure, and such disclosure should be construed expansively, in accordance with the court's decisions in Fletcher. B. APPELLANT HAS DEMONSTRATED GOOD CAUSE FOR THE PRODUCTION OF THE PERSONNEL RECORDS FOR SERGEANT CHAD PFARR 1. The Sole Requirement For Such Good Cause Is A Declaration Based Upon Information And Belief. Cal. Evid. Code Section 1043(b)(3) requires good cause for the production of records. Good cause" is defined as that "statement of the facts which supports relevancy to the subject matter of the lawsuit," or that which is "reasonably calculated to lead to admissible evidence." Materiality is properly shown if the information sought will facilitate the ascertainment of the facts and a fair trial. Haggerty v. Superior Court, (2004) 117 Cal. AppAth 1079, 1085. Further, relevance to the subject matter is to be broadly construed and is not limited to relevance to the narrow issues of the case. Greyhound Corporation v. Superior Court, (1961) 56 C.2d 355, 378, 390. The good cause standard is set forth in City of Santa Cruz v. Municipal Court, (1989) 49 Cal. 3d 74, and specifies that the declaration in support of the motion requesting a peace officer'si personnel records must provide a "specific factual scenario" establishing a "plausible factual foundation" for allegations, and set forth the materiality of the discovery sought to the subject matter involved in the pending litigation. City of Santa Cruz, supra, 49 Cal.3d at 85-86. The court in City of Santa Cruz concluded that the defendant had made a showing of good cause for discovery of peace officer records based upon defense counsel's motion and his declaration. In said motion, defense counsel moved for discovery of complaints regarding the 5 PTrcros MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 947 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arresting officers' use of excessive force in effecting arrests against others. Santa Cruz, supra, 49 Cal. 3d at 80-81. In this case, Sgt Pfarr's disciplinary records, any internal affairs investigation, or performance evaluations mentioning his failure to supervise Officer Waddell would be clearly relevant. Additionally, the factual scenario as delineated in the Declaration of Nicole A. Nalewa is hereby incorporated via reference. Thus, Appellant has met his requirement to demonstrate good cause, relevance and materiality for the Hearing Officer to review and disclose the documents sought. C. THE CITY MUST PRODUCE A BROAD SCOPE OF FILE The City is obligated to produce all records that are "potentially relevant" material. When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring the trial court all "potentially" relevant documents to permit the trial court to examine the for itself. Santa Cruz, supra, 49 Cal.3d at 84, 260 Cal.Rptr. 520, 776 P.2d 222. (Emphasis added.) In this case, the requested documents are well within the scope of production of Pitchess and relevant as aforementioned. Appellant relies upon Fletcher v. Superior Court (2002) 100 Cal.AppAth 836 in requesting all files responsive to the Pitchess request in the possession or accessible to the City. The original source of the files is irrelevant. The contents of the files are the standard of materiality. This particularly is important as governmental agencies and entities share and form joint task forces. Any narrow definition of files would subvert the principles underlying Pitchess motions. Appellant also request that the Department disclose to Appellant the fact that no files exist, if this is the case, in addition to a statement that no requested files exist. D. ADNIINISTRATIVE HEARING BODY DOES HAVE THE AUTHORITY TO RULE ON A PITCHESS MOTION An administrative body, such as the selected Hearing Officer, does have the authority to rule on a Pitchess motion, and to conduct the in camera inspection of peace officer personnel records, as required by California Evidence Code Section 1043. In Riverside County Sheriff's 6 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 948 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Department v. Stiglitz (Drinkwater) (2014) 60 CalAth 624, the Supreme Court recognized that administrative hearing body (i.e., arbitrator, hearing officer, or Civil Service Commission) could rule on a motion for the production of peace officer personnel records. The court based its holding on the language of Cal. Evid. Code Section 1043 which permits a Pitchess Motion to be filed "with the appropriate court or administrative body." Thus, during administrative appeals, an administrative officer may rule on a Pitchess motion where information contained in the peace officer personnel records is relevant to an issue raised in the officer's defense. Appellant requests that the Hearing Officer grant the Pitchess notion, where Appellant is seeking the listed information on file for San Luis Obispo Police Sergeant Chad Pfarr. III. CONCLUSION Appellant has made a showing beyond that required for an in -camera review. Appellant respectfully requests a review of all potentially relevant files and the copying and sealing of all files to preserve a record. In case no disciplinary records are found, Appellant respectfully requests that the Department duly notes that fact. Dated: July 28, 2015 Respectfully submitted, GASPARD CASTILLO HARPER, APC NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL 7 _ PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 949 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 27 DECLARATION OF NICOLE A. NALEWAY IN SUPPORT OF APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER'S PERSONNEL RECORDS PITCHESSBRADY- EVIDENCE CODE $1042): I, Nicole A. Naleway, declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and am one of the attorneys of record for the Appellant herein. The following is within my personal knowledge and I could and would testify thereto if called as a witness. 2. The appellant is asking for discovery detailed in the foregoing motion incorporated herein by reference]. 3. Kevin Waddell was terminated for allegations of false statements or giving false information to a Department Supervisor and for failure to report for duty in a punctual manner. 4. Additionally, Kevin Waddell was terminated for allegations of conduct detrimental to the Department by breaking or removing a vehicle part, in violation of California Vehicle Code 10852. 5. It is our belief that Sergeant Pfarr was disciplined and/or remediated after the Appellant was investigated, for Sgt. Pfarr's "failure to supervise" Officer Waddell. 6. Additionally, the allegations are based on information that was given to the San Luis Police Department by Sergeant Chad Pfarr. 7. All the materials requested herein are directly relevant to the credibility determinations necessary to determine this case, as well as the multiple affirmative defenses to be presented by the Appellant throughout the course of the Hearing. 8. Additionally, upon information and belief, the information requested may lead to the discovery of other evidence which would assist us with the preparation and presentation of said appeal of termination. 9. I have no other source for obtaining the requested information and believe the information requested is readily available to the San Luis Obispo Police Department. Furthermore, there will be no unreasonable or time consuming searches to retrieve the documentation since Respondent City has possession of such material requested. 8 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 950 I 2 3 4 5 6 7 LIM 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. I do not have access to any of the San Luis Obispo Police Department internal investigation files. I do not have any access to investigations or discipline made by the Department without the process and assistance of the Hearing Officer. I declare under penalty of perjury that the above is true and correct. Executed this 2811' day of July, 2015, at San Luis Obispo, California. Nicole A. Naleway Attorney for Appellant, Kevin Waddell 9 _ PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 951 2 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 3333 Concours St., Bldg. 4, Ste. 4100, Ontario, CA 91764. On July 28, 2015, I served the following document described as APPELLANT'S NOTICE OF MOTION; MOTION FOR THE DISCOVERY AND DISCLOSURE OF PEACE OFFICER PERSONNEL FILE (PITCHESS MOTION) OF SERGEANT CHAD PFARR; DECLARATION OF NICOLE A. NALEWAY IN SUPPORT THEREIN on the interested parties in this action by e-mail and a true and correct copy of the document aforementioned each of recipients listed below: Served via U.S. Mail) San Luis Obispo Police Department Attn: Captain Storton 1042 Walnut Street San Luis Obispo, CA 93401 Served via U.S. mail and email) Hearing Officer Christopher Cameron Arbitrator and Civil Service Hearing Officer c/o Southwestern Law School 3050 Wilshire Boulevard Los Angeles, CA 90010 ccameron@swlaw.edu Served via U.S. mail and email) City Attorney Christine Dietrick 990 Palm Street, Room 10 San Luis Obispo, CA 93401 cdietrick@slocity.org X] I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service. I know that the correspondence was deposited with the United States Postal Service on the same day this declaration was executed in the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States mail at Ontario, California. By Personal Service, I caused such envelope to be delivered by hand to the above addressee(s). By Facsimile machine, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) X] By Electronic Mail, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) By Overnight Courier, I caused the above referenced document(s) to be delivered To an overnight courier (UPS) for delivery to the above addressee(s). X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 28, 2015 at Ontario, California. PROOF OF SERVICE -1 Nancy Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 952 auly ea, euro a -Legal Services, Inc fax (805) 439-1802 ** BY FAXX ** Kasey A. Castillo, Esq. SBN: 236690 FOR COURT USE ONLYGaspardCastilloHarper, APC 3333 Concours Street, Bldg. 4, Ste. 4100 Ontario, CA 91764 Attorney For: Appellant: Kevin Waddell TELEPHONE NO: (909) 466-5600 FAX NO (optional): (909) 466-5610 E-MAIL ADDRESS (Daliffnal) PLAINTIFF(name each): In Re the Matter of: DEFENDANT(name each): The Appeal of Termination of Officer Kevin Waddell From CASE NUMBER: San Luis Obis o Police De artment HEARING DATE: DAY: TIME: DEPT : Ref No or File No PROOF OF SERVICE WADDELL AT THE TIME OF SERVICE I WAS AT LEAST 18 YEARS OF AGE AND NOT A PARTY TO THIS ACTION, AND I SERVED COPIESOFTHE: Appellant's Notice of Motion, Motion for the Discovery and Disclosure of Peace Officer Personnel File (Pitchess Motion) of Sergeant Chad Pfarr, Declaration of Nicole A. Naleway in Support Therein; California Public Records ActRequest; Witness Fee Check #10477 - $15.00 PARTY SERVED: Custodian of Records for the San Luis Obispo Police Department PERSON SERVED: Tera Rapp, Records Supervisor - Authorized Agent DATE & TIME OF DELIVERY: 07/29/2015 11:30 am ADDRESS, CITY, AND STATE: 1042 Walnut Street San Luis Obispo, CA 93401 PHYSICAL DESCRIPTION: Age: 40 Weight: 170 Hair: Brown Sex: female Height: 5'8 Eyes: Brown Race: Caucasian Marks: MANNER OF SERVICE: Personal Service - By personally delivering copies. WITNESS FEES: The witness demanded witness fees, and said witness was paid the sum of $15.00. Fee for Service: . 