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Home My WebLink AboutAdministrative Record Part 318TheallegationsarebasedoninformationthatwasgiventotheSanLuisPolice2DepartmenttoincludebyLtJeffSmith39Basedontestimonythatwaspresentedduringhearingitisourbeliefthatthe4DepartmentreliedonthecredibilityandreliabilityofLtSmithasahistorianof5theeventsinthecurrentcasespecificallywhendeterminingissuesoffalse6statementstoLtSmithversuspriorapprovalfromLtSmithregardingbeinglate7occasionallyandthereafterflexing810Allthematerialsrequestedhereinaredirectlyrelevanttothecredibility9determinationsnecessarytodeterminethiscaseaswellasthemultiple10affirmativedefensestobepresentedbytheAppellantthroughoutthecourseof11theHearingSeeExhibitBAppellantsNoticeofMotionMotionforthe12DiscoveryandDisclosureofPeaceOfficerPersonnelFilePitchessMotionof13LieutenantJeffSmithDecofNicoleANaleway31014ForLieutenantBillProllsPersonnelFileshestates163KevinWaddellwasterminatedforallegationsoffalsestatementsorgiving17falseinformationtoaDepartmentSupervisorandforfailuretoreportfordutyin18apunctualmanner194AdditionallyKevinWaddellwasterminatedforallegationsofconduct20detrimentaltotheDepartmentbybreakingorremovingavehiclepartin21violationofCaliforniaVehicleCode10852225TheallegationsarebasedoninformationthatwasgiventotheSanLuis23PoliceDepartmentbyLieutenantBillProllspecificallyhisAdministrative24InquiryofOfficerWaddellregardingtheBentleyincidentAI13005P256Basedontestimonythathasbeenpresentedatthehearingthusfarthe26DepartmentandtheCityreliedsubstantiallyontheinternalaffairsinvestigation27thatwasconductedbyLtProllandreliedonhiscredibilitydeterminationofthe28witnessesinthiscase8APPELLANTSREPLYTOSANLUISOBISPOPOLICEDEPARTMENTSOPPOSITIONTOAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERPERSONNELFILEINFORMATIO1 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 996 17Basedontestimonypresentedatthishearingthusfaritisclearthatthe2decisionmakersfortheCityandtheDepartmentreliedsubstantiallyonLt3ProllsreportandinvestigationregardingtheBentleyincidentSpecifically4CaptainStaleywhopreparedtheExecutiveRecommendationwhichwentto5ChiefGeselltestifiedthathedidnotlistentotheaudiorecordingsofthewitness6interviews78LikewisetheCityManagerKatieLichtigwhowasadmittedthatshewasthe8ultimatedecisionmakerinthiscasetestifiedonJuly242015thatshecouldnot9rememberwhethershehadlistenedtotheaudiorecordingsornot109Ifthedecisionmakersdidnotactuallylistentotheaudiorecordingsofthe11witnessinterviewsinthecurrentcaseitmaybeimpliedthattheyrelied12substantiallyontheaccuracyofLtProllsreportputtingLtProllscredibility13andreliabilityasahistorianofeventsatissueinthecurrentcase1410LtProllspersonnelfileisextremelyrelevanttothecurrentcaseespecially15anycomplaintandorinvestigationofLtProllinvolvingmisleadingorfalse16statementsinanyofficialmattermalicioustreatmentofwitnessesimproperuse17oflawenforcementpowerandhispropensityandmotivationtoretaliateandor18fabricate1911Allthematerialsrequestedhereinaredirectlyrelevanttothecredibility20determinationsnecessarytodeterminethiscaseaswellasthemultiple21affirmativedefensestobepresentedbytheAppellantthroughoutthecourseof22theHearingSeeExhibitCAppellantsNoticeofMotionMotionforthe23DiscoveryandDisclosureofPeaceOfficerPersonnelfilePitchessMotionof24LieutenantJohnBtedsoeDecofNicoleANaleway3112526BecauseAppellantshavecompliedwithallstatutoryrequirementsfordisclosure27Appellantsareentitledtoanincamerareviewofthematerialsandeventualdisclosure289APPELLANTSREPLYTOSANLUISOBISPOPOLICEDEPARTMENTSOPPOSITIONTOAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERPERSONNELFILEINFORMATIO Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 997 1IVTHECITYMUSTPRODUCEPOTENTIALLYRELEVANTMATERIAL2TheCityisobligatedtoproduceallrecordsthatconstitutepotentiallyrelevant3material4WhenatrialcourtconcludesadefendantsPitchessmotionshowsgoodcausefordiscoveryofrelevantevidencecontainedinalawenforcementofficerspersonnelfilesthecustodianoftherecordsisobligatedtobringtothetrialcourtall6potentiallyrelevantdocumentstopermitthetrialcourttoexaminethemforitselfPeoplevMooc26Cal4th121612292001quotingSantaCruzv7MunicipalCourt49Cal3d748419898InthiscaseAppellantrequestedinformationfromthepersonnelfilesofthepeac9officerswhowereinvolvedintheincidentsforwhichAppellantwasbeinginvestigatedforo10whowereinchargeofinvestigatingAppellantinwhichcasecredibilitywouldbeatissueBecausetherequesteddocumentsarewellwithinthescopeofproductionofPitchessan12relevantasdiscussedaboveAnynarrowinterpretationordefinitionofthedocumentssoughttc13bedisclosedwouldsubverttheprinciplesunderlyingPitchessmotions1415VCONCLUSION16BasedonthePitchessMotionsthisReplyBriefandtheDeclarationofNicoleA17NalewayAppellantrespectfullyrequestthattheHearingOfficerconductaniiicamerareviev18andorderproductionoftheaforementioneddocuments1920DatedAugust1320t5Respectfullysubmitted21CASTThLOHARPERAPCNICOLEANALEWAY24AttorneysforAppellantKEVINWADDELL2526272810APPELLANTSREPLYTOSANLUISOBISPOPOLICEDEPARTMENTSOPPOSITIONTOAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERPERSONNELFILEINFORMATIO Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 998 3791011121314151711920212223242526272PROOFOFSERVICEIdeclarethatIamovertheageofeighteen18andnotapartytothisactionMybusinessaddressis3333ConcoursStBldg4Ste4100OntarioCA91764OnAugust132015IservedthefollowingdocumentdescribedasAPPELLANTSREPLYTOSANLUISOBISPOPOLICEDEPARTMENTSOPPOSITIONTOAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERPERSONNELFILEINFORMATIONMEMORANDUMOFPOINTSANDAUTHORITIESINSUPPORTTHEREOFontheinterestedpartiesinthisactionbyplacingatrueandcorrectcopyofeachdocumentthereofenclosedinasealedenvelopeaddressedasfollowsServedviaOvernightMailOnTracServedviaEmailandUSMailD10010820731803CounselforSanLuisObispoPoliceSanLuisObispoPoliceDepartmentDepartmentAttnCustodialofRecordsAttnGregPalmer1042WalnutStreet3777NorthHarborBoulevardSanLuisObispoCA93401FullertonCA92835gpp@jonesmayercomServedviaEmailandUSMailServedviaEmailandUSMailHearingOfficerChristopherCameronCityAttorneyChristineDietrickArbitratorandCivilServiceHearing990PalmStreetRoom10OfficerSanLuisObispoCA93401doSouthwesternLawSchoolcdietrick@slocityorg3050WilshireBoulevardLosAngelesCA90010ccameron@swlaweduXJIamreadilyfamiliarwiththebusinesspracticeforcollectionandprocessingofconespondenceformailingwiththeUnitedStatesPostalServiceIknowthatthecorrespondencewasdepositedwiththeUnitedStatesPostalServiceonthesamedaythisdeclarationwasexecutedintheordinarycourseofbusinessIknowthattheenvelopewassealedandwithpostagethereonfullyprepaidplacedforcollectionandmailingonthisdateintheUnitedStatesmailatOntarioCalifornia1ByPersonalServiceIcausedsuchenvelopetobedeliveredbyhandtotheaboveaddresseesByfacsimilemachineIcausedtheabovereferenceddocumentstobetransmittedtotheabovenamedpersonssXByOvernightCourierIcausedtheabovereferenceddocumentstobedeliveredtoanovernightcourierUPSfordeliverytotheaboveaddresseesXBYELECTRONICMAILEMAILIservedtheforegoingdocumentbyelectronicmailemailcdietrick@slocityorgccameron@swlawedugpp@jonesmayercomXStateIdeclareunderpenaltyofperjuryunderthelawsoftheStateofCaliforniathattheaboveistrueandcorrectExecutedonAugust132015atOntarioCaliforniaPROOFOFSERVPancyAdams124561 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 999 cc v I f f l I H X J Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1000 IKASEYACASTILLOSBN236690NICOLEANALEWAYSBN3007012GASPARDCASTILLOHARPERAPC33333ConcoursStBldg4Ste4100OntarioCA917644Telephone9094665600Fax9094665610Kasey@GCHattorneyscom6AttorneysforAppellant7KEVINWADDELL8910BEFOREHEARINGOFFICERCHRISTOPHERCAMERON1112APPELLANTSNOTICEOFMOTIONINRETHEMATTEROFTHEMOTIONFORTHEDISCOVERYAND13APPEALOFTERMINATIONOFOFFICERDISCLOSUREOFPEACEOFFICERKEVINWADDELLFROMTHESANLUISPERSONNELFILEPITCHESS14OBISPOPOLICEDEPARTMENTMOTIONOFSERGEANTCHADPFARRDECLARATIONOFNICOLEA15NALEWAYINSUPPORTTHEREIN16DatetoBeHeardAugust20201517181920TOTHEHEARINGOFFICERANDOPPOSINGCOUNSEL2122PLEASETAKENOTICEthatonAugust202015at990PalmStreetSanLuisObispo23CA93401at900amAppellantKEVINWADDELLwillmovethattheHearingOfficer24ChristopherCameronhereinafterreferredtoastheHearingOfficerordertheabovenoticed25lawenforcementagencytomakeavailableforexaminationcopyingandforthehearingonthis2627motionthematerialsdescribedbelowregardingSanLuisObispoPoliceSergeantChadPfarr281AnyandalldocumentationincludingbutnotlimitedtoanyinternalinvestigationorinquiryintoSergeantChadPfarrsfailuretosupervisePITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1001 orallegationsthereofOfficerKevinWaddellinanycapacitythrough2andincludingthetimeperiodof2013201432AnyandalldisciplineadministeredtoPfarrstemmingfromany4allegationsoffailuretosuperviseAppellantWaddeltduringthetime5periodof2013201463AnyandallevaluationsquarterlyandannualofPfarrduringthetime7periodof201320144Anyandalldocumentationrelatedtothecopyingsealingandpreserving9ofallfilessubjecttorevieworpotentiallysubjecttoreviewsothata10meaningfulrecordforappellatereviewcanbemaintained111213DatedJuly22015Respectfullysubmitted14GASPARDCASTILLOHARPERAPCt516NICOLEANALEWAY17AttorneysforAppellantKEVINWADDELL18192021222324252627287PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1002 MEMORANDUMOFPOINTSANDAUTHORITIES23IINTRODUCTIONANDSTATEMENTOFFACTS4AppellantfiledanappealintheabovenamedmatteraftertheRespondentPolice5Departmentterminatedhimwithoutjustcauseandwherethepenaltyofterminationwasgrossly6excessiveAdditionallytheprofferedpretextfortheterminationofAppellantisbasedupon7allegationsregardingfalsestatementstoPfarrregardingarrivinglateandconductdetrimentalto8thedepartmentbybreakingorremovingvehiclepartsItisourbeliefthatSergeantPfarrwas9disciplinedandorremediatedaftertheAppellantwasinvestigatedforthisfailuretosupervise10OfficerWaddellAppellantisherebyrespectfullymovingtheHearingOfficerforanorderthatiitheSANLUISOBISPOPOLICEDEPARTMENTmakeavailablethefollowingmaterial12listedbelowregardingSergeantChadPfarr131Anyandalldocumentsrelatedtoanyinvestigationandorinquiryrelated14toSergeantChadPfarrandallegationsregardingthefailuretosupervise15OfficerKevinWaddell162AnyandalldisciplinerelatingtoanyfailuretosuperviseAppellant173AnyandallevaluationsofPfarrmentioningorreferencingthefailureto18superviseOfficerKevinWaddell194Anyandalldocumentsrelatedtocopyingsealingandpreservingallfiles20subjecttorevieworpotentiallysubjecttoreviewsothatameaningful21recordforappellatereviewcanbemaintained22ThesedocumentsandfilesarereasonablybelievedtobeinthecustodyoftheSanLuis23ObispoPoliceDepartment24125II26II271213PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1003 1IIARGUMENT2AUNDERSTATUTORYLAWAPPELLANTISENTITLEDTODISCLOSUREOFTHEREOUESTEDDOCUMENTSDiscoveryinadministrativeproceedingsisdeterminedonacasebycasebasisbyanalogytocriminalcasesShivelyvStewart196665Cal2d475479Discoveryofapeace6officerspersonnelrecordsandrecordsmaintainedpursuanttoCalPenalCodeSections8325and8327andtheproceduresetforthunderCalEvidCodeSections1040and1043isthe8exclusivemethodforobtainingthosepersonnelrecordsandtheinformationcontainedinthemDavisvCityofSacramento199424CalApp4th393reviewdenied10CalEvidCodeSections1043and1045donotlimitdiscoveryofconfidentialinformationfrompoliceofficerpersonnelfilestothetypesofinformationmentionedinthe12statutesortothefactsembracedbyPitchessvSuperiorCotirt197411Cal3d531becausethe13governmentcannotinvoketheprivilegetowithholdevidencerelevanttoanopposingparty14GardenGrovePoliceDeptvStiperCt200189CalApp4th430433reviewdeniedcitingPeoplevMernro198538Cal3d658679reviewdeniedcertdenied1996Emphasis16addedForthesamereasonPitchessmotionsmayalsobeusedtodiscoverinformationto17impeachanofficerscredibilityGardenGrove89CalApp4that433citingPeoplev18Hustead199974CalApp4th41041719AsnotedinFletchervSuperiorCourt2002100CalApp4th386reviewdeniedthe20languageofCaLEvidCodeSection1045aisexpansivethesectionexpresslypermits21discoveryofinformationpertainingtothemannerinwhichttheofficerlperformedhis22dutiesprovidedthatsuchinformationisrelevanttothesubjectmatterinvolvedinthe23pendinglitigationFletcher100CalApp4that389emphasisaddedfurtherasthe24CaliforniaSupremeCourtrecognizedinPeoplevMemro198538Cal3d658whenthe25LegislatureadoptedEvidenceCodeSection1043etseqitnotonlyreaffirmedbutalso26expandedtheprinciplesofPitchessMemrosttpra38Cal3dat68027InthiscasetheinformationtheAppelLantrequestsfromthepersonnelfileofSergeant28ChadPfarrisabsolutelyrelevantbecauseitrelatestoanumberofmattersatissueinthiscase4PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1004 1NotonlyisSergeantPfarrscredibilityandreliabilityasahistorianamatterofdeterminationfor2thisHearingOfficerthestatementsmadeduringthatinvestigationarerelevantasisthelevelof3disciplinewhenassessedaloneandbycomparisontoOfficerWaddellparticularlyaftersome4ofthesworntestimonyofSgtPfarrintheinstanthearingDueprocessespeciallyina5terminationcasewhereallegationsamountingtodishonestyareattheforefrontvitiatesinfavor6ofdisclosureandsuchdisclosureshouldbeconstruedexpansivelyinaccordancewiththe7courtsdecisionsinFletcher8BAPPELLANTHASDEMONSTRATEDGOODCAUSEFORTHEPRODUCTIONOFTHEPERSONNELRECORDSFORSERGEANTCHADPFARR101TheSoleRequirementForSuchGoodCauseIsADeclarationBased11UponInformationAndBelief12CalEvidCodeSection1043b3requiresgoodcausefortheproductionofrecords13Goodcauseisdefinedasthatstatementofthefactswhichsupportsrelevancytothesubject14matterofthelawsuitorthatwhichisreasonablycalculatedtoleadtoadmissibleevidence15Materialityisproperlyshowniftheinformationsoughtwillfacilitatetheascertainmentofthe16factsandafairtrialHaggerlyvSuperiorCourt2004117CalApp4th10791085Further17relevancetothesubjectmatteristobebroadlyconstruedandisnotlimitedtorelevancetothe18narrowissuesofthecaseGreyhoundCorporationvSuperiorCourt196156C2d3553781939020ThegoodcausestandardissetforthinCityofSantaCruzvMunicipalCourt19894921Cal3d74andspecifiesthatthedeclarationinsupportofthemotionrequestingapeaceofficers22personnelrecordsmustprovideaspecificfactualscenarioestablishingaplausiblefactual23foundationforallegationsandsetforththematerialityofthediscoverysoughttothesubject24matterinvolvedinthependinglitigationCityofSantaCruzsupra49Cal3dat858625ThecourtinCityofSantaCrztzconcludedthatthedefendanthadmadeashowingof26goodcausefordiscoveryofpeaceofficerrecordsbasedupondefensecounselsmotionandhis27declarationInsaidmotiondefensecounselmovedfordiscoveryofcomplaintsregardingthe285PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1005 IarrestingofficersuseofexcessiveforceineffectingarrestsagainstothersSantaCrztzsupra249Cat3dat80813EnthiscaseSgtPfarrsdisciplinaryrecordsanyinternalaffairsinvestigationor4performanceevaluationsmentioninghisfailuretosuperviseOfficerWaddellwouldbeclearly5relevantAdditionallythefactualscenarioasdelineatedintheDeclarationofNicoleANateway6isherebyincorporatedviareferenceThusAppellanthasmethisrequirementtodemonstrate7goodcauserelevanceandmaterialityfortheHearingOfficertoreviewanddisclosethe8documentssought9CTHECITYMUSTPRODUCEABROADSCOPEOFFILE10TheCityisobligatedtoproduceallrecordsthatarepotentiallyrelevantmaterial11WhenatrialcourtconcludesadefendantsFitchessmotionshowsgoodcausefor12discoveryofrelevantevidencecontainedinalawenforcementofficerspersonnelfilesthecustodianoftherecordsisobligatedtobringthetrialcourtallpotentially13relevantdocumentstopermitthetrialcourttoexaminetheforitselfSantaCruzsupra1449Cal3dat84260CalRptr520776P2d222Emphasisadded15InthiscasetherequesteddocumentsarewellwithinthescopeofproductionofFitchess16andrelevantasaforementionedAppellantreliesuponFletchervSuperiorCourt200210017CalApp4th836inrequestingallfilesresponsivetotheFitchessrequestinthepossessionor18accessibletotheCityTheoriginalsourceofthefilesisirrelevantThecontentsofthefilesare19thestandardofmaterialityThisparticularlyisimportantasgovernmentalagenciesandentities20shareandformjointtaskforcesAnynarrowdefinitionoffileswouldsubverttheprinciples21underlyingFitchessmotions22AppellantalsorequestthattheDepartmentdisclosetoAppellantthefactthatnofiles23existifthisisthecaseinadditiontoastatementthatnorequestedfilesexist24DADMINISTRATIVEHEARINGBODYDOESHAVETHEAUTHORITY25TORULEONAPITCHESSMOTION26AnadministrativebodysuchastheselectedHearingOfficerdoeshavetheauthoritytoruleonaPitchessmotionandtoconducttheincamerainspectionofpeaceofficerpersonnelrecordsasrequiredbyCaliforniaEvidenceCodeSection1043InRiversideCountySheriffs6PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1006 