104County: San Luis Obispo Registration No.: 225 e -Legal Services, Inc. 1060 Palm Street, Suite D Registered SAN LUIS OBISPO San Luis Obispo, CA 93401 805) 439-1800 www.elegalservicesinc.com 982(a)(23)(New July 1, 1987] I declare under penalty of perjury under the laws of the The State of California that the foregoing information contained in the return of service and statement of service fees is true and correct and that this declaration was executed on July 29, 2015. COUNTY #205 Signature: PROOF OF SERVICE Josh Holland Electronic Signature Order#: 116504/General Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 953 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KASEY A. CASTILLO, SBN #236690 NICOLE A. NALEWAY, SBN #300701 GASPARD CASTILLO HARPER, APC 3333 Concours St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Kasey@GCHattorneys.com Attorneys for Appellant KEVIN WADDELL RECEIVED AUG - 3 2015 SLO CITY ATTORNEY BEFORE HEARING OFFICER CHRISTOPHER CAMERON IN RE THE MATTER OF THE APPEAL OF TERMINATION OF OFFICER KEVIN WADDELL FROM THE SAN LUIS OBISPO POLICE DEPARTMENT APPELLANT'S NOTICE OF MOTION; MOTION FOR THE DISCOVERY AND DISCLOSURE OF PEACE OFFICER PERSONNEL FILE (PITCHESS MOTION) OF LT. JEFF SMITH; DECLARATION OF NICOLE A. NALEWAY IN SUPPORT THEREIN Date to Be Heard: August 20. 2015 TO THE HEARING OFFICER AND OPPOSING COUNSEL: PLEASE TAKE NOTICE that on August 20, 2015 at. 990 Palm Street, San Luis Obispo, CA 93401, at 9:00 a.m., Appellant KEVIN WADDELL will move that the Hearing Officer Christopher Cameron (hereinafter referred to as "the Hearing Officer") order the above -noticed law enforcement agency to make available for examination, copying, and for the hearing on this motion the materials described below regarding San Luis Obispo Police Lieutenant Jeff Smith: 1. Any and all documentation, including, but not limited to: any internal investigation, or inquiry, into Lt. Jeff Smith's failure to supervise, or 1 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 954 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allegations thereof, Officer Kevin Waddell, in any capacity, through and including the time period of 2013-2014; 2. Any and all discipline administered to Smith stemming from any allegations of failure to supervise Appellant Waddell during the time period of 2013-2014; 3. Any and all evaluations of Smith during the time period of 2013-2014 that specifically reference counseling documenting the failure to supervise Officer Kevin Waddell; 4. Any and all documentation related to the copying, sealing and preserving of all files subject to review or potentially subject to review so that a meaningful record for appellate review can be maintained. Dated: July 28, 2015 Respectfully submitted, GASPARD CASTILLO HARPER, APC NICOLE A. NALEWAY Attomeys for Appellant KEVIN WADDELL 2 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 955 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF FACTS Appellant filed an appeal in the above-named matter after the Respondent Police Department terminated him without just cause and where the penalty of termination was grossly excessive. Additionally, the proffered pretext for the termination of Appellant is based upon allegations regarding false statements to Lt. Smith regarding permission to be late on a specific date vs. prior approval from Lt. Smith re: being late occasionally and thereafter flexing. It is our belief that Lt. Smith was disciplined and/or remediated after the Appellant was investigated for this "failure to supervise" Officer Waddell. Appellant is hereby respectfully moving the Hearing Officer for an order that the SAN LUIS OBISPO POLICE DEPARTMENT make available the following material listed below regarding Lt. Jeff Smith: 1. Any and all documents related to any investigation, and/or inquiry, related to Lt. Jeff Smith, and allegations regarding the failure to supervise Officer Kevin Waddell; 2. Any and all discipline relating to any failure to supervise Appellant; 3. Any and all evaluations of Lt. Smith mentioning or referencing the failure to supervise Officer Kevin Waddell. 4. Any and all documents related to copying, sealing and preserving all files subject to review or potentially subject to review so that a meaningful record for appellate review can be maintained. These documents and files are reasonably believed to be in the custody of the San Luis Obispo Police Department. 3 PITCHES MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 956 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. ARGUMENT A. UNDER STATUTORY LAW, APPELLANT IS ENTITLED TO DISCLOSURE OF THE REOUESTED DOCUMENTS Discovery in administrative proceedings is determined on a case-by-case basis by analogy to criminal cases. Shively v. Stewart (1966) 65 Cal.2d 475, 479. Discovery of a peace officer's personnel records and records maintained pursuant to Cal. Penal Code Sections 832.5 and 832.7, and the procedure set forth under Cal. Evid. Code Sections 1040 and 1043 is the exclusive method for obtaining those personnel records and the information contained in them. Davis v. City of Sacramento (1994) 24 Cal. AppAth 393, review denied. Cal. Evid. Code Sections 1043 and 1045 do not limit discovery of confidential information from police officer personnel files to the types of information mentioned in the statutes or to the facts embraced by Pitchess v. Superior Court (1974) 11 Cal.3d 531, because the government cannot invoke the privilege to withhold evidence relevant to an opposing party. Garden Grove Police Dept. v. Super. Ct. (2001) 89 Cal.AppAth 430, 433, review denied (citing People v. Memro (1985) 38 Cal.3d 658, 679, review denied, cert. denied (1996)). (Emphasis added.) For the same reason, Pitchess motions may also be used to discover information to impeach an officer's credibility. Garden Grove, 89 Cal.AppAth at 433 (citing People v. Hustead (1999) 74 Cal.AppAth 410, 417). As noted in Fletcher v. Superior Court (2002) 100 Cal.AppAth 386, review denied, the language of Cal. Evid. Code Section 1045(a) is expansive; the section expressly permits I discovery of information "pertaining to the manner in which [the officer] performed his duties, provided that such information is relevant to the subject matter involved in the I pending litigation." Fletcher, 100 Cal.AppAth at 389 (emphasis added). Further, as the California Supreme Court recognized in People v. Memro (1985) 38 Cal. 3d 658, when the Legislature adopted Evidence Code Section 1043, et seq., it not only reaffirmed, but also expanded, the principles of Pitchess. Memro, supra, 38 Cal.3d at 680. In this case, the information the Appellant requests from the personnel file of Lt. Jeff Smith is absolutely relevant because it relates to a number of matters at issue in this case. Not n Y PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 957 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 only is Lt. Smith's credibility and reliability as a historian a matter of determination for this Hearing Officer, the statements made during that investigation are relevant, as is the level of discipline, when assessed alone, and by comparison to Officer Waddell, particularly after some of the sworn testimony of Sgt. Chad Pfarr, the testimony ofLt. Bledsoe, and the documented statements of Lt. Smith and Sgt. Pfarr in the instant hearing. Due process, especially in a termination case where allegations amounting to dishonesty are at the forefront, vitiates in favor of disclosure, and such disclosure should be construed expansively, in accordance with the court's decisions in Fletcher. B. APPELLANT HAS DEMONSTRATED GOOD CAUSE FOR THE PRODUCTION OF THE PERSONNEL RECORDS FOR LT. JEFF SMITH 1. The Sole Requirement For Such Good Cause Is A Declaration Based Upon Information And Belief. Cal. Evid. Code Section 1043(b)(3) requires good cause for the production of records. Good cause" is defined as that "statement of the facts which supports relevancy to the subject matter of the lawsuit," or that which is "reasonably calculated to lead to admissible evidence." Materiality is properly shown if the information sought will facilitate the ascertainment of the facts and a fair trial. Haggerty v. Superior Court, (2004) 117 Cal. AppAth 1079, 1085. Further, relevance to the subject matter is to be broadly construed and is not limited to relevance to the narrow issues of the case. Greyhound Corporation v. Superior Court, (1961) 56 C.2d 355, 378, 390. The good cause standard is set forth in City of Santa Cruz v. Municipal Court, (1989) 49 Cal. 3d 74, and specifies that the declaration in support of the motion requesting a peace officer' personnel records must provide a "specific factual scenario" establishing a "plausible factual foundation" for allegations, and set forth the materiality of the discovery sought to the subject matter involved in the pending litigation. City of Santa Cruz, supra, 49 Cal.3d at 85-86. The court in City of Santa Cruz concluded that the defendant had made a showing of good cause for discovery of peace officer records based upon defense counsel's motion and his declaration. In said motion, defense counsel moved for discovery of complaints regarding the 5 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 958 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arresting officers' use of excessive force in effecting arrests against others. Santa Cruz, supra, 1149 Cal. 3d at 80-81. In this case, Lt. Smith's disciplinary records, any internal affairs investigation, or performance evaluations mentioning his failure to supervise Officer Waddell would be clearly relevant. Additionally, the factual scenario as delineated in the Declaration of Nicole A. Nalem is hereby incorporated via reference. Thus, Appellant has met his requirement to demonstrate good cause, relevance and materiality for the Hearing Officer to review and disclose the documents sought. C. THE CITY MUST PRODUCE A BROAD SCOPE OF FILE The City is obligated to produce all records that are "potentially relevant" material. When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring the trial court all "potentially" relevant documents to permit the trial court to examine the for itself. Santa Cruz, supra, 49 Cal.3d at 84, 260 Cal.Rptr. 520, 776 P.2d 222. (Emphasis added.) In this case, the requested documents are well within the scope of production of Pitchess and relevant as aforementioned. Appellant relies upon Fletcher v. Superior Court (2002) 100 Cal.AppAth 836 in requesting all files responsive to the Pitchess request in the possession or accessible to the City. The original source of the files is irrelevant. The contents of the files are the standard of materiality. This particularly is important as governmental agencies and entities share and form joint task forces. Any narrow definition of files would subvert the principles underlying Pitchess motions. Appellant also request that the Department disclose to Appellant the fact that no files exist, if this is the case, in addition to a statement that no requested files exist. D. ADMINISTRATIVE HEARING BODY DOES HAVE THE AUTHORITY TO RULE ON A PITCHESS MOTION An administrative body, such as the selected Hearing Officer, does have the authority to rule on a Pitchess motion, and to conduct the in camera inspection of peace officer personnel 6 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 959 1 2 3 4 5 6 7 8 X 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 records, as required by California Evidence Code Section 1043. In Riverside County Sheriff's Department v. Stiglitz (Drink -water) (2014) 60 Cal.4th 624, the Supreme Court recognized that ar administrative hearing body (i.e., arbitrator, hearing officer, or Civil Service Commission) could rule on a motion for the production of peace officer personnel records. The court based its holding on the language of Cal. Evid. Code Section 1043 which permits a Pitchess Motion to be filed "with the appropriate court or administrative body." Thus, during administrative appeals, an administrative officer may rule on a Pitchess motion where information contained in the peace officer personnel records is relevant to an issue raised in the officer's defense. Appellant requests that the Hearing Officer grant the Pitchess motion, where Appellant is seeking the listed information on file for San Luis Obispo Police Lt. Jeff Smith. III. CONCLUSION Appellant has made a showing beyond that required for an in -camera review. Appellant respectfully requests a review of all potentially relevant files and the copying and sealing of all files to preserve a record. In case no disciplinary records are found, Appellant respectfully requests that the Department duly notes that fact. Dated: July 28, 2015 Respectfully submitted, GASPARD CASTILLO HARPER, APC NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL 7 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 960 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF NICOLE A. NALEWAY IN SUPPORT OF APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER'S PERSONNEL RECORDS PITCHESS/BRADY- EVIDENCE CODE §1042): I, Nicole A. Naleway, declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and am one of the attorneys of record for the Appellant herein. The following is within my personal knowledge and I could and would testify thereto if called as a witness. 