1DepartmentvStiglitzDrinkwater201460Cal4th624theSupremeCourtrecognizedthatat2administrativehearingbodyiearbitratorhearingofficerorCivilServiceCommissioncould3ruleonamotionfortheproductionofpeaceofficerpersonnelrecordsThecourtbasedits4holdingonthelanguageofCalEvidCodeSection1043whichpermitsaFitchessMotiontobe5filedwiththeappropriatecourtoradministrativebody6ThusduringadministrativeappealsanadministrativeofficermayruleonaFitchess7motionwhereinformationcontainedinthepeaceofficerpersonnelrecordsisrelevanttoanissue8raisedintheofficersdefenseAppellantrequeststhattheHearingOfficergranttheFitchess9motionwhereAppellantisseekingthelistedinformationonfileforSanLuisObispoPolice10SergeantChadPfarr11IIICONCLUSION12AppellanthasmadeashowingbeyondthatrequiredforanincamerareviewAppellant13respectfullyrequestsareviewofallpotentiallyrelevantfilesandthecopyingandsealingofall14filestopreservearecordIncasenodisciplinaryrecordsarefoundAppellantrespectfully15requeststhattheDepartmentdulynotesthatfact1617DatedJuly282015Respectfullysubmitted18GASPARDCASTILLOHARPERAPC192021NICOLEANALEWAYAttorneysforAppellantKEVINWADDELL222324252627287PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1007 1DECLARATIONOFNICOLEANALEWAYINSUPPORTOFAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERSPERSONNELRECORDS2PITCHESSBRADYEVIDENCECODE1O423INicoleANalewaydeclareasfollows411amanattorneydutylicensedtopracticelawintheStateofCaliforniaandam5oneoftheattorneysofrecordfortheAppellanthereinThefollowingiswithinmy6personalknowledgeandIcouldandwouldtestifytheretoifcalledasawitness72Theappellantisaskingfordiscoverydetailedintheforegoingmotionincorporatedhereinbyreference93KevinWaddellwasterminatedforallegationsoffalsestatementsorgivingfalse11informationtoaDepartmentSupervisorandforfailuretoreportfordutyinapunctualmanner12134AdditionallyKevinWaddellwasterminatedforallegationsofconduct14detrimentaltotheDepartmentbybreakingorremovingavehiclepartinviolationofCaliforniaVehicleCode1085215165ItisourbeliefthatSergeantPfarrwasdisciplinedandorremediatedafterthe17AppellantwasinvestigatedforSgtPfarrsfailuretosuperviseOfficerWaddell186AdditionallytheallegationsarebasedoninformationthatwasgiventotheSan19LuisPoliceDepartmentbySergeantChadPfarr20Allthematerialsrequestedhereinaredirectlyrelevanttothecredibility21determinationsnecessarytodeterminethiscaseaswellasthemultipleaffirmative22defensestobepresentedbytheAppellantthroughoutthecourseoftheHearing238Additionallyuponinformationandbelieftheinformationrequestedmayleadto24thediscoveryofotherevidencewhichwouldassistuswiththepreparationand25presentationofsaidappealoftermination26Ihavenoothersourceforobtainingtherequestedinformationandbelievethe27informationrequestedisreadilyavailabletotheSanLuisObispoPoliceDepartment2FurthermoretherewillbenounreasonableortimeconsumingsearchestoretrievethedocumentationsinceRespondentCityhaspossessionofsuchmaterialrequestedPITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1008 1101donothaveaccesstoanyoftheSanLuisObispoPoliceDepartmentinternal2investigationfilesIdonothaveanyaccesstoinvestigationsordisciplinemadebythe3DepartmentwithouttheprocessandassistanceoftheHearingOfficer45IdeclareunderpenaltyofperjurythattheaboveistrueandcorrectExecutedthis28th6dayofJuly2015atSanLuisObispoCalifornia712JJ9NicoleANalewayAttorneyforAppellant10KevinWaddell111213141516171192021222324252627289PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1009 1PROOFOfSERVICE2IdeclarethatIamovertheagcofeighteen18andnotapartytothisactionMybusinessaddressis3333ConcoursStBldg4Ste4100OntarioCA91764OnJuly282015IservedthefollowingdocumentdescribedasAPPELLANTS4NOTICEOFMOTIONMOTIONFORTHEDISCOVERYANDDISCLOSUREOFPEACEOFFICERPERSONNELFILEPITCHESSMOTIONOFSERGEANTCHAD5PFARRDECLARATIONOFNICOLEANALEWAYINSUPPORTTHEREINontheinterestedpartiesinthisactionbyemailandatrueandcorrectcopyofthedocument6aforementionedeachofrecipientslistedbelow7ServedviaUSMailServedviaUSmailandemailSanLuisObispoPoliceDepartmentHearingOfficerChristopherCameron8AttnCaptainStortonArbitratorandCivilServiceHearingOfficer1042WalnutStreetdoSouthwesternLawSchoolSanLuisObispoCA934013050WilshireBoulevard10LosAngelesCA9001011ccameron@swlaweduServedviaUSmailandemail12CityAttorneyChristineDietrick990PalmStreetRoom1013SanLuisObispoCA93401cdietrick@slocityorg14XlIamreadilyfamiliarwiththebusinesspracticeforcollectionandprocessingof15correspondenceformailingwiththeUnitedStatesPostalServiceIknowthatthecorrespondencewasdepositedwiththeUnitedStatesPostalServiceonthesame16daythisdeclarationwasexecutedintheordinarycourseofbusinessIknowthat17theenvelopewassealedandwithpostagethereonfullyprepaidplacedforcollectionandmailingonthisdateintheUnitedStatesmailatOntarioCalifornia18ByPersonalServiceIcausedsuchenvelopetobedeliveredbyhandtotheabove19addressees20ByFacsimilemachineIcausedtheabovereferenceddocumentstobetransmitted21totheabovenamedpersonss22XByElectronicMailIcausedtheabovereferenceddocumentstobetransmittedto23theabovenamedpersonss24ByOvernightCourierIcausedtheabovereferenceddocumentstobedelivered25ToanovernightcourierUPSfordeliverytotheaboveaddressees26XlStateIdeclareunderpenaltyofperjuryunderthelawsoftheStateofCaliforniathattheaboveistrueandcorrect27ExecutedonJuly282015atOntarioCalifornia28PROOFOfSERVICE1NKncyAdams Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1010 PLAINTIFFnameeachInRetheMatterofDEFENDANTnameeachTheAppealofTerminationofOfficerKevinWaddellFromSanLuisObisnoPolice1J4bIILI1EARNGDATEDAYTIMEDEPTRefNoorFileNoPROOFOFSERVICEWADDELLATTHETIMEOFSERVICEIWASATLEAST18YEARSOFAGEANDNOTAPARTYTOTHISACTIONANDISERVEDCOPIESOFTHEAppellantsNoticeofMotionMotionfortheDiscoveryandDisclosureofPeaceOfficerPersonnelFilePitchessMotionofSergeantChadPfarrDeclarationofNicoleANalewayinSupportThereinCaliforniaPublicRecordsActRequestWitnessFeeCheck104771500PARTYSERVEDCustodianofRecordsfortheSanLuisObispoPoliceDepartmentPERSONSERVEDTeraRappRecordsSupervisorAuthorizedAgentDATETIMEOFDELIVERY07129120151130amADDRESSCITYANDSTATE1042WalnutStreetSanLuisObispoCA93401PHYSICALDESCRIPTIONAge40SexfemaleRaceCaucasianWeight170Height58MarksHairBrownEyesBrownMANNEROFSERVICEPersonalServiceBypersonallydeliveringcopiesWiTNESSFEESThewitnessdemandedwitnessfeesandsaidwitnesswaspaidthesumof1500FeeforServiceCountySanLuisObispoRegistraUonNo225eLega1ServicesInc1060PalmStreetSuiteDRegisteredSANWISOBISPOCOUNTYSanLuisObispoCA934018054391800wwwelegalservicesinccornIdeclareunderpenaltyofperjuryunderthelawsoftheTheStateofCaliforniathattheforegoinginformationcontainedinthereturnofserviceandstatementofservicefeesistrueandcorrectandthatthisdeclarationwasexecutedonJuly292015205July292015KaseyACestilloEsqSBN236690GaspardCastllloHarperAPC3333ConcoursStreetBldg4Ste4100OntarioCA91764AttorneyForAppellantKevinWaddellTELEPHONENO9094665600FAXNOOptionalgag4665610EMAILADDRESSOptionalcLegalServicesIncfax8054391802BYFAFORCOURTUSEONLYCASENUMBERPROOFOFSERVICEJoshHollandElectronicSignature982a23llNewJuly119871Order1lESC4lGeneraI Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1011 I f f l I H X J Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1012 IKASEYACASTILLOSBN236690NICOLEANALEWAYSBN3007012GASPARDCASTILLOHARPERAPC33333ConcoursStBldg4Ste4100OntarioCA917644Telephone9094665600Fax9094665610Kasey@GCHattorneyscom6AttorneysforAppellant7KEVINWADDELL8910BEFOREHEARINGOFFICERCHRISTOPHERCAMERON1112APPELLANTSNOTICEOFMOTIONINRETHEMATTEROFTHEMOTIONFORTHEDISCOVERYAND13APPEALOfTERMINATIONOfOFFICERDISCLOSUREOFPEACEOFFICERKEVINWADDELLFROMTHESANLUISPERSONNELFILEPITCHESS14OBISPOPOLICEDEPARTMENTMOTIONOFLTJEFFSMITHDECLARATIONOFNICOLEA15NALEWAYINSUPPORTTHEREIN16DatetoBeHeardAugust20201517181920TOTHEHEARINGOFFICERANDOPPOSINGCOUNSEL21PLEASETAKENOTICEthatonAugust202015at990PalmStreetSanLuisObispo23CA93401at900amAppellantKEVINWADDELLwillmovethattheHearingOfficer24ChristopherCameronhereinafterreferredtoastheHearingOfficerordertheabovenoticed25lawenforcementagencytomakeavatlableforexaminationcopyingandforthehearingonthis26motionthematerialsdescribedbelowregardingSanLuisObispoPoliceLieutenantJeffSmith28IAnyandalldocumentationincludingbutnotlimitedtoanyinternalinvestigationorinquiryintoLtJeffSmithsfailuretosuperviseorPITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1013 IallegationsthereofOfficerKevinWaddellinanycapacitythroughand2includingthetimeperiodof2013201432AnyandalldisciplineadministeredtoSmithstemmingfromany4allegationsoffailuretosuperviseAppellantWaddellduringthetime5periodof2013201463AnyandallevaluationsofSmithduringthetimeperiodof20132014that7specificallyreferencecounselingdocumentingthefailuretosupervise8OfficerKevinWaddell94Anyandalldocumentationrelatedtothecopyingsealingandpreserving10ofallfilessubjecttorevieworpotentiallysubjecttoreviewsothata11meaningfulrecordforappellatereviewcanbemaintained121314DatedJuly22015Respectfullysubmitted15GASPARDCASTILLOHARPERAPCNICOLEANALEWAY18AttorneysforAppellantKEVINWADDELL192021222324252627282PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1014 1MEMORANDUMOFPOINTSANDAUTHORITIES23IINTRODUCTIONANDSTATEMENTOFFACTS4AppellantfiledanappealintheabovenamedmatteraftertheRespondentPolice5Departmentterminatedhimwithoutjustcauseandwherethepenaltyofterminationwasgrossly6excessiveAdditionallytheprofferedpretextfortheterminationofAppellantisbasedupon7allegationsregardingfalsestatementstoLtSmithregardingpermissiontobelateonaspecific8datevspriorapprovalfromLtSmithrebeinglateoccasionallyandthereafterflexingItisour9beliefthatLtSmithwasdisciplinedandorremediatedaftertheAppellantwasinvestigatedfor10thisfailuretosuperviseOfficerWaddellAppellantisherebyrespectfullymovingtheHearing11OfficerforanorderthattheSANLUISOBISPOPOLICEDEPARTMENTmakeavailable12thefollowingmateriallistedbelowregardingLtJeffSmith131Anyandalldocumentsrelatedtoanyinvestigationandorinquiryrelated14toLtJeffSmithandallegationsregardingthefailuretosuperviseOfficer15KevinWaddell162AnyandalldisciplinerelatingtoanyfailuretosuperviseAppellant173AnyandallevaluationsofLtSmithmentioningorreferencingthefailure1tosuperviseOfficerKevinWaddell194Anyandalldocumentsrelatedtocopyingsealingandpreservingallfiles20subjecttorevieworpotentiallysubjecttoreviewsothatameaningful21recordforappellatereviewcanbemaintained22ThesedocumentsandfilesarereasonablybelievedtobeinthecustodyoftheSanLuis23ObispoPoliceDepartment242526127283PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1015 IIARGUMENT2AUNDERSTATUTORYLAWAPPELLANTISENTITLEDTODISCLOSUREOFTHEREQUESTEDDOCUMENTSIDiscoveryinadministrativeproceedingsisdeterminedonacasebycasebasisbyanalogytocriminalcasesShivelyvStewart196665Cal2d475479Discoveryofapeace6officerspersonnelrecordsandrecordsmaintainedpursuanttoCalPenalCodeSections8325and8327andtheproceduresetforthunderCalEvidCodeSections1040and1043isthe2exclusivemethodforobtainingthosepersonnelrecordsandtheinformationcontainedinthemDavisvCityofSacramento199424CalApp4th393reviewdenied10CalEvidCodeSections1043and1045donotlimitdiscoveryofconfidentialinformationfrompoliceofficerpersonnelfilestothetypesofinformationmentionedinthe12statutesortothefactsembracedbyFitchessvSuperiorCotirt197411Cal3d531becausethe13governmentcannotinvoketheprivilegetowithholdevidencerelevanttoanopposingparty14GardenGrovePoliceDeptvSuperCt200189CalApp4th430433reviewdeniedciting15PeoplevMemro198538Cal3d658679reviewdeniedcertdenied1996Emphasis16addedForthesamereasonPitchessmotionsmayalsobeusedtodiscoverinformationto17impeachanofficerscredibilityGardenGrove89CalApp4that433citingPeoplev18Hustead199974CalApp4th41041719AsnotedinFletchervSuperiorCourt2002100CalApp4th386reviewdeniedthe20languageofCaEvidCodeSection1045aisexpansivethesectionexpresslypermits21discoveryofinformationpertainingtothemannerinwhichtheofficerperformedhis22dutiesprovidedthatsuchinformationisrelevanttothesubjectmatterinvolvedinthe23pendinglitigationFletcher100CalApp4that389emphasisaddedFurtherasthe24CaliforniaSupremeCourtrecognizedinPeoplevMemro198538Cal3d658whenthe25LegislatureadoptedEvidenceCodeSection1043etseqitnotonlyreaffirmedbutalso26expandedtheprinciplesofPitchessMemrosupra38Cal3dat68027InthiscasetheinformationtheAppellantrequestsfromthepersonnelfileofLtJeff28SmithisabsolutelyrelevantbecauseitrelatestoanumberofmattersatissueinthiscaseNot4PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1016 IonlyisLtSmithscredibilityandreliabilityasahistorianamatterofdeterminationforthis2HearingOfficerthestatementsmadeduringthatinvestigationarerelevantasisthelevelof3disciplinewhenassessedaloneandbycomparisontoOfficerWaddellparticularlyaftersome4ofthesworntestimonyofSgtChadPfarrthetestimonyofLtBledsoeandthedocumented5statementsofLtSmithandSgtPfarrintheinstanthearingDueprocessespeciallyina6terminationcasewhereallegationsamountingtodishonestyareattheforefrontvitiatesinfavor7ofdisclosureandsuchdisclosureshouldbeconstruedexpansivelyinaccordancewiththe8courtsdecisionsinFletcher9BAPPELLANTHASDEMONSTRATEDGOODCAUSEFORTHEPRODUCTIONOFTHEPERSONNELRECORDSFORLTJEFFSMITH10111TheSoleRequirementForSuchGoodCauseIsADeclarationBasedUponInformationAndBelief1213CalEvidCodeSection1043b3requiresgoodcausefortheproductionofrecords14Goodcauseisdefinedasthatstatementofthefactswhichsupportsrelevancytothesubjectmatterofthelawsuitorthatwhichisreasonablycalculatedtoleadtoadmissibleevidence16Materialityisproperlyshowniftheinformationsoughtwillfacilitatetheascertainmentofthe17factsandafairtrialHaggertyvSuperiorCourt2004117CalApp4th10791085Further18relevancetothesubjectmatteristobebroadlyconstruedandisnotlimitedtorelevancetothe19narrowissuesofthecaseGreyhoundCorporationvSuperiorCourt196156C2d3553782039021ThegoodcausestandardissetforthinCityofSantaCruzvMunicipalCourt19894922Cal3d74andspecifiesthatthedeclarationinsupportofthemotionrequestingapeaceofficers23personnelrecordsmustprovideaspecificfactualscenarioestablishingaplausiblefactual24foundationforallegationsandsetforththematerialityofthediscoverysoughttothesubject25matterinvolvedinthependinglitigationCityofSantaCruzstpra49Cal3dat858626ThecourtinCityofSantaCruzconcludedthatthedefendanthadmadeashowingof27goodcausefordiscoveryofpeaceofficerrecordsbasedupondefensecounselsmotionandhis28declarationInsaidmotiondefensecounselmovedfordiscoveryofcomplaintsregardingthe5PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1017 IarrestingofficersuseofexcessiveforceineffectingarrestsagainstothersSantaCruzslepra249Cal3dat80813InthiscaseLtSmithsdisciplinaryrecordsanyinternalaffairsinvestigationor4performanceevaluationsmentioninghisfailuretosuperviseOfficerWaddellwouldbeclearly5relevantAdditionallythefactualscenarioasdelineatedintheDeclarationofNicoleANaleway6isherebyincorporatedviareferenceThusAppellanthasmethisrequirementtodemonstrate7goodcauserelevanceandmaterialityfortheHearingOfficertoreviewanddisclosethe8documentssought910CTHECITYMUSTPRODUCEABROADSCOPEOFFILE11TheCityisobligatedtoproduceallrecordsthatarepotentiallyrelevantmaterial12WhenatrialcourtconcludesadefendantsFitchessmotionshowsgoodcausefor13discoveryofrelevantevidencecontainedinalawenforcementofficerspersonnelfilesthecustodianoftherecordsisobligatedtobringthetrialcourtallpotentially14relevantdocumentstopermitthetrialcourttoexaminetheforitselfSantaCruzsupra1549Cal3dat84260CalRptr520776P2d222Emphasisadded16InthiscasetherequesteddocumentsarewellwithinthescopeofproductionofFitchess17andrelevantasaforementionedAppellantreliesuponFletchervSuperiorCourt200210018CalApp4th836inrequestingallfilesresponsivetotheFitchessrequestinthepossessionor19accessibletotheCityTheoriginalsourceofthefilesisirrelevantThecontentsofthefilesare20thestandardofmaterialityThisparticularlyisimportantasgovernmentalagenciesandentities21shareandformjointtaskforcesAnynarrowdefinitionoffileswouldsubverttheprinciples22underlyingFitchessmotions23AppellantalsorequestthattheDepartmentdisclosetoAppellantthefactthatnofiles24existifthisisthecaseinadditiontoastatementthatnorequestedfilesexist25DADMINISTRATIVEHEARINGBODYDOESHAVETHEAUTHORITY26TORULEONAPITCHESSMOTION2728AnadministrativebodysuchastheselectedHearingOfficerdoeshavetheauthoritytoruleonaFitchessmotionandtoconducttheincamerainspectionofpeaceofficerpersonnel6PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1018 