2. The appellant is asking for discovery detailed in the foregoing motion incorporated herein by reference]. 3. Kevin Waddell was terminated for allegations of false statements or giving false information to a Department Supervisor and for failure to report for duty in a punctual manner. 4. Additionally, Kevin Waddell was terminated for allegations of conduct detrimental to the Department by breaking or removing a vehicle part, in violation of California Vehicle Code 10852. 5. It is our information and belief that the proffered pretext for the termination of Appellant is based upon allegations regarding false statements to Lt. Smith regarding permission to be late on a specific date versus prior approval from Lt. Smith regarding being late occasionally and thereafter flexing. 6. Lt. Smith was Appellant's specific supervisor on the C.A.T. shifts. Based on testimony that was presented at the hearing, Lt. Smith was Appellant's supervisor in charge of Appellant's time cards for the C.A.T. shift. 7. It is our belief that Lt. Smith was disciplined and/or remediated after the Appellant was investigated for this "failure to supervise" Officer Waddell. 8. The allegations are based on information that was given to the San Luis Police Department, to include by Lt. Jeff Smith. 9. Based on testimony that was presented during hearing, it is our belief that the Department relied on the credibility and reliability of Lt. Smith as a historian of the events in the current case, specifically when determining issues of false statements to Lt. PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 961 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Smith versus prior approval from Lt. Smith regarding being late occasionally and thereafter flexing. 10. All the materials requested herein are directly relevant to the credibility determinations necessary to determine this case, as well as the multiple affirmative defenses to be presented by the Appellant throughout the course of the Hearing. 11. Additionally, upon information and belief, the information requested may lead to the discovery of other evidence which would assist us with the preparation and presentation of said appeal of termination. 12. I have no other source for obtaining the requested information and believe the information requested is readily available to the San Luis Obispo Police Department. Furthermore, there will be no unreasonable or time consuming searches to retrieve the documentation since Respondent City has possession of such material requested. 13. I do not have access to any of the San Luis Obispo Police Department internal investigation files. I do not have any access to investigations or discipline made by the Department without the process and assistance of the Hearing Officer. I declare under penalty of perjury that the above is true and correct. Executed this 28`h day of July, 2015, at Ontario, California. Nicole A. Naleway Attorney for Appellant, Kevin Waddell 9 _ PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 962 1 2 3 4 5 6 PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 3333 Concours St., Bldg. 4, Ste. 4100, Ontario, CA 91764. On July 28, 2015, I served the. following document described as APPELLANT'S NOTICE OF MOTION, MOTION FOR THE DISCOVERY AND DISCLOSURE OF PEACE OFFICER PERSONNEL FILE (PITCHESS MOTION) OF LIEUTENANT JEFF SNUTH; DECLARATION OF NICOLE A. NALEWAY IN SUPPORT THEREIN on the interested parties in this action by e-mail and a true and correct copy of the document Served via U.S. Mail) 7 San Luis Obispo Police Department 8 Attn: Captain Storton 1042 Walnut Street g H San Luis Obispo, CA 93401 10 Served via U.S. mail and email) Hearing Officer Christopher Cameron Arbitrator and Civil Service Hearing Officer c/o Southwestern Law School 3050 Wilshire Boulevard Los Angeles, CA 90010 ccameron@swlaw.edu 11 (Served via U.S. mail and email) City Attorney Christine Dietrick 12 990 Palm Street, Room 10 San Luis Obispo, CA 93401 13 cdietrick@slocity.org 14 --- X] I am readily familiar with the business practice for collection and processing of 15 correspondence for mailing with the United States Postal Service. I know that the correspondence was deposited with the United States Postal Service on the same 16 day this declaration was executed in the ordinary course of business. I know that 17 the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States mail at Ontario, California. 18 19 [ ] By Personal Service, I caused such envelope to be delivered by hand to the above addressee(s). 20 By Facsimile machine, I caused the above -referenced document(s) to be transmitted 21 to the above-named persons(s) 22 X] By Electronic Mail, I caused the above -referenced document(s) to be transmitted to 23 the above-named persons(s) 24 [ ] By Overnight Courier, I caused the above referenced document(s) to be delivered 25 To an overnight courier (UPS) for delivery to the above addressee(s). 26 [X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 27 28 Executed on July 28, 2015 at Ontario, California. t Na icy A ams PROOF OF SERVICE -1 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 963 July 29, 2095 a -Legal Services, Inc fax (805) 439-1802 ** RY r A Y ** Kasey A. Castillo, Esq. SBN: 236690 Gaspard Castillo Harper, APC FOR COURT USE ONLYUS 3333 Concours Street, Bldg. 4, Ste. 4100 Ontario, CA 91764 Attorney For: Appellant: Kevin Waddell TELEPHONE NO: (909) 466-5600 FAX NO (Optional) (909) 466-5610 E-MAIL ADDRESS (Optional): PLAINTIFF(name each): In Re the Matter of: CASE NUMBER: DEFENDANT(name each): The Appeal of Termination of Officer Kevin Waddell From San Luis Obis o Police Department HEARING DATE: DAY:. TIME: DEPT : Ref No or File No: PROOF OF SERVICE WADDELL AT THE TIME OF SERVICE I WAS AT LEAST 18 YEARS OF AGE AND NOT A PARTY TO THIS ACTION, AND I SERVED COPIES OF THE: Appellant's Notice of Motion, Motion for the Discovery and Disclosure of Peace Officer Personnel File (Pitchess Motion) of LT. Jeff Smith, Declaration of Nicole A. Naleway in Support Therein; California Public Records Act Request; Witness Fee Check #10476 - $15.00 PARTY SERVED: Custodian of Records for the San Luis Obispo Police Department PERSON SERVED: Tera Rapp, Records Supervisor - Authorized Agent DATE & TIME OF DELIVERY: 07/29/2015 11:30 am ADDRESS, CITY, AND STATE: 1042 Walnut Street San Luis Obispo, CA 93401 PHYSICAL DESCRIPTION: Age: 40 Weight: 170 Hair: Brown Sex: female Height: 5' 8 Eyes: Brown Race: Caucasian Marks: MANNER OF SERVICE: Personal Service - By personally delivering copies. WITNESS FEES: The witness demanded witness fees, and said witness was paid the sum of $15.00. Fee for Service: . County: San Luis Obispo 1, Registration No.: 225 Legal Services, Inc. 1060 Palm Street, Suite D Registered SAN LUIS OBISPO San Luis Obispo, CA 93401 805) 439-1800 www.elegalservicesinc.com I declare under penalty of perjury under the laws of the The State of California that the foregoing information contained in the return of service and statement of service fees is true and correct and that this declaration was executed on July 2 9, 2 015. COUNTY #205 Signature: Josh Holland Electronic Signature PROOF OF SERVICE 982(a)(23)[New July 1, 1987] Order#: 116503/General Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 964 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEFORE HEARING OFFICER CHRISTOPHER CAMERON IN RE THE MATTER OF THE APPEAL OF THE TERMINATION OF KEVIN WADDELL FROM THE SAN LUIS OBISPO POLICE DEPARTMENT CUSTODIAN OF THE RECORDS OF THE SAN LUIS OBISPO POLICE DEPARTMENT, Real Party in Interest OPPOSITION OF CUSTODIAN OF THE RECORDS OF THE SAN LUIS OBISPO POLICE DEPARTMENT TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DATE: August 20, 2015 TIME: 9:00 a.m. TO: THE HEARING OFFICER, THE ABOVE MENTIONED APPELLANT AND HIS ATTORNEY: The following Memorandum of Points and Authorities is hereby submitted on behalf of the Custodian of the Records of the San Luis Obispo Police Department in Opposition to the motion to discover confidential police personnel records. OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. RECEIVED JONES & MAYER AUG 11 2015 Gregory P. Palmer, Esq., SBN No. 133647 3777 North Harbor Boulevard SLO CITY AT Fullerton, California 92835 Telephone: (714) 446-1400 Facsimile: (714) 446-1448 gpp@jones-mayer.com Attorneys for Custodian of the Records of the San Luis Obispo Police Department BEFORE HEARING OFFICER CHRISTOPHER CAMERON IN RE THE MATTER OF THE APPEAL OF THE TERMINATION OF KEVIN WADDELL FROM THE SAN LUIS OBISPO POLICE DEPARTMENT CUSTODIAN OF THE RECORDS OF THE SAN LUIS OBISPO POLICE DEPARTMENT, Real Party in Interest OPPOSITION OF CUSTODIAN OF THE RECORDS OF THE SAN LUIS OBISPO POLICE DEPARTMENT TO APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DATE: August 20, 2015 TIME: 9:00 a.m. TO: THE HEARING OFFICER, THE ABOVE MENTIONED APPELLANT AND HIS ATTORNEY: The following Memorandum of Points and Authorities is hereby submitted on behalf of the Custodian of the Records of the San Luis Obispo Police Department in Opposition to the motion to discover confidential police personnel records. OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 965 1 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION 2 TO MOTION TO DISCOVER POLICE PERSONNEL RECORDS 3 INTRODUCTION 4 Appellant herein, Kevin Waddell, through his legal counsel has now filed with the 5 hearing officer three separate Pitchess motions seeking access to the confidential personnel file 6 information of three different San Luis Obispo Police Department Peace Officers. Those officer; 7 are Sergeant Chad Pfarr, Lieutenant Jeff Smith and Lieutenant Bill Proll. The previous set of 8 Pitchess motions also included a motion for the personnel file records of Lieutenant John 9 Bledsoe. Inasmuch as the San Luis Obispo Police Department Custodian of the Records has not 10 been served herein with a Pitchess motion for the personnel file contents of Lieutenant John 11 Bledsoe, as appellant did before, the custodian assumes the effort to get access to Lt. Bledsoe's 12 personnel file has been abandoned by appellant. 13 And as stated before in our opposition to the previously filed Pitchess motions, the 14 hearing officer herein stands in the same shoes as a Superior Court Judge in terms of ruling in 15 these Pitchess motions. On the one hand, some may think that since this is an administrative 16 case, the typically relaxed rules of administrative procedure apply to these motions. They do not. 17 This motion seeks to pierce a statutorily recognized right of confidentiality in the contents of a 18 peace officer's personnel file. The records sought are to subject of a right of privilege. The rules 19 of privilege in civil cases apply with the same rigidity in administrative cases. Just because one 20 of it ranks has a disciplinary action imposed upon him does not mean that former officer can use 21 the relaxed administrative rules attached to his hearing to tromp on a privilege held be a former 22 fellow officer. After all, the seminal case in this field, Riverside County Sheriff s Department v 23 Stiglitz (Drinkwater), infra, did not carve out any special service rules for Pitchess motions in the 24 administrative context. Therefore, these motions must be analyzed as if the hearing officer is 25 sitting as a judge in the Superior Court and the motion or motions should be granted only if the 26 declarations in support of the discovery requested, as to each named officer, meets the statutory 27 standard and case law standard it would in court. 28 /// I- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 966 I We hereby contend that each of the motions lack the requisite good cause to grant the 2 discovery requested and therefore we urge the hearing officer to deny appellant's motions. 3 II. 4 THE PITCHESS MOTIONS LACK SUFFICIENT GOOD CAUSE INSOFAR AS IT REQUIRES A WHOLESALE IN -CAMERA 5 REVIEW OF THREE POLICE OFFICERS PERSONNEL FILE. 6 Considerable confusion over what is required for a sufficient showing to justify an in - 7 camera review of confidential police personnel files was put to rest with the Supreme Court's 8 decision in City of Santa Cruz v. Municipal Court ( Kennedy) (1989) 49 Cal. 3d 74, 260 Cal. 9 Rptr. 520. In that case, the declaration of counsel for the person seeking the confidential 10 records, in addition to contending excessive force was used in the arrest, showed factually 11 how that excessive force occurred. The declaration said " ... officers... grabbed [defendant] 12 by the hair and threw him down to the ground. One officer then stepped on [defendant's] 13 head, while the other twisted his arm behind his back." (City of Santa Cruz, supra, at p. 80). 14 The court first viewed that declaration and because it set forth a specific factual scenario 15 to support the assertion that excessive force occurred, the materiality to the claim of self defense 16 was shown. But then the court went further and viewed in conjunction with the declaration, the 17 police report of the incident. That report showed considerable force was used in the 18 effectuation of the arrest. Viewed together as they were, the materiality of the information 19 requested was plainly demonstrated. (Santa Cruz, supra, at p. 85-87; also see People v. Memro 20 38 Cal. 3d 658, 214 Cal. Rptr. 832). 21 The movant is required, as stated in City of Santa Cruz and Memro, supra, to inform 22 the court, by using facts and not conclusions, what conduct of the officers constitutes 23 excessive force. It is this that is necessary for a showing of good cause for the discovery. 24 And as demonstrated by the Supreme Court's requirement that the court also review the 25 arrest report prepared by the officer, it is manifest that courts should not just take the 26 defense declaration as gospel and grant the discovery request. 27 The requirement for the use of facts to justify a Pitchess motion request for 28 discovery has been upheld in many cases. In People v. Navarro (1978) 84 Cal. App. 3d 2- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 967 1 2 3 4 5 6 7 8 0J 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 355,146 Cal. Rptr. 672, the court held that "evidence may be theoretically admissible under a particular section of the Evidence Code [1101] and yet not discoverable because not sufficiently relevant to the subject matter of the litigation." (Navarro, supra, at p. 359). Beyond mere admissibility, the plaintiff must show relevance and materiality to the subject matter of this litigation. See Evidence Code Section 1043(b)). In Navarro, the defendant sought records of false arrest and dishonesty. The request was supported by a declaration of defense counsel that stated they might contend Navarro had not voluntarily agreed to provide a urine sample, but was coerced to provide it by unlawful tactics and excessive force. The municipal court ordered the documents produced relying specifically upon the fact that such evidence of dishonesty would have been admissible under Evidence Code Sections I101(b), 780(e) and 787. The Court of Appeal struck down that argument as proper justification because it was merely a showing of theoretical admissibility. The court then went on to discuss whether relevancy had been shown. The court said "in a proper case and on a proper and substantial showing by way of a detailed affidavit in which defendant commits himself under oath' to a particular assertion of fact, it is conceivable the material sought might be discoverable. But this is not that case." (Navarro, supra at p. 359). Emphasis added). The court explained that defendant only averred he "may" contend the police coerced him into providing a urine sample and that was insufficient to show a plausible justification for the discovery. (Id.) In Cadena v. Superior Court (197 8) 79 Cal. App. 3d 212, 146 Cal. Rptr. 390, a motion requesting information from previous complaints of excessive force was granted because the defendant used facts to support his contention that excessive force was used and self-defense was claimed. The defendant in Cadena stated in his declaration in support of the motion that "certain Montebello police officers broke open the screen door of the Acosta home, grabbed and beat Mrs. Acosta and Victor Acosta, and that several other officers accosted and beat petitioner when he came out the front door." 1 Now, affidavits made on information and belief would be sufficient. (City of Santa Cruz (Kennedy), supra 3- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 968 I In Arcelona v. Municipal Court (1980) 113 Cal. App. 3d 523, 169 Cal. Rptr. 877, a 2 motion to discover previous complaints of excessive force should have been granted 3 because "counsel's supporting declaration outlining the events of May 21-22 provided 4 adequate factual details demonstrating the manner in which the requested records 5 pertained to his clients possible defenses. Thus, the declaration provided an adequate 6 factual foundation establishing a plausible justification for discovery." (Supra at page 7 530). (Emphasis added). 8 In City of Santa Cruz v. Superior Court (Rush) (1987) 190 Cal. App. 3d 1669, 236 Cal. 9 Rptr. 155, the defendant, charged with assaulting an officer, moved for discovery of, inter alia, 10 past dishonesty complaints. Defense counsel used facts to support his contention of excessive 11 force in his declaration, but made no averments to support his request for records of dishonesty. 12 The trial court denied a review of records of dishonesty because only excessive force was 13 involved in the case. (Santa Cruz (Rush), supra, at p. 1672). 14 The court went on to discuss how counsel's declaration was devoid of facts because 15 it was made on information and belief. Of course, the 1989 Santa Cruz case (Kennedy, 16 supra, rejected that requirement but retained the requirement for a factual showing to 17 support the discovery. Therefore, the discussion of the lack of factual support for the 18 discovery in Santa Cruz (Rush), supra, is still applicable to the present case. 19 The Rush court indicated that Navarro was questioned in People v. Memro, but 20 only as to its requirement that a personal affidavit is required for plausible justification. The 21 court also cited Lemelle v. Superior Court (1978) 77 Cal. App. 3d 148, 162, 143 Cal. Rptr. 22 450 where the court denied discovery because defendant's declaration stated no facts 23 pertaining to the incident. (Lemelle, supra). 24 While the case of Jalilie v. Superior Court (1987) 195 Cal. App. 3d 487, 240 Cal. 25 Rptr. 662, only decided the issue of a declaration made on information and belief and left 26 for the court to determine on remand the merits of his motion, the court did note that in 27 support of a request for records of dishonesty, the motion was "supported by a lengthy 28 declaration ... reciting the arresting officers ... history of falsifying reports and evidence 0 OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 969 I inpost hoc attempts to justify unwarranted arrests ... [J the affidavit referred in detail to 2 events inspecific cases and alleged the ... officers had a habit ... and practice of searching 3 people they suspect and later justifying such actions without regard to the truth of the 4 matter." (Jalilie, supra, at p. 489, emphasis added.) 5 What is meant by all this is while a declaration made on information and belief only will 6 not be held insufficient upon that ground, it still must contain sufficient facts about the incident 7 to show a plausible justification for the discovery. Put another way, where a declaration made of 8 information and belief is completely devoid of facts supporting the claim of excessive force, it 9 will fail for lack of substance, not form. 10 All of the previous reported decisions that have reached the issue have held that a factual 11 showing of materiality and relevance must be made before discovery of records of police 12 misconduct should be granted. 13 The holding of the 1989 City of Santa Cruz (Kennedy) case, supra, is the culmination of 14 this discussion requiring a sufficient factual justification for the discovery. As stated earlier, the 15 declaration in that case was found sufficient to support discovery of excessive force complaints 16 because it described factually how the contention of excessive force was supported. 17 The California Supreme Court enunciated the standard for demonstrating good cause in a 18 Pitchess motion again in Warrick v Superior Court (City of Los Angeles) (2005) 35 Cal. 4th 19 1011. The court said: 20 Regardless of how the materiality inquiry is described, however, a showing of good cause requires a defendant seeking Pitchess discovery21toestablishnotonlyalogicallinkbetweenthedefenseproposedand the pending charge, but also to articulate how the discovery being sought22wouldsupportsuchadefenseorhowitwouldimpeachtheofficer's version of events. 23 To show good cause as required by section 1043, defense counsel's 24 declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the 25 discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence(People v. Hustead, supra.., 26 74 Cal.App- 4"' at p. 417, LM E. v. Superior , (1987) 194 Cal.App. 3d 25, 32-33, 239 Cal- Rptr. 264) that would support those proposed 27 defenses. These requirements ensure that only information "potentially relevant" to the defense need be brought by the custodian of the officer's 28 records to the court for its examination in chambers. ( People v. Moot 5- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 970 1 (2001) 26 C. 4h 1216.). 2 What standard must a moving parry meet to show a "plausible" factual foundation for the Pitchess discovery requested? We conclude that a 3 plausible scenario of officer misconduct is one that might or could have 4 occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and 5 supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence 6 potentially admissible at trial. Such a showing "put[s] the court on 7 notice" that the specified officer misconduct "will likely be an issue at trial." (Santa Cruz, supra, 49 Cal.3d at p. 86.) Once that burden is met, 8 the defendant has shown materiality under section 1043. 9 To determine whether the defendant has established good cause for in - chambers review of an officer's personnel records, the trial court looks to 10 whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the 11 following inquiry: Has the defense shown a logical connection between the 12 charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer 13 misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the 14 proposed defense? Under what theory would the requested information be admissible at trial? If defense counsel's affidavit in support of the Pitchess 15 motion adequately responds to these questions, and states "upon 16 reasonable belief that the governmental agency identified has the records or information from the records" (§ 1043, subd. (B)(3)), then the defendant 17 has shown good cause for discovery and in -chambers review of potentially relevant personnel records of the police officer accused of misconduct 18 against the defendant. Warrick at 1021 - 27). 