IrecordsasrequiredbyCaliforniaEvidenceCodeSection1043InRiversideCountySheriffs2DepartmentvStiglitzDrinkwater201460Cal4th624theSupremeCourtrecognizedthatat3administrativehearingbodyiearbitratorhearingofficerorCivilServiceCommissioncould4ruleonamotionfortheproductionofpeaceofficerpersonnelrecordsThecourtbasedits5holdingonthelanguageofCalEvidCodeSection1043whichpermitsaFitchessMotiontobe6filedwiththeappropriatecourtoradministrativebody7ThusduringadministrativeappealsanadministrativeofficermayruleonaPitchessmotionwhereinformationcontainedinthepeaceofficerpersonnelrecordsisrelevanttoanissue9raisedintheofficersdefenseAppellantrequeststhattheHearingOfficergranttheFitchess10motionwhereAppellantisseekingthelistedinformationonfileforSanLuisObispoPoliceLt11JeffSmith12IIICONCLUSION13AppellanthasmadeashowingbeyondthatrequiredforanincamerareviewAppellant14respectfullyrequestsareviewofallpotentiallyrelevantfilesandthecopyingandsealingofall15filestopreservearecordIncasenodisciplinaryrecordsarefoundAppellantrespectfully16requeststhattheDepartmentdutynotesthatfact1718DatedJuly282015Respectfullysubmitted19GASPARDCASTILLOHARPERAPC202122NICOLEANALEWAYAttorneysforAppellantKEVINWADDELL232425262727PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1019 DECLARATIONOFNICOLEANALEWAYINSUPPORTOFAPPELLANTSMOTIONFORDISCOVERYOFPEACEOFFICERSPERSONNELRECORDS2PITCHESSBRADYEVIDENCECODE1O423INicoleANalewaydeclareasfollows411amanattorneydulylicensedtopracticelawintheStateofCaliforniaandam5oneoftheattorneysofrecordfortheAppellanthereinThefollowingiswithinmy6personalknowledgeandIcouldandwouldtestifytheretoifcalledasawitness72Theappellantisaskingfordiscoverydetailedintheforegoingmotion8incorporatedhereinbyreference910KevinWaddellwasterminatedforallegationsoffalsestatementsorgivingfalse11informationtoaDepartmentSupervisorandforfailuretoreportfordutyinapunctualmanner12134AdditionallyKevinWaddellwasterminatedforallegationsofconduct14detrimentaltotheDepartmentbybreakingorremovingavehiclepartinviolationofCaliforniaVehicleCode1085215165Itisourinformationandbeliefthattheprofferedpretextfortheterminationof17AppellantisbaseduponallegationsregardingfalsestatementstoCtSmithregarding18permissiontobelateonaspecificdateversuspriorapprovalfromLtSmithregarding19beinglateoccasionallyandthereafterflexing206LtSmithwasAppellantsspecificsupervisorontheCATshiftsBasedon21testimonythatwaspresentedatthehearingLtSmithwasAppellantssupervisorin22chargeofAppellantstimecardsfortheCATshift23ItisourbeliefthatLtSmithwasdisciplinedandorremediatedafterthe24AppellantwasinvestigatedforthisfailuretosuperviseOfficerWaddell258TheallegationsarebasedoninformationthatwasgiventotheSanLuisPolice26DepartmenttoincludebyLtJeffSmith279Basedontestimonythatwaspresentedduringhearingitisourbeliefthatthe28DepartmentreliedonthecredibilityandreliabilityofLtSmithasahistorianoftheeventsinthecurrentcasespecificallywhendeterminingissuesoffalsestatementstoLtPITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1020 SmithversuspriorapprovalfromLtSmithregardingbeinglateoccasionallyand2thereafterflexing310Allthematerialsrequestedhereinaredirectlyrelevanttothecredibility4determinationsnecessarytodeterminethiscaseaswellasthemultipleaffirmative5defensestobepresentedbytheAppellantthroughoutthecourseoftheHearing6iiAdditionallyuponinformationandbelieftheinformationrequestedmayleadto7thediscoveryofotherevidencewhichwouldassistuswiththepreparationand8presentationofsaidappealoftermination9121havenoothersourceforobtainingtherequestedinformationandbelievethe10informationrequestedisreadilyavailabletotheSanLuisObispoPoliceDepartment11Furthermoretherewillbenounreasonableortimeconsumingsearchestoretrievethe12documentationsinceRespondentCityhaspossessionofsuchmaterialrequested13131donothaveaccesstoanyoftheSanLuisObispoPoliceDepartmentinternal14investigationfilesIdonothaveanyaccesstoinvestigationsordisciplinemadebythe15DepartmentwithouttheprocessandassistanceoftheHearingOfficer16171declareunderpenaltyofperjurythattheaboveistrueandcorrectExecutedthis28th18dayofJuly2015atOntarioCalifornia192021NicoleANaleway22AttorneyforAppellantKevinWaddell232425262729PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1021 1PROOFOFSERVICEServedviaUSMailServedviaUSmailandemailSanLuisObispoPoliceDepartmentHearingOfficerChristopherCameronAttnCaptainStortonArbitratorandCivilServiceHearingOfficer1042WalnutStreetdoSouthwesternLawSchoolSanLuisObispoCA934013050WilshireBoulevardLosAngelesCA90010ccameron@swlaweduServedviaUSmailandemailCityAttorneyChristineDietrick990PalmStreetRoom10SanLuisObispoCA93401cdietrick@slocityorgXIamreadilyfamiliarwiththebusinesspracticeforcollectionandprocessingofcorrespondenceformailingwiththeUnitedStatesPostalServiceIknowthatthecorrespondencewasdepositedwiththeUnitedStatesPostalServiceonthesamedaythisdeclarationwasexecutedintheordinarycourseofbusinessIknowthattheenvelopewassealedandwithpostagethereonfullyprepaidplacedforcollectionandmailingonthisdateintheUnitedStatesmailatOntarioCaliforniaByPersonalServiceIcausedsuchenvelopetobedeliveredbyhandtotheaboveaddresseesIByFacsimilemachineIcausedtheabovereferenceddocumentstobetransmittedtotheabovenamedpersonssXByElectronicMailIcausedtheabovereferenceddocumentstobetransmittedtotheabovenamedpersonssByOvernightCourierIcausedtheabovereferenceddocumentstobedeliveredToanovernightcourierUPSfordeliverytotheaboveaddresseesXStateIdeclareunderpenaltyofperjuryunderthelawsoftheStateofCaliforniathattheaboveistrueandcorrectExecutedonJuly282015atOntarioCalifornia2IdeclarethatIamovertheageofeighteen18andnotapartytothisactionMybusinessaddressis3333ConcoursStBldg4Ste4100OntarioCA91764OnJuly282015IservedthefollowingdocumentdescribedasAPPELLANTS4NOTICEOFMOTIONMOTIONFORTHEDISCOVERYANDDISCLOSUREOFPEACEOFFICERPERSONNELFILEPITCHESSMOTIONOFLIEUTENANTJEFF5SMITHDECLARATIONOFNICOLEANALEWAYINSUPPORTTHEREINontheinterestedpartiesinthisactionbyemailandatrueandcorrectcopyofthedocument6frrmntnntioflistedbelow78910111213141516171819202122232425262728VjtNancyAriamsPROOFOfSERVICEI Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1022 July292015aLegalServicesInsfax8054391802BYFAXKaseyACastillo2EsqSBN236690GaspardCastilloHarperAPC3333ConcoursStreetBldg4Ste4100OntarIoCA91764AttorneyForAppellantKevinWaddellPLAINTIFFnameeachInRetheMatterofDEFENDANTnameeachTheAppealofTerminationofOfficerKevinWaddellFromSanLuisObisnoPoliceDeoartmentATTHETIMEOFSERVICEIWASATLEAST18YEARSOFAGEANDNOTAPARTYTOTHISACTIONANDISERVEDCOPIESOFTHEAppellantsNoticeofMotionMotionfortheDiscoveryandDisclosureofPeaceOfficerPersonnelFilePitchessMotionofCTJeffSmithDeclarationofNicoleANalewayinSupportThereinCaliforniaPublicRecordsActRequestWitnessFeeCheck104761500PARTYSERVEDCustodianofRecordsfortheSanLuisObispoPoliceDepartmentPERSONSERVEDTeraRappRecordsSupervisorAuthorizedAgentDATETIMEOFDELIVERYADDRESSCITYANDSTATE07129120151130am1042WalnutStreetSanLuisObispoCA93401PHYSICALDESCRIPTIONAge40SexfemaleRaceCaucasianWeight170Height58MarksHairBrownEyesBrownMANNEROFSERVICEPersonalServiceBypersonallydeliveringcopiesWiTNESSFEESThewitnessdemandedwitnessfeesandsaidwitnesswaspaidthesumof1500FeeforServiceICountySanLuisObispoRegistrationNo225eLega1ServicesInc1060PalmStreetSuite0RegisteredSANWISOBISPOCOUNTYSanLuisObispoCA934018054391800wuwelegalservicesinccornIdeclareunderpenaltyofperjuryunderthelawsoftheTheStateofCaliforniathattheforegoinginformationcontainedinthereturnofserviceandstatementofservicefeesistrueandcorrectandthatthisdeclarationwasexecutedonJuly292015205SignatureJoshHollandEectmnicSignatureTELEPHONENO9094665600FAXNOtOptonaI9094665610EMAILADDRESSOptionalFORCOURTUSEONLYCASENUMBERHEARINGOATEDAYTIMEDEPTRetNaorFileNoPROOFOFSERVICEWADDELL982a23NJuly11987PROOFOFSERVICEOrder116503General Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1023 3 LL I H I H X J Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1024 IKASEYACASTILLOSBN236690NICOLEANALEWAYSBN3007012GASPARDCASTILLOHARPERAPC33333ConcoursStBldg4Ste4100OntarioCA917644Telephone9094665600Fax9094665610Kasey@GCHattorneyscom6AttorneysforAppellant7KEVINWADDELL8910BEFOREHEARINGOFFICERCHRISTOPHERCAMERONII12APPELLANTSNOTICEOFMOTIONINRETHEMATTEROFTHEMOTIONFORTHEDISCOVERYAND13APPEALOFTERMINATIONOFOFFICERDISCLOSUREOFPEACEOFFICERKEVINWADDELLFROMTHESANLUISPERSONNELFILEPITCHESS14OBISPOPOLICEDEPARTMENTMOTIONOFLIEUTENANTBILLPROLLDECLARATIONOFNICOLEA15NALEWAYINSUPPORTTHEREIN16DatetoBeHeardAugust20201517181920TOTHEHEARINGOFFICERANDOPPOSINGCOUNSEL2122PLEASETAKENOTICEthatonAugust202015at990PalmStreetSanLuisObispo23CA93401at900amAppellantKEVINWADDELLwillmovethattheHearingOfficer24ChristopherCameronhereinafterreferredtoastheHearingOfficerordertheabovenoticed25lawenforcementagencytomakeavailableforexaminationcopyingandforthehearingonthis2627motionthematerialsdescribedbelowregardingSanLuisObispoPoliceLieutenantBillProll281Theofficerspersonnelfiles2InternalAffairsInvestigationsorinquiriesoftheofficerPITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1025 13Anyandallcomplaintsformalorinformalfiledagainsttheofficerboth2internallyandexternally34Anycomplaintandorinvestigationinvolvingmisleadingorfalse4statementsinanyofficialmattermalicioustreatmentofwitnesses5improperuseoflawenforcementpowerpropensitymotivationto6retaliateandorfabricate75Anyandalldocumentsrelatedtocopyingsealingandpreservingallfilessubjecttorevieworpotentiallysubjecttoreviewsothatameaningful9recordforappellatereviewcanbemaintained101112DatedJuly282015Respectfullysubmitted13GASPARDCASTILLOHARPERAPC14NICOLEANALEWAY16AttorneysforAppellantKEVINWADDELL17181920212223242526272PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1026 MEMORANDUMOFPOINTSANDAUTHORITIES23IINTRODUCTIONANDSTATEMENTOFFACTS4AppellantfiledanappealintheabovenamedmatteraftertheRespondentPolice5Departmentterminatedhimwithoutjustcauseandwherethepenaltyofterminationwasgrossly6excessiveAdditionallytheprofferedpretextfortheterminationofAppellantisbasedupon7allegationsregardingfalsestatementstoSergeantPfarrregardingarrivinglateandconductdetrimentaltothedepartmentbybreakingorremovingvehiclepartsTheDepartmentandthe9CityreliedsubstantiallyontheinternalaffairsinvestigationthatwasconductedbyLtProlland10reliedonhiscredibilitydeterminationofthewitnessesinthiscaseAppellantisherebyIirespectfullymovingtheHearingOfficerforanorderthattheSANLUISOBISPOPOLICE12DEPARTMENTmakeavailablethefollowingmateriallistedbelowregardingLieutenantBill13Proll141Theofficerspersonnelfiles152InternalAffairsInvestigationsorinquiriesoftheofficer163Anyandallcomplaintsformalorinformalfiledagainsttheofficerboth17internallyandextemally184Anycomplaintandorinvestigationinvolvingmisleadingorfalse19statementsinanyofficialmattermalicioustreatmentofwitnesses20improperuseoflawenforcementpowerpropensitymotivationto21retaliateandorfabricate225Anyandalldocumentsrelatedtocopyingsealingandpreservingallfiles23subjecttorevieworpotentiallysubjecttoreviewsothatameaningful24recordforappellatereviewcanbemaintained25ThesedocumentsandfilesarereasonablybelievedtobeinthecustodyoftheSanLuis26ObispoPoliceDepartment271283PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1027 1IIARGUMENT2AUNDERSTATUTORYLAWAPPELLANTISENTITLEDTODISCLOSUREOFTHEREQUESTEDDOCUMENTSDiscoveryinadministrativeproceedingsisdeterminedonacasebycasebasisbyanalogytocriminalcasesShivelyvStewart196665Cal2d475479Discoveryofapeace6officerspersonnelrecordsandrecordsmaintainedpursuanttoCalPenalCodeSections8325and8327andtheproceduresetforthunderCalEvidCodeSections1040and1043istheexclusivemethodforobtainingthosepersonnelrecordsandtheinformationcontainedinthemDavisvCityofSacramento199424CalApp4th393reviewdenied10CalEvidCodeSections1043and1045donotlimitdiscoveryofconfidentialinformationfrompoliceofficerpersonnelfilestothetypesofinformationmentionedinthe12statutesortothefactsembracedbyPitchessvSuperiorCourt197411Cal3d531becausethe13governmentcannotinvoketheprivilegetowithholdevidencerelevanttoanopposingparty14GardenGrovePoliceDeptvSuperCt200189CalApp4th430433reviewdeniedciting15PeoplevMemro198538Cal3d658679reviewdeniedcertdenied1996Emphasis16addedForthesamereasonPitchessmotionsmayalsobeusedtodiscoverinformationto17impeachanofficerscredibilityGardenGrove89CalApp4that433citingPeoplev18Hustead199974CalApp4th41041719AsnotedinFletchervSuperiorCourt2002100CalApp4th386reviewdeniedthe20languageofCaLEvidCodeSection1045aisexpansivethesectionexpresslypermits21discoveryofinformationpertainingtothemannerinwhichttheofficerperformedhis22dutiesprovidedthatsuchinformationisrelevanttothesubjectmatterinvolvedinthe23pendinglitigationFletcher100CalApp4that389emphasisaddedFurtherasthe24CaliforniaSupremeCourtrecognizedinPeoplevMemro198538Cal3d65whenthe25LegislatureadoptedEvidenceCodeSection1043etseqitnotonlyreaffirmedbutalso26expandedtheprinciplesofPitchessMemrosupra38Cal3dat68027InthiscasetheinformationtheAppellantrequestsfromthepersonnelfileofLieutenant2BillProllisabsolutelyrelevantbecauseitrelatestoanumberofmattersatissueinthiscaseNot4PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1028 IonlyisLieutenantProllscredibilityandreliabilityasahistorianamatterofdeterminationfor2thisHearingOfficerthestatementsmadeduringthatinvestigationarerelevantasisthelevelof3disciplinewhenassessedaloneandbycomparisontoOfficerWaddellDueprocessespecially4inaterminationcasewhereallegationsamountingtodishonestyareattheforefrontvitiatesin5favorofdisclosureandsuchdisclosureshouldbeconstruedexpansivelyinaccordancewiththe6courtsdecisionsinFletcher7BAPPELLANTHASDEMONSTRATEDGOODCAUSEFORTHEPRODUCTIONOFTHEPERSONNELRECORDSFORLIEUTENANTBILLPROLL101TheSoleRequirementForSuchGoodCauseIsADeclarationBased11UponInformationAndBelief12CalEvidCodeSection1043b3requiresgoodcausefortheproductionofrecords13Goodcauseisdefinedasthatstatementofthefactswhichsupportsrelevancytothesubject14matterofthelawsuitorthatwhichisreasonablycalculatedtoleadtoadmissibleevidence15Materialityisproperlyshowniftheinformationsoughtwillfacilitatetheascertainmentofthe16factsandafairtrialHaggertyvSuperiorCotirt2004117CalApp4th10791085further17relevancetothesubjectmatteristobebroadlyconstruedandisnotlimitedtorelevancetothe1narrowissuesofthecaseGreyhoundCorporationvttperiorCourt196156C2d3553781939020ThegoodcausestandardissetforthinCityofSantaCruzvMunicipalCourt19894921Cal3d74andspecifiesthatthedeclarationinsupportofthemotionrequestingapeaceofficers22personnelrecordsmustprovideaspecificfactualscenarioestablishingaplausiblefactual23foundationforallegationsandsetforththematerialityofthediscoverysoughttothesubject24matterinvolvedinthependinglitigationCityofSantaCruzsttpra49Cal3dat858625ThecourtinCityofSantaCrttzconcludedthatthedefendanthadmadeashowingof26goodcausefordiscoveryofpeaceofficerrecordsbasedupondefensecounselsmotionandhis27declarationInsaidmotiondefensecounselmovedfordiscoveryofcomplaintsregardingthe285PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1029 