19 Applying all the aforementioned historical principles and the recitation of the law 20 from the Supreme Court in Warrick, supra to this matter and several concepts become clear 21 in "Pitchess" law. The Warrick court stated the declaration must articulate how the discovery 22 sought may lead to relevant evidence or may itself be admissible direct or impeachment 23 evidence that would support those proposed defenses. It was sufficient in City of Santa Cruz, 24 sqpr to factually claim that the officers handcuffed Howard Kennedy threw him down to 25 the ground by his hair, stepped on his head and twisted his arm behind his back.. The 26 Warrick court said an assertion of specific police misconduct must be both internally 27 consistent and support the defense proposed to the charges. The defense is required to make a 28 2 The Real Party in the Santa Cruz case 6- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 971 I showing which puts the court on notice that the specified officer misconduct will likely be an 2 issue at trial. It was sufficient in Warrick to factually claim that he was not present at the 3 location to sell drugs, but to buy drugs and that it was somebody else who threw down the 4 rocks of cocaine, not him. 5 The case of City of San Jose v. Superior Court (Eti) (1998) 67 Cal. App. 4' 1135 70 6 Cal Rptr. 2d 624, is a case that is almost identical to the situation involved in this matter. In 7 City of San Jose, supra, the defendant's declaration in support of a Pitchess motion which, like 8 the motion at issue here, targeted dishonesty records and stated: 9 • The consent to enter and search was not in fact obtained by the officers; 10 • There were material misrepresentations in the police reports and in court 11 testimony, which were made to conceal that fact, and; 12 • Evidence disclosed during the search was mishandled. 13 The court in City of San Jose, su ria, analyzed each one of these contentions and 14 explained how they were insufficient to support the motion. As to the consent to enter and 15 search, the court said more detail had to be provided, such as was the consent coerced and if 16 so, what were the means of coercion or was it a simple failure to obtain the consent. As to the 17 contention that there were material misrepresentations in the police report and in court 18 testimony; the court said that it lacked sufficient detail as to which statements were incorrect 19 and how they were untruthful. Finally, as to the third claim, the evidence disclosed during 20 the search was mishandled, the court again said it lacked sufficient detail as to which one of 21 the multiple items seized during the search were mishandled and how the booking of the 22 evidence was improper. The court held that based on the lack of detail the defendant failed to 23 establish a specific factual scenario supporting the motion and the motion should have been 24 denied. 25 The Second District Court of Appeal issued a decision on a Pitchess motion which is 26 also illustrative on the issue. Explaining what is required in a Pitchess declaration under 27 Warrick, supra, the court in Peoplev. Thompson (2006) 141 Cal. App. 4'h 1312, said 28 Thompson failed to show "good cause for the requested discovery because he did not 7_ OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 972 I present a specific factual scenario that is plausible when read in light of the pertinent 2 documents and undisputed circumstances." (Thompson at p. 1316). 3 In People v. Thompson, supra, the declaration simply claimed that the defendant was 4 not at the location of the arrest to buy drugs, no buy money was found on the defendant, and he 5 was only arrested because he was in an area where the officers were making arrests and when 6 they found out he had a criminal history they made the arrest. This showing was insufficient to 7 support the Pitchess motion. It failed to provide a factual account of the event from the defense 8 point of view and in a manner in which supported his proposed defenses. The motion should 9 have been denied. The motion at issue herein is very similar in some respects to the deficient 10 motion in People v. Thompson, supra. 11 To the same effect is People v Sanderson (2010) 181 Cal. App. 4th 1334, a decision 12 of the Fourth District Court of Appeal two years ago. In that case the defendant was 13 charged with making criminal threats over the phone while police were listening. The 14 police officers heard his threats. The defense Pitchess motion contained a declaration in 15 which it just denied that he made the threatening statement. This court found that 16 insufficient because the defense did not deny making the phone call or engaging in a 17 conversation with the victim and it failed to present an alternate version of the facts from 18 the defense point of view. Indeed, the Sanderson court found the Thompson case 19 particularly instructive. (Sanderson at 1341-42). 20 The context of this Pitchess motion is all important to the gravamen of this case. 21 This is not the typical criminal defense Pitchess motion which seeks access to records 22 pertaining to excessive force. This Pitchess motion arises from an administrative 23 disciplinary appeal in which the appellant claims the named officers lied in some way 24 relevant to his defense. It is that claim which sets the contours of any Pitchess type 25 discovery appellant is entitled to have reviewed. 26 In People v Memro (1985) 38 Cal 3d 658, the defense filed a Pitchess motion for 27 discovery. In the motion, Memro named 16 different officers, including the four Southgate 28 police officers who interrogated him following his arrest (Officers Sims, Gluhak, Carter 8- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 973 I 2 j 4 5 6 7 8 9 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and Greene) as well as 12 other officers who he claimed trained the four officers in engaging in coercive interrogation tactics. Memro requested all records of excessive force or violence filed against the officers. He sought this material to bolster his claim that his confession had been coerced. The trial court denied the motion. Memro was convicted and on appeal claimed that denial was in error. The California Supreme Court held the initial showing of good cause to grant the motion was met. Counsel's allegations were sufficient to put the court on notice that the voluntariness of the confession would be an issue in this case. Then the Supreme Court took up the notion of the scope of the discovery requested by Memro. In other words, since the declaration in support of the Pitchess motion was sufficient to grant the motion in the first place, what was the proper scope of the in -camera review? The Supreme Court said: On its face, Appellant's request for the identities of all complaints of excessive force was overly broad. Since Appellant sought the information to bolster his claim of involuntariness in the interrogation setting, only complaints by persons who alleged coercive techniques in questioning were relevant." (Memro at 685) Next the Supreme Court took up the request for both the interrogating and non - interrogating officers.3 The court held that the link between the interrogating and non - interrogating officers concerning this pattern of conduct was slight. Therefore, without some showing that any of the non -interrogating officers trained or otherwise had substantial contacts with any of the four interrogating officers, complaints about the former group were not discoverable." Memro at 686). Put another way, since Memro sought Pitchess discovery to bolster the involuntariness of his confession only those complaints about coercive interrogation tactics should be reviewed and only if those complaints were made against one or more of the four officers who participated in the alleged coercive interrogation of Memro. Thus, the in - 3 It was noted in Footnote 29 of the Memo opinion that the 16 names officers in the motion comprised "almost the whole [Southgate police] Department."( Memro at 686) 9- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 974 I camera review should have only included Officers Sims, Gluhak, Carter and Greene. 2 In applying the principles explained in the Memro, supra case to this opposition, the 3 first thing which must be discussed is whether the appellant herein, has stated sufficient 4 good cause, within his Pitchess motion entitling him to an in -camera review of some of the 5 sought after records. The Custodian of the Records contends that appellant has failed to 6 establish good cause for the discovery sought. 7 Curiously, less than one year ago, the California Supreme Court weighed in on this 8 very issue and issued an opinion which should be considered very instructive to this case. 9 In Riverside County Sheriffs Department v. Stiglitz (Drinkwater) 60 Cal. 4t' 624 10 ("Riverside"), the Supreme Court was asked to consider a pitchess motion filed in an 11 administrative discipline case. And unlike here, the pitchess motion filed in that case was 12 one which targeted many fellow Riverside County Sheriff deputies based on a claim of 13 disparate treatment. 14 Kristy Drinkwater ("Drinkwater") was employed as a Deputy Sheriff with the 15 Riverside County Sheriff's Department ("Department"). Drinkwater was terminated from 16 the Department for falsifying her payroll forms. She appealed her termination. Pursuant to 17 the MOU, Arbitrator Jan Stiglitz ("Stiglitz") was selected by the parties to be the hearing 18 officer at that appeal. 19 Drinkwater asserted that she intended to use the disparate treatment defense, 20 claiming that others had committed similar misconduct but were not fired. She filed a 21 "pitchess" motion before Stiglitz seeking personnel investigations of any department 22 employee who had been disciplined for similar acts of misconduct. She sought incident 23 summaries, rank of the officer and discipline imposed. Stiglitz denied the motion, without 24 prejudice, ruling that the department did not have to search its files for similar misconduct, 25 instead Drinkwater had to identify particular officers she believed had engaged in 26 misconduct relevant to her claim. 27 Drinkwater renewed her motion and identified 11 officers who allegedly committed 28 misconduct similar to hers. The matter then went through the Appellate Court system on the 10- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 975 I issue of whether a pitchess motion should be allowed in an administrative disciplinary 2 appeal hearing and whether a hearing officer or a court should handle it. Ultimately the 3 Supreme Court held a pitchess motion is allowed in such a hearing and a hearing officer like 4 Stiglitz is well-qualified to rule on them. 5 Throughout the case, the Supreme Court consistently repeated the fact that the 6 pitchess motion in this context must include affidavits that set forth the materiality of the 7 sought after records to the subject matter involved in the pending litigation. Thus, where 8 the affidavit fails to set forth the materiality to the disparate treatment claims of the party 9 seeking disclosure, the motion should be denied. 10 The court also held "the pitchess statutes reflected the legislatures attempt to balance 11 a litigant's discovery interest with an officer's confidentiality interest" (Riverside at 639). 12 That is a very important concept to keep in mind when evaluating this motion. The 13 Riverside court made particular note of the fact that unlike a typical pitchess motion in the 14 criminal court context which arises from an arrest event where the arresting officer at least 15 has some involvement in the litigation, typically as a witness, and whose credibility is 16 subject to challenge, this is not that case. "The question here is not whether the officers 17 might be credible, but whether the department decision makers granted those officers 18 disparate treatment" (Riverside at 641). 19 This all important concept, we contend, must be kept in mind in ruling on this 20 motion. The Pitchess motions filed in this administrative case has aspects to it which relate 21 both to disparate treatment and general dishonesty. This motion must be reviewed with this 22 in mind. 23 As the Supreme Court said in Riverside, supra, "we have also clarified that an 24 officer's entire personnel file need not be presented for review, only materials of the type 25 requested" (Riverside at 640, citing People v. Mooc, 26 Cal. 4th 1228-1230) and consider 26 "in the present case, such materials would be limited to incidents involving conduct similar 27 to Drinkwater's. This limitation balances privacy interests while permitting focused 28 discovery" (Riverside at 640). 11- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 976 I Applying all of the above to the situation presented by this motion and it should be 2 abundantly clear that the requests made in these motions are so substantially overbroad as to 3 violate the Supreme Court ruling in Memro, supra. Additionally, this is not solely the same 4 type of Pitchess motion authorized in the administrative context in the Riverside Sheriff, 5 supra, case. On the contrary, this is a Pitchess motion which targets both disparate 6 treatment and dishonesty records as to all of the named officers. Accordingly, the ruling on 7 this motion should be governed by the holdings of City -of San Jose, supra, People v 8 Thompson and People v Sanderson, supra. In other words the declaration in support of each 9 request for discovery must contain a sufficient factual account of the alleged dishonesty 10 perpetrated by each named officer in the disciplinary case at issue in this hearing and it has 11 to put for a sufficient factual account supporting the dishonesty allegation in a manner 12 which supports a plausible justification for the discovery sought. It is this the appellant 13 herein has failed to do and even a cursory review of each declaration attached to each 14 motion indicates this fairly clearly. 15 1. Sergeant Chad Pfarr 16 In this motion appellant seeks information concerning how the 17 department handled any misconduct it found or did not find on Sergeant Pfarr 18 which relates specifically to the event which lead to the charges against the 19 appellant. In this way and as to this motion, the Pitchess motion targeting 20 Sgt. Pfarr most closely resembles the motion described in the Riverside 21 County Sheriff's Department, supra, case inasmuch as it seeks to determine 22 how the department imposed discipline upon another employee involved in 23 the same event as appellant. 24 Inasmuch as the issue presented in this Pitchess motion is one based 25 upon a disparate treatment claim, some discussion of the contours of that 26 claim are in order here. In order to prevail on a claim of disparate treatment 27 one must show that similarly situated employees were treated differently and 28 that the reason for the existence of this disparity in treatment is some 12- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 977 1 impermissible reason. (Vasquez v. County of Los Angeles ( 9th Circ. 2003) 2 349 F.3d 635) This can be a difficult claim to support because the reasons 3 that an employer imposed specific sanctions on certain employees will almost 4 never be sufficient to permit the conclusion that the officer who seeks the 5 records was truly similarly situated, because the agency has broad discretion 6 to take almost innumerable factors into account in determining an appropriate 7 sanction for a particular officer. (See generally Talmo v. Civil Services 8 Commission (1991) 231 Cal. App. 3d 210.) 9 Disparate treatment of similarly situated employees may be an abuse 10 of discretion on the part of the public agency and consequently may provide a 11 basis for rescinding or modifying discipline (Pegues v. Civil Service 12 Commission (1998) 67 Cal. App. 4th at 104-106; Talmo, supra at 229-231; 13 See Harris v. Alcohol Beverage Control Appeals Board (1965) 62 Cal. 2d at 14 594-595.) While the claim that the punishment imposed is excessive in 15 comparison with punishment imposed on other personnel in similar 16 circumstances is a valid claim to make either in the employment discipline 17 context or in a retaliation claim, there is " no requirement that charges similar 18 in nature must result in identical penalties." (See Talmo, supra at 230; 19 P= sues, supra at 104-106.) 20 The entirety of this body of law consistently refers to "similarly 21 situated employees." In Vasquez v. County of Los Angeles, supra, 22 Individuals are similarly situated when they have similar jobs and display 23 similar conduct." (Vasquez at 641). Disparate treatment can come up when 24 other employees with qualifications similar to (another employee) were 25 treated more favorably." (Vasquez, supra at fn 5 citing McDonnell Douglas 26 v. Green (1973) 411 U.S. 792, 802). Employees in supervisory positions are 27 generally deemed not to be similarly situated to lower level employees 28 Vasquez, supra at 641-642). A showing is required that the "problematic 13- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 978 I conduct be of comparable seriousness" to be considered similarly situated 2 id). To be similarly situated, an employee must have the same supervisor, be 3 subject to the same standards and have engaged in the same conduct. 4 Vasuez, supra at fn 17 citing Hollins v. Atlantic Co., Inc. (6t' Circ., 1999) 5 188 F.3d 652, 659). 6 After carefully considering the above, it should appear inescapable thal 7 the appellant is not entitled to discovery what, if any, disciplinary action it 8 took on Sgt. Pfarr for any of his conduct in either the CAT shift event or the 9 Bentley event. We are mindful of the fact that the hearing officer expressed 10 his confusion with this portion of our argument that this Pitchess motion 11 targeted a disparate treatment claim. We will endeavor to explain better why 12 we believe the claim is applicable. 13 As was made clear in the Riverside Sheriff case, the Pitchess motion in 14 that case was based upon a claim of disparate treatment. Thus, as we see the 15 state of the law, a Pitchess motion in an administrative case is either (1) one 16 based on a claim of disparate treatment or (2) one based on a garden variety 17 claim of general dishonesty. We believe the Pitchess motions filed herein as 18 it relates to Sgt. Pfarr and Lt. Smith have attributes of both claims. The 19 reason we believe the disparate treatment claim is applicable to this motion is 20 because appellant seeks access to the investigation and any disciplinary result 21 from the investigation of the same subject matter for which appellant was 22 terminated. Appellant was terminated for lying to his supervisor and his 23 misconduct in the Bentley event. There is no evidence in the record to 24 suggest that Sgt. Pfarr did anything wrong in the CAT shift event. There has 25 been some evidence that Sgt. Pfarr may have done something wrong as it 26 relates to failing to properly supervise appellant as it relates to the Bentley 27 event. And appellant seeks the investigation of such misconduct by Sgt. Pfarr 28 and the disciplinary result if any. To the extent Lt. Smith supervised Sgt. 14- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 979 1 Pfarr during the relevant time period; this claim scoops him up as well. This 2 is where the claim made by appellant in this Pitchess motions of Sgt. Pfarr 3 and Lt. Smith dovetail with a disparate treatment claim. Indeed by the very 4 words contained in the motions, appellant seeks to " compare" the level of 5 discipline received by each man, if any, to the level received by appellant for 6 the same subject matter. (Sgt. Pfarr motion, p. 5, 11. 2-5; Lt. Smith motion, p. 7 5, 11. 2-5) That is the essence of a disparate treatment claim. We agree with 8 the hearing officer that disparate treatment has no basis in fact in this case for 9 the following reasons. 10 First, any misconduct at all committed by Sgt. Pfarr was of a 11 completely different character than appellants. Appellant actually engaged in 12 the acts alleged to have violated the rules, Sgt. Pfarr was not a participant in 13 the same, or even similar, misconduct as compared to appellant. At most, 14 Sgt. Pfarr could arguably be criticized for not taking appropriate action as a 15 sergeant of police at the Bentley accident scene. Such misconduct would be 16 in the nature of a failure to supervise and thus, as a sergeant, he is not a 17 similarly situated employee to that of the appellant who actually engaged in 18 the misconduct. Therefore, the motion should be denied on that ground alone. 19 Having dispelled the notion that the disparate treatment claim basis for 20 this Pitchess motion is in play, the only other possibility is that this is a 21 general dishonesty type Pitchess motion. It is not. There is no request for 22 dishonesty related records in the Pfarr Pitchess motion so that claim need not 23 be addressed. And even if it was thought to be in play, the declaration in 24 support of the motion fails to articulate any allegedly dishonest statement by 25 either Sgt. Pfarr or Lt. Smith that relates to their involvement in this case. As 26 stated in the case law expressed above, a Pitchess motion which targets 27 dishonesty of the named officers involved must contain a factual account of 28 the case from the viewpoint of the moving party which supports the claim that 15- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 980 I the named officers in the motion have been dishonest in some regard in the 2 case. This motion fails to do that. And one does not get to have reviewed the 3 performance evaluations of officers on a Pitchess motion. (See Arcelona v. 4 Municipal Court (1980) 113 Cal. App. 3d 523, 169 Cal. Rptr. 877and Cily of 5 Azusa v. Superior Court 191 Cal. App. 3d 693) 6 It is not enough to place a request for general dishonesty in the points 7 and authorities portion of the motion. The request for dishonesty related 8 records should be prominently plead in the notice of motion. Here, the points 9 and authorities state that "Sergeant Pfarr's credibility and reliability as a 10 historian a matter of determination for this hearing officer...". (See motion, 11 page 5, lines 1-2) Not only are we flummoxed by syntax problem with this 12 sentence in general, we are simply mystified as to how Sgt. Pfarr's status as a 13 historian has anything to do with this case. Nevertheless, this motion rises or 14 falls on the requests made, not on the contents of the points and authorities. 15 But again, out of an abundance of caution, the declaration is insufficient to 16 support a request for general dishonesty. 17 A general dishonesty request in a Pitchess motion is governed by the 18 City of San Jose, supra, People v Thompson, supra and People v Sanderson, 19 supra, cases. By that measure the declaration attached to the Pfarr motion 20 pales by comparison to the declarations in those cases. There is absolutely 21 nothing in the declaration in support of the Pfarr Pitchess motion which 22 supports in any way that he lied with regard to any fact in this case. All the 23 declaration states is that the allegations are based on information provided by 24 Sergeant Pfarr. Agreed, they were. But that is not enough to support a 25 Pitchess discovery request for dishonesty records. As stated in the case 26 authority, there has to be some showing that the discovery request is more 27 than just a mere request for the information sought because one wants it. That 28 is what the appellant's motion essentially is; a mere desire for the information 16- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 981 1 2 3 4 5' 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN because it wants it. The declaration in support of the motion is ten paragraphs in length. In fact, the declaration attached to this motion is identical to the declaration attached to the previous Pitchess motion which named Sgt. Pfarr with the exception of new paragraph 5. This is probably due to the tentative ruling of the hearing officer to grant the motion. Appellant probably thought not much more needed to be done to the declaration in order to get the motion granted. Nevertheless, it is still our contention that the motion is insufficient. Even with its ten paragraphs, all one gets out of reading the declaration is that appellant's counsel is an attorney licensed to practice, the appellant is asking for the discovery; Waddell was terminated for making false statements and failing to report for duty and taking car parts; Pfarr was investigated and disciplined for failing to supervise appellant (this is the new information not contained in the previous declaration); the information on which those charges are based came from Sgt. Harr; the material sought is relevant; may lead to other evidence; appellant has no other source for the information and it must be ordered by the hearing officer. That sparse a declaration is insufficient as against the declarations at issue in the case decisions bearing on Pitchess discovery. The motion should be denied. 2. Lieutenant Jeff Smith The Pitchess motion for records relating to Lieutenant Jeff Smith is virtually identical to the motion which targets Sgt. Pfarr. Thus, the comments made above with regard to Sgt. Harr apply as well to this motion. We would add, however, that the connection between appellant and any discipline imposed upon Lt. Smith for failure to supervise is even more tenuous than it is to Sgt. Harr because of Lieutenant Smith's higher rank and the fact that he was not present at any of the events in this case. 17- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 982 5 roil 7 8 9 10 11 121 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 There are more changes to the declaration attached to the motion naming Lieutenant Smith than there were to the one naming Sergeant Pfarr. That, too, is likely due to the statements made during the tentative ruling by the hearing officer. The tentative ruling made it clear more was needed to grant this motion. In comparing the previous declaration to the current one, it appears to us that paragraphs 5-7 and 9 are new. Paragraphs 6 and 7 only related to Lieutenant Smith's failure to supervise Appellant. Unlike Sergeant Pfarr there is nothing in the record thus far and no other evidence to support a failure to supervise charge against Lieutenant Smith. The failure to supervise charge against Sergeant Pfarr arose from the Bentley event. Lieutenant Smith had nothing to do with the Bentley event.4 Lieutenant Smith supervised the CAT shift. That Appellant was late for a shift which occurred while Lieutenant Smith was off duty and not even present and lied about receiving special permission from Lieutenant Smith to Sergeant Pfarr is not the fault of Lieutenant Smith. It is the fault of Appellant. There is no "failure to supervise" here. And as for the claim of dishonesty contained in virtually identical paragraphs 5 and 9, it is meritless. There is absolutely no evidence that Lieutenant Smith ever granted Appellant (1) specific permission to be late for his shift of October 19, 2013 and/or (2) blanket permission, explicitly or implicitly, to flex the start or end time of any CAT shift on appellants own accord. Appellant admitted that at many points in his interview with Lieutenant Bledsoe. (See City's Exhibit 21, p. 6) Appellant acknowledged that he did not have permission from Lieutenant Smith to arrive at 11:30 a.m., instead of 11:00 a.m., for the CAT shift on October 19, 2013. (See City's Exhibit 21, p. 6). Appellant also admitted at many points in his interview 4 Except for being interviewed about being told of the Bentley event months after it occurred by Sergeant Pfarr. 18- OPPO.OF TBE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 983 1 this notion that since he had been granted permission in the past to come in a 2 bit later or leave a bit early in the past,5 he felt he had carte blanche to flex his 3 start time on his own without Lieutenant Smith's permission was something 4 that he (Appellant) came up with and took too far. (See City's Exhibit 21, pp. 5 8 andl4). That came from Appellant, not Lieutenant Smith. More 6 fundamentally, appellant admitted in his interview that the only conversation 7 he had with Lt. Smith on October 18, 2013, was an "exchange" of 8 "pleasantries". (See City's Exhibit 21, pp. 11-12) In fact, Lieutenant Smith 9 was asked about that very topic in his re-interview and was adamant that 10 flexing like that on one's own accord was contrary to how he ran the CAT 11 shift and what he told the officers. (See City's Exhibit 20, p. 2). 12 Lieutenant Smith has been consistent on this point, not only in his 13 interviews and in his hearing testimony. There is no evidence to the contrary. 14 In ruling on this motion, the hearing officer is allowed to review other 15 relevant documents (see Warrick, supra and People v. Galan (2009) 178 Cal. 16 App. 4th 6). We encourage the hearing officer to review the interview of 17 Appellant and the re-interview of Lieutenant Smith, both of which occurred 18 on December 12, 2013 as support for these points. 19 Before the confidential personnel file of Lieutenant Smith is pierced, 20 the motion has to provide factual support for the contention that he has been 21 dishonest in some way with regard to this case. That has not been shown. 22 The motion must be denied. 23 4. Lieutenant Bill Proll 24 The Pitchess motion targeting Lt Proll appears to be entirely based on 25 the claim that city officials who reviewed the investigative report prepared by 26 Lt. Proll apparently did not actually listen to the recorded interviews and 27 28 5 All of which were with the express permission of Lieutenant Smith obtained prior to the shift (Appellant's Exhibit J,Kand Q 19- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 984 I simply relied on the accuracy of the summaries provided by Lt. Proll in his 2 investigation report. To that all we have to say, and we are not trying to be 3 disrespectful here, but, so what. There is absolutely no evidence anywhere in 4 the record or elsewhere that any interview summary provided by Lt. Proll was 5 materially inaccurate. In fact, one can conduct their own review of the actual 6 interviews conducted by Lt. Proll and the interview summaries in his report 7 with the record as it currently stands because many of the interviews 8 conducted by Lt. Proll have now been transcribed and made part of the 9 record. There are no glaring inaccuracies in the summaries provided by Lt. 10 Proll. So the fact that some of the reviewers relied on the accuracy of the 11 summaries of witness interviews by Lt. Proll rather than listening to the 12 recordings themselves, is (1) actually fairly typical of reviewers and (2) is not 13 all that important where the summaries are materially accurate. So, where is 14 the dishonesty as it relates to Lt. Proll? It is non-existent. Moreover, even if 15 someone can find a seemingly innocuous inaccuracy in a statement summary, 16 that does not mean Lt. Proll was being dishonest; it could be he is human. 17 And it does not mean he was trying to hide anything when the actual 18 recordings have always been available to all involved in this case, including 19 the appellant, to use to compare the recordings to the summaries. The motion 20 must be denied. 21 So, to sum up, in Memro, supra, the claim was a coercive interrogation. The court 22 held only complaints made by persons who alleged coercive interrogation tactics were 23 engaged in by the officers who allegedly engaged in the coercive interrogation in that case 24 should be reviewed. The same is true here as it relates to Sgt. Pfarr and Lt. Smith. Here, 25 the claim is disparate treatment does not lie when the employees at issue in this motion were 26 supervisory only and did not engage in the same of similar misconduct that appellant did. 27 Anything more is nothing short of traipsing through the confidential files of all of the 28 witnesses used by the department in this case to see if anything is in there. That is the sort 20- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 985 1 of "fishing expedition" frowned on by the courts. And as it relates to Lieutenant Proll, the 2 declaration in support of those motions are woefully inadequate and each motion should be 3 denied. 4 CONCLUSION 5 The motions should be denied consistent with this opposition. 6 Dated: August , 2015 Respectfully submitted, 7 8 JONES & MAYER 9 10 11 By. re P. Palmer 12 Attorneys for the Custodian of the San Luis Obispo Police Department 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21- OPPO.OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 986 0) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 3777 North Harbor Boulevard, Fullerton, California 92835. On August 7, 2015, I served the foregoing document described as OPPOSITION OF CUSTODIAN OF THE RECORDS OF THE SAN LUIS OBISPO POLICE DEPARTMENT TO APPELLANT'S MOTION FOR DISCOVERY OF PEACH OFFICER PERSONNEL FILE INFORMATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on each interested party, as follows: SEE ATTACHED SERVICE LIST X (Via Mail) I deposited such envelope, with postage thereon fully prepaid, in the mail at La Habra, California. I am readily familiar with the Law Offices of Jones & Mayer practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at La Habra, California, in the ordinary course of business. I am aware that on motion of the parties served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing affidavit. Overnite Express) I deposited such envelope in the depository at Fullerton, California ensure next day delivery. Via Personal Service) I caused to be delivered such envelope by hand to the offices of the addressees. Via Facsimile) I caused the within documents to be transmitted to telephonic facsimile to the addressees. X (Via E -Mail) I caused the within documents to be transmitted electronically to the e-mail address indicated above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 7, 2015 at Fullerton, California. 4LUiRRMILLF k PROOF OF SERVICE Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 987 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Christopher Cameron Arbitrator and Civil Service Hearing Officer Professor of Law c/o Southwestern Law School 3050 Wilshire Blvd. Los Angeles, CA 90010 Telephone: (213) 738-6749 Facsimile: (213) 738-6698 ccameron@swlaw.edu Kasey A. Castillo, Esq. Nicole A. Naleway, Esq. Gaspard Castillo Harper, APC 3333 Concours St., Bldg 4, Ste. 4100 Ontario, CA 91764 Telephone: (909) 466-5600 Facsimile: (909) 466-5610 kasey@GCHattorneys.com nikki@ GCHattorneys.com Attorneys for Appellant Kevin Waddell Christine Dietrick, Esq. City Attorney, City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Telephone: (805) 781-7140 cdietrick@slocity.org Chris Staley Operations Police Captain San Luis Obispo Police Department 1042 Walnut St. San Luis Obispo, CA 93401 cstaley@slocity.org SERVICE LIST 2 PROOF OF SERVICE Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 988 t242528KASEYACASTILLOSBN236690Kasey@castilloharpercomNICOLEANALEWAYSBN300701Nikki@castilloharpercomCASTILLOHARPERAPC3333ConcoursStBldg4Ste4100OntarioCA91764Telephone9094665600Fax9094665610AttorneysforAppellantKEVINWADDELLINRETHEMATTEROFTHEAPPEALOFTERMINATIONOFOFFICERKEVINWADDELLFROMTHESANLUISOBISPOPOLICEDEPARTMENTAPPELLANTSREPLYToSANLUISOBISPOPOLICEDEPARTMENTSOPPOSITIONTOAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERPERSONNELFILEINFORMATIONMEMORANDUMOFPOINTSANDAUTHORITIESINSUPPORTTHEREOFDatetoBeHeardAugust202015TOTHEHEARINGOFFICERANDOPPOSINGCOUNSELThefollowingMemorandumofPointsandAuthoritiesisherebysubmittedonbehalfofAppellantKevinWaddellinreplytoSanLuisObispoPoliceDepartmentsOppositiontoAppellantsMotionforDiscoveryofPeaceOfficerPersonnelFileInformationFitchessMotion123456789101112131415161711920212223BEFOREHEARINGOFFICERCHRISTOPHERCAMERON2627IIIAPPELLANTSREPLYTOSANLUISOBISPOPOLICEDEPARTMENTSOPPOSITIONTOAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERPERSONNELFILEINFORMATIOr Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 989 1MEMORANDUMOFPOINTSANDAUTHORITIES23IINTRODUCTIONANDSTATEMENTOFFACTS4AppellanthasfiledthreePitchessmotionsseekinginformationfromthepersonnelfiles5forthefollowingthreeSanLuisObispoPoliceDepartmentpeaceofficersSergeantChadPfarr6LieutenantJeffSmithandLieutenantBillProllEachindividualmotionspecificallylistedwhat7materialAppellantrequestedfromtheindividualpeaceofficersfileaswellaswhythatinformationwasrelevantandmaterialtoAppellantscase9IIARGUMENT10ATHEINFORMATIONINTHEPERSONNELFILESWHICHWERE11REQUESTEDISDIRECTLYRELATEDTOAPPELLANTSCLAIMOF12DISPARATETREATMENTANDDEPARTMENTSAPPARENTMOTIVEFORAPPELLANTSTERMINATION1314AppellantfiledanappealintheabovenamedmatteraftertheRespondentSanLuis15ObispoPoliceDepartmentterminatedhimwithoutjustcauseandwherethepenaltyof16terminationwasgrosslyexcessive17OneoftheprofferedbasisfortheterminationofAppellantisbaseduponallegations1regardingfalsestatementstoSergeantChadPfarrregardingarrivinglateandallegedcriminal1920conductdetrimentaltothedepartmentvehicletamperingBasedontestimonypresentedatthe21hearingitisAppellantsbeliefthatSergeantChadPfarrwasallegedlydisciplinedafter22AppellantwasinvestigatedforhislackofsupervisionofAppellantandLtJeffSmithwas23disciplinedandorremediatedaftertheAppellantwasinvestigatedforthisfailuretosupervise2425AppellantWhetherthosesupervisorswereactuallyinvestigatedforthisortheir26investigationswerejustpiggybackedonOfficerWaddellsandtheresultingdisciplineandor27remediationisrelevanttoAppellantsargumentregardingthepretextsurroundingthe28DepartmentsmotivationtoterminateAppellantAdditionallyitisrelevanttoAppellants2APPELLANTSREPLYTOSANLUISOBISPOPOLICEDEPARTMENTSOPPOSITIONTOAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERPERSONNELFILEINFORMATIOI Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 990 1disparatetreatmentargumentandspecifictothepenaltiesassessedinthismatter2TheRespondentreliedontheinternalaffairsinvestigationsthatwereconductedbythe3lieutenantsinthiscaseincludingtheircredibilitydetenninationsassessmentsofthewitnessesin4thiscaseThereforetheinformationthatAppellantrequestsfromLtProllspersonnelfileis6directlyrelevanttothecurrentmatterashewasoneoftheinvestigatorsmakingsucha7credibilitydeterminationThecredibilityandreliabilityofLtProllisamatterofdetermination8fortheHearingOfficerasheapparentlyauthoredstatementsandsummariescontainedin9Appellantsinternalaffairsinvestigationpacket10BAPPELLANTHASDEMONSTRATEDGOODCAUSEFORTIlEPRODUCTIONOFTHEPERSONNELRECORDSFORTHETHREEPEACEOFFICERS1213AshowingofgoodcauseismeasuredbyrelativelyrelaxedstandardsthatservetcinsuretheproductionfortrialcourtreviewofallpotentiallyrelevantdocumentsPeoplev14Gaines46Cal4th1721792009internalcitationandquotationmarksomittedInformatior15isconsideredmaterialifitwillfacilitatetheascertainmentofthefactsandafairtrialA16declarationbycounseloninformationandbeliefissufficienttostatefactstosatisfythf1718materialitycomponentofthatsectionHaggertyvSuperiorCourt117CalApp4th107910862004internalcitationandquotationmarksomitted1920HereAppellantisseekingrecordsnecessarytodefendagainsttheallegationsforwhicihewasterminatedTherecordssoughthereinarenecessaryastheyarelikelytogiveinformatior21oncredibilityandwillshowthatAppellantwassubjectedtodisparatetreatmentbasedonth22factthatotherpeaceofficersthatwereinvolvedinthetwoincidentsforwhichAppellantwa23investigatedandultimatelyterminatedweretreatedmorefavorablythanAppellantThisisth24casewithSergeantChadPfarrandLieutenantJeffSmith25Productionoftheserecordsnecessarilyincludespersonnelcomplaintsandcorrespondin26disciplineInformationpertainingtodisciplinaryproceedingsagainstpoliceofficersissubjectt27disclosureCityofSanJosevSuperiorCourt5Cal4th471993seealsoWelshvCityant2CouiiiofSanFrancisco87FSupp1293NDCal1995holdingthatinvestigativi3APPELLANTSREPLYTOSANLUISOBISPOPOLICEDEPARTMENTSOPPOSITIONTOAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERPERSONNELFILEINFORMATIO Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 991 1documentspertainingtopoliceofficerwhobroughtcivilemploymentactionagainstpolicechie2weresubjecttodisclosureAdditionallytherecordssoughtfromLtProllspersonnelfilear3necessaryforthepurposesofimpeachmentofLtProllscredibilityashewasthesoh4investigatorintheBentleyincidentandtheDepartmentreliedonhisreportinitsultimat5decisiontoterminateAppellant6InorderforAppellanttohavetheopportunitytoeffectivelyappealthiscaseth7personneldocumentssoughttobedisclosedbythismotionmustbereviewedbytheHearin8OfficeranddisclosedtotheextenttheHearingOfficerfindsthemrelevanttothesubjectmatte9ofthisactionAsAppellanthasnoalternativemethodforobtainingtheinformationsought10refusaltograntAppellantsrequestwouldresultinundueprejudicetoAppellant11Oncethetrialcourtconcludesthatthepartyseekingdisclosurehasmadeashowingo12goodcausethecourtconductsanincamerareviewoftherecordsanddisclosestheinformatioi13relevanttothesubjectmatterofthependinglitigationPeoplevMooc26Cal4th1216122142001EvidCode1045a15aSergeantChadPfarr16SgtPfarrspersonnelfileisabsolutelyrelevanttodeterminemultipleissuesii17AppellantscaseFirstSgtPfarrspersonnelfileisrelevantbecauseduringthecourseofthifl18hearingAppellantwasinformedthatSgtPfarrwasdisciplinedforhisallegedfailuret19supervisehimduringtheBentleyincidentWhateverinvestigationtookplaceinregardstoSgt20PfarrsfailuretodisciplineandthedisciplinethatSgtPfarrultimatelyreceivedcouk21potentiallyprovideevidencetowardsbothAppellantsdisparatetreatmentargumentaswellar22theDepartmentsmotivationtoterminateAppellant23SecondtheDepartmentconductedtwoseparateinternalaffairsinvestigationsagains24AppellanttowhichtheybasetheirultimatedecisiontoterminateAppellantInterestinglyboti25oftheseinternalaffairsinvestigationswereinitiatedbyreportingsofSgtChadPfarrandan26primarilybasedonstatementsthatSgtPfarrmadetotheDepartmentregardingAppellantIt27termsofthefirstinvestigationofAppellantfortheCATshiftincidentitwasSgtPfarrwhc28reportedthatAppellantprovidedfalsestatementstojjregardingcominginlateforhi4APPELLANTSREPLYTOSANLUISOBISPOPOLICEDEPARTMENTSOPPOSITIONTOAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERPERSONNELFILEINFORMATIOI Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 992 1overtimeassignmentonOctober192013Thisinvestigationisbasedonaconversationtha2occurredbetweenAppellantandSgtPfarraconversationthatwasnotrecordedBecauseol3SgtPfarrsstatementsAppellantisbeingchargedwithprovidingfalsestatementsto4supervisorIntermsofthesecondinvestigationofAppellantforallegedlyviolatingCaliforni5VehicleCodesection10852itwasSgtPfarrwhowrotethememorandumtotheDepartmen6abouttheBentleyincidentalmostayearafterthisincidentoccurred7ThereforenotonlyisSgtPfarrscredibilityandreliabilityasahistorianamattero8determinationforthisHearingOfficerthestatementsmadeduringthatinvestigationarc9relevantasisthelevelofdisciplinewhenassessedaloneandbycomparisontoOffice10WaddellparticularlyaftersomeofthesworntestimonyofSgtPfarrintheinstanthearing11bLieutenantJeffSmith12Appellanthasdemonstratedthatgoodcausefortheproductionofthepersonnelrecords13ofLtJeffSmithExistsAsstatedintheDeclarationofNicoleANalewayUJeffSmithwas14AppellantsspecificsupervisorontheCATshiftsBasedontestimonythatwaspresentedat1516thehearingLtSmithwasAppellantssupervisorinchargeofAppellantstimecardsforthe17CATshift18AdditionallyitwasdiscoveredduringthecourseofthehearingthatSgtPfarrhadtold19LtSmithabouttheallegedBentleyincidentmonthsbeforeanyinvestigationwasopenedon20AppellantDespiteLtSmithsknowledgeoftheallegedBentleyincidentnothingwasdoneand2122noinvestigationwasstartedonAppellantuntilDecember2013monthslaterThereforeitis23AppellantsinformationandbeliefthatLtSmithwasdisciplinedandorremediatedforfailure24tosuperviseAppellantBecauseofthesefactsAppellanthasshownthatgoodcauseexistsfor25theproductionofLtSmithspersonnelfile26cLieutenantBillProlJ27AppellanthasshownthatgoodcauseexistsfortheproductionofLtProllspersonnefileAstheinvestigatoroftheallegedBentleyincidentLtProllwasresponsiblefo5APPELLANTSREPLYTOSANLUISOBISPOPOLICEDEPARTMENTSOPPOSITIONTOAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERPERSONNELFILEINFORMATIO Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 993 1interviewingwitnessesmakingcredibilitydeterminationsaswellassummarizingwitness2interviewsforhisinvestigativereportThroughoutthecourseofthishearingtherehasbeer3evidencepresentedthatthefinaldecisionmakersdidnotlistentotheaudiointerviewsoftb4witnessesInsteadtheyretiedpurelyonthesummariesandcredibilitydeterminationsofLt5ProttwhenmakingtheirdecisiontoterminateAppellantThereforeLtProllspersonnelfil6andthecontentsthereinarenecessarytoassisttheHearingOfficertomakeacredibilit7determinationofLtProllDueprocessespeciallyinaterminationcasewhereallegationsamountingt9dishonestyareattheforefrontvitiatesinfavorofdisclosureandsuchdisclosureshouldb10construedexpansivelyinaccordancewiththecourtsdecisionsinFletcher1112CAPPELLANTSCOUNSELHASDEMONSTRATEDTHEMATERIALITYTOTHESUBJECTMATTERFORTHEREQUESTEDINFORMATION1314Appellantscounseldemonstratedgoodcauseandthematerialitytothesubjectmatterfo15eachofthedocumentsrequestedAdeclarationbycounseloninformationandbeliefI16sufficienttostatefactstosatisfythematerialitycomponentofthatsectionHaggertyv17SuperiorCourt117CalApp4th107910862004internalcitationandquotationmark18omittedIneachPitchessmotionandinherDeclarationAttorneyNalewaydelineatesthi19materialityoftheinformationfromthepersonnelfileforeachofthethreepeaceofficers20ForSergeantChadPfarrsPersonnelFileshestates213KevinWaddellwasterminatedforallegationsoffalsestatementsorgiving22falseinformationtoaDepartmentSupervisorandforfailuretoreportfordutyin23apunctualmanner244AdditionallyKevinWaddellwasterminatedforallegationsofconduct25detrimentaltotheDepartmentbybreakingorremovingavehiclepartviolation26ofVehicleCode1085227286APPELLANTSREPLYTOSANLUISOBISPOPOLICEDEPARTMENTSOPPOSITIONTOAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERPERSONNELFILEINFORMATIOI Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 994 q15ItisourbeliefthatSergeantPfanwasdisciplinedandlorremediatedafterthe2AppellantwasinvestigatedforSgtPfarrsfailuretosuperviseOfficer3Waddell46TheallegationsarebasedoninformationthatwasgiventotheSanLuis5PoliceDepartmentbySergeantChadPfarr67Allthematerialsrequestedhereinaredirectlyrelevanttothecredibility7determinationsnecessarytodeterminethiscaseaswellasthemultiple8affirmativedefensestobepresentedbytheAppellantthroughoutthecourseof9theHearingSeeExhibitAAppellantsNoticeofMotionMotionforthe10DiscoverycmdDisclosureofPeaceOfficerPersonnelFilePitchessMotionof11SergeantChadPfarrDecofNicoleANaleway37J1213ForLieutenantJeffSmithsPersonnelFileshestates143KevinWaddellwasterminatedforallegationsoffalsestatementsorgiving15falseinformationtoaDepartmentSupervisorandforfailuretoreportfordutyin16apunctualmanner174AdditionallyKevinWaddellwasterminatedforallegationsofconduct1detrimentaltotheDepartmentbybreakingorremovingavehiclepartin19violationofCaliforniaVehicleCode10852205Itisourinformationandbeliefthattheprofferedpretextfortheterminationof21AppellantisbaseduponallegationsregardingfalsestatementstoLtSmith22regardingpermissiontobelateonaspecificdateversuspriorapprovalfromLt23Smithregardingbeinglateoccasionallyandthereafterflexing246LtSmithwasAppellantsspecificsupervisorontheCATshiftsBasedon25testimonythatwaspresentedatthehearingUSmithwasAppellants26supervisorinchargeofAppellantstimecardsfortheCATshift277ItisourbeliefthatLtSmithwasdisciplinedandorremediatedafterthe28AppellantwasinvestigatedforthisfailuretosuperviseOfficerWaddell7APPELLANTSREPLYTOSANLUISOBISPOPOLICEDEPARTMENTSOPPOSITIONTOAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERPERSONNELFILEINFORMATIOI Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 995