IarrestingofficersuseofexcessiveforceineffectingarrestsagainstothersSantaCrttzsupra249Cal3dat80813InthiscaseLtProllspersonnelrecordsinternalaffairsinvestigationrecordsandany4complaintsfiledagainsthimespeciallyformisrepresentationorfalsestatementsareclearly5relevantandisevidenceoftheabuseofdiscretionbytheSanLuisObispoPoliceDepartmentin6thedeterminationofAppellantsdisciplineAdditionallythefactualscenarioasdelineatedinthe7DeclarationofNicoleANalewayisherebyincorporatedviareferenceThusAppellanthasmet8hisrequirementtodemonstrategoodcauserelevanceandmaterialityfortheHearingOfficerto9reviewanddisclosethedocumentssought1011CTHECITYMUSTPRODUCEABROADSCOPEOFFILE12TheCityisobligatedtoproduceallrecordsthatarepotentiallyrelevantmaterial13WhenatrialcourtconcludesadefendantsFitchessmotionshowsgoodcausefor14discoveryofrelevantevidencecontainedinalawenforcementofficerspersonnelfilesthecustodianoftherecordsisobligatedtobringthetrialcourtallpotentially15relevantdocumentstopermitthetrialcourttoexaminetheforitselfSantaCruzsupra1649Cal3dat84260CalRptr520776P2d222Emphasisadded17InthiscasetherequesteddocumentsarewellwithinthescopeofproductionofPitchess18andrelevantasaforementionedAppellantreliesuponFletchervSuperiorCourt200210019CalApp4th836inrequestingallfilesresponsivetothePitchessrequestinthepossessionor20accessibletotheCityTheoriginalsourceofthefilesisirrelevantThecontentsofthefilesare21thestandardofmaterialityThisparticularlyisimportantasgovernmentalagenciesandentities22shareandformjointtaskforcesAnynarrowdefinitionoffileswouldsubverttheprinciples23underlyingPitchessmotions24AppellantalsorequestthattheDepartmentdisclosetoAppellantthefactthatnofiles25existifthisisthecaseinadditiontoastatementthatnorequestedfilesexist26II27286PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1030 1DDISCOVERYOFTHEPERSONNELFILESSHOULDEXTENDBEYONDTHEFIVEYEARRULE2AppellantrequestsinformationbeyondthefiveyearperiodwhichrelatestobiasimpeachmentpropensitymotivationtofabricateInBradyvJlJaryland1963373US83theSupremeCourtrecognizedthat6Theprosecutionmustdisclosetodefenseanyevidencethatisfavorabletothe7accusedandismaterialontheissueofeitherguiltorpunishmentFailuretodosoviolatestheaccusedsconstitutionalrighttodueprocessBrady3738USat8687910ThefiveyearrulesetforthinEvidenceCodeSection1045subsectionb1isnotanabsolutebartodisclosureCityofLosAngelesvSuperiorCourtBrandon200229Cal4th12113UnlikeBradyCaliforniasFitchessdiscoveryschemeentitlesadefendantto13informationthatwillfacilitatetheascertainmentofthefactsattrialthatisallinformation14pertinenttothedefenseIdat1415AssuchunderboththeBradyFitchessdecisionsdocumentsmorethanfiveyearsold16arerelevanttoshowthewitnesscredibilityAppellantseeksthepersonnelfileofLtProtlfor17hisentirecareerforpurposesofimpeachment1819EADMINISTRATIVEHEARINGBODYDOESHAVETHEAUTHORITY20TORULEONAPITCHESSMOTION2122AnadministrativebodysuchastheselectedHearingOfficerdoeshavetheauthorityto23ruleonaFitchessmotionandtoconducttheincamerainspectionofpeaceofficerpersonnel24recordsasrequiredbyCaliforniaEvidenceCodeSection1043InRiversideCountySheriffsDepartmentvStigtitzDrinkwater201460Cal4th624theSupremeCourtrecognizedthataadministrativehearingbodyiearbitratorhearingofficerorCivilServiceCommissioncould27ruleonamotionfortheproductionofpeaceofficerpersonnelrecordsThecourtbasedits28holdingonthelanguageofCalEvidCodeSection1043whichpermitsaFitchessMotiontobefiledwiththeappropriatecourtoradministrativebody7PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1031 I1ThusduringadministrativeappealsanadministrativeofficermayruleonaFitchess2motionwhereinformationcontainedinthepeaceofficerpersonnelrecordsisrelevanttoanissue3raisedintheofficersdefenseAppellantrequeststhattheHearingOfficergranttheFitchess4motionwhereAppellantisseekingthelistedinformationonfileforSanLuisObispoPolice5LieutenantBillProll6IIICONCLUSION7AppellanthasmadeashowingbeyondthatrequiredforanincamerareviewAppellant8respectfullyrequestsareviewofallpotentiallyrelevantfilesandthecopyingandsealingofall9filestopreservearecordIncasenodisciplinaryrecordsarefoundAppellantrespectfully10requeststhattheDepartmentdulynotesthatfact1112DatedJuly282015Respectfullysubmitted13GASPARDCASTILLOHARPERAPC16NICOLEANALWAYAttorneysforAppellantKEVINWADDELL1718192021222324252627288PITCIIESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1032 DECLARATIONOfNICOLEANALEWAYINSUPPORTOfAPPELLANTSMOTIONFORDISCOVERYOfPEACEOFFICERSPERSONNELRECORDS2PITCHESSBRADYEVIDENCECODE1O423INicoleANalewaydeclareasfollows411amanattorneydulylicensedtopracticelawintheStateofCaliforniaandam5oneoftheattorneysofrecordfortheAppellanthereinThefollowingiswithinmy6personalknowledgeandIcouldandwouldtestifytheretoifcalledasawitness72Theappellantisaskingfordiscoverydetailedintheforegoingmotion8incorporatedhereinbyreference910KevinWaddellwasterminatedforallegationsoffalsestatementsorgivingfalse11informationtoaDepartmentSupervisorandforfailuretoreportfordutyinapunctualmanner1213AdditionalLyKevinWaddellwasterminatedforallegationsofconduct14detrimentaltotheDepartmentbybreakingorremovingavehiclepartinviolationofCaliforniaVehicleCode1085215165TheallegationsarebasedoninformationthatwasgiventotheSanLuisPolice17DepartmentbyLieutenantBillProllspecificallyhisAdministrativeInquiryofOfficer18WaddellregardingtheBentleyincidentA113005P196Basedontestimonythathasbeenpresentedatthehearingthusfarthe20DepartmentandtheCityreliedsubstantiallyontheinternalaffairsinvestigationthatwas21conductedbyLtProltandreliedonhiscredibilitydeterminationofthewitnessesinthis22case237Basedontestimonypresentedatthishearingthusfaritisclearthatthedecision24makersfortheCityandtheDepartmentreliedsubstantiallyonLtProllsreportand25investigationregardingtheBentleyincidentSpecificallyCaptainStaleywhoprepared26theExecutiveRecommendationwhichwenttoChiefGeselltestifiedthathedidnot27listentotheaudiorecordingsofthewitnessinterviews289PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1033 18LikewisetheCityManagerKatieLichtigwhowasadmittedthatshewasthe2ultimatedecisionmakerinthiscasetestifiedonJuly242015thatshecouldnot3rememberwhethershehadlistenedtotheaudiorecordingsornot49Ifthedecisionmakersdidnotactuallylistentotheaudiorecordingsofthe5witnessinterviewsinthecurrentcaseitmaybeimpliedthattheyreliedsubstantiallyon6theaccuracyofLtProllsreportputtingLtProllscredibilityandreliabilityasa7historianofeventsatissueinthecurrentcase8ioLtProllspersonnelfileisextremelyrelevanttothecurrentcaseespeciallyany9complaintandorinvestigationofLtProllinvolvingmisleadingorfalsestatementsin10anyofficialmattermalicioustreatmentofwitnessesimproperuseoflawenforcement11powerandhispropensityandmotivationtoretaliateandorfabricate1211Allthematerialsrequestedhereinaredirectlyrelevanttothecredibility13determinationsnecessarytodeterminethiscaseasweltasthemultipleaffirmative14defensestobepresentedbytheAppellantthroughoutthecourseoftheHearing1512Additionallyuponinformationandbelieftheinformationrequestedmayleadto16thediscoveryofotherevidencewhichwouldassistuswiththepreparationand17presentationofsaidappealoftermination18131havenoothersourceforobtainingtherequestedinformationandbelievethe19informationrequestedisreadilyavailabletotheSanLuisObispoPoliceDepartment20Furthermoretherewillbenounreasonableortimeconsumingsearchestoretrievethe21documentationsinceRespondentCityhaspossessionofsuchmaterialrequested2214IdonothaveaccesstoanyoftheSanLuisObispoPoliceDepartmentinternal23investigationfilesIdonothaveanyaccesstoinvestigationsordisciplinemadebythe24DepartmentwithouttheprocessandassistanceoftheHearingOfficer252611272810PITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1034 11declareunderpenaltyofperjurythattheaboveistrueandcorrectExecutedthis2gth2dayofJuly2015atOntarioCalifornia5NicoleANalewayAttorneyforAppellant6KevinWaddell78910111213141516171819202122232425262728IIPITCHESSMOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1035 1PROOFOFSERVICE21declarethatIamovertheageofeighteen18andnotapartytothisactionMybusinessaddressis3333ConcoursStBldg4Ste4100OntarioCA91764OnJuly282015IservedthefollowingdocumentdescribedasAPPELLANTS4NOTICEOFMOTIONMOTIONFORTHEDISCOVERYANDDISCLOSUREOFPEACEOFFICERPERSONNELFILEPITCHESSMOTIONOFLIEUTENANTBILL5PROLLDECLARATIONOFNICOLEANALEWAYINSUPPORTTHEREINontheinterestedpartiesinthisactionbyemailandatrueandcorrectcopyofthedocument6aforementionedeachofrecipientslistedbelowServedviaUSMailServedviaUSmailandemail7SanLuisObispoPoliceDepartmentHearingOfficerChristopherCameron8AtmCaptainStortonArbitratorandCivilServiceHearingOfficer1042WalnutStreetdoSouthwesternLawSchool9SanLuisObispoCA934013050WilshireBoulevardLosAngelesCA9001010ccameron@swlaweduServedviaUSmailandemail12CityAttorneyChristineDietrick990PalmStreetRoom1013SanLuisObispoCA93401cdietrick@slpcitvor14XIamreadilyfamiliarwiththebusinesspracticeforcollectionandprocessingofcorrespondenceformailingwiththeUnitedStatesPostalServiceIknowthatthe15correspondencewasdepositedwiththeUnitedStatesPostalServiceonthesame16daythisdeclarationwasexecutedintheordinarycourseofbusinessIknowthattheenvelopewassealedandwithpostagethereonfullyprepaidplacedfor17collectionandmailingonthisdateintheUnitedStatesmailatOntarioCalifornia18ByPersonalServiceIcausedsuchenvelopetobedeliveredbyhandtotheabove19addressees20IByFacsimilemachineIcausedtheabovereferenceddocumentstobetransmitted21totheabovenamedpersonss22XByElectronicMailIcausedtheabovereferenceddocumentstobetransmittedtotheabovenamedpersonss2324JByOvernightCourierIcausedtheabovereferenceddocumentstobedeliveredToanovernightcourierUPSfordeliverytotheaboveaddressees25XStateIdeclareunderpenaltyofperjuryunderthelawsoftheStateofCalifornia26thattheaboveistrueandcorrect27ExecutedonJuly282015atOntarioCalifornia28PROOFOFSERVICE1 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1036 KaseyCastilloEsqSBN236690GaspardCastilloHarperAPC3333ConcoursStreetBldg4Ste4100OntarioCA91764AttorneyForAppellantKevinWaddellPLAINTIFFnameeachInRetheMatterofDEFENDANTnameeachTheAppealofTerminationofOfficerKevinWaddellFromSanLuisObisooPoliceDeoartmentATTHETIMEOFSERVICEIWASATLEAST18YEARSOFAGEANDNOTAPARTYTOTHISACTIONANDISERVEDCOPIESOFTHEAppellantsNoticeofMotionMotionfortheDiscoveryandDisctosureofPeaceOfficerPersonnelFilePitchessMotionofLieutenantBillProllDeclarationofNicoleANalewayinSupportThereinCaliforniaPublicRecordsActRequestWitnessFeeCheck104751500PARTYSERVEDCustodianofRecordsfortheSanLuisObispoPoliceDepartmentPERSONSERVEDTeraRappaRecordsSupervisorAuthorizedAgentDATETIMEOFDELIVERY0712920151130amADDRESSCITYANDSTATE1042WalnutStreetSanLuisObispoCA93401PHYSICALDESCRIPTIONAge40SexfemaleRaceCaucasianWeight170Height58MarksHairBrownEyesBrownMANNEROFSERVICEPersonalServiceBypersonallydeliveringcopiesWiTNESSFEESThewitnessdemandedwitnessfeesandsaidwitnesswaspaidthesumof1500FeeforServiceICountySanLuisObispoRegistrationNo225heLegalServicesInc1060PalmStreetSuiteDRegisteredSANLUISOBISPOCOUNTYSanLuisObispoCA934018054391800wwwelegalservicesinccornIdeclareunderpenaltyofperjuryunderthelawsoftheTheStateofCaliforniathattheforegoinginformationcontainedinthereturnofserviceandstatementofservicefeesistrueandcorrectandthatthisdeclarationwasexecutedonJuly292015205JoshHollandElectronicSignatureJuly292019eLegalServicesIncfax8C54391802TELEPHONENO9094665600FAXNOOptional9094665610EMAILADDRESSOptionalBYFAFORCOURTUSEONLYCASENUMBERHEARINGDATEDAYTIMEDEPTRefNoorFileNoPROOFOFSERVICEWADDELL962a23NewJuly11987PROOFOFSERVICEOrder1l65O2IGeneraI Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1037 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 CASTELLO HARPER, APC 3333 Concours St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Kasey@CastilloHarper.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 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: October 2, 2015 TO THE HEARING OFFICER, THE CITY OF SAN LUIS OBISPO, ITS CITY I ATTORNEY AND COUNSEL FOR THE DEPARTMENT: PLEASE TAKE NOTICE that on October 2, 2015 at 990 Palm Street, San Luis Obispo, I California, 93401, at 9:00 a.m., Appellant KEVIN WADDELL, by and through his counsel, will I 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, PITCHESS MOTION FOR PERSONNEL FILE OF SERGEANT PFARRWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1038 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 copying, and for the hearing on this motion the materials described below regarding San Luis Obispo Police 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, 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 of Pfarr mentioning or referencing the failure to supervise Officer Kevin Waddell. 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 or authority or rank; propensity and motivation to retaliate and/or fabricate against those who are adverse and/or are competitive; any instances of officer misconduct. 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: September 10, 2015 Respectfully submitted, CASTILLO HARPER, APC NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL 2 PITCHESS MOTION FOR PERSONNEL FILE OF SERGEANT PFARRWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1039 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. According to the Department, the termination of Appellant is based upon allegations of false statements to Sgt. Pfarr regarding prior permission to arrive late, as well as conduct detrimental to the department by breaking or removing vehicle parts after a Bentley crash. It is the information and belief of Appellant that Sergeant Pfarr was disciplined and/or remediated after the Appellant was internally investigated for his "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, 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 personnel evaluations, or commentary therein, of Pfarr mentioning or referencing the failure to supervise Officer Kevin Waddell. 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 or authority or rank; propensity and motivation to retaliate and/or fabricate against those who are adverse and/or are competitive; any instances of officer misconduct; 3 PITCHESS MOTION FOR PERSONNEL FILE OF SERGEANT PFARRWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1040 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2I 22 23 24 25 26 27 28 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. 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 Ca1.3d 531, because government cannot involve the privilege to withhold evidence relevant to an opposing party. Garden Grove Police Dept. v. Super. Ct. (2001) 89 Cal.App.4th 430, 433, review denied (citing People v. Memro (1985) 38 Ca1.3d 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 deified, the language of Carl. 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 4 PITCHESS MOTION FOR PERSONNEL FILE OF SERGEANT PFARRWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1041 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 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. Meniro, supra, 38 Cal.3d at 680. In this case, the information the Appellant requests from the personnel file of Sgt. Chad Pfarr is absolutely relevant because it relates to a number of factual issues in dispute and affirmative defenses in this case. Not only is Sgt.'s Pfarr's credibility, percipient witness and reliability as a historian a matter of determination for this Hearing Officer [EC 7801, the statements made by him to during that investigation are relevant, as is the level of discipline, when assessed alone, and by comparison to that suffered by Officer Waddell, particularly after much of the sworn testimony of Sgt. Karr in the instant hearing. All the materials requested herein are directly relevant to the credibility determinations of Sergeant Pfarr, who is the Department's key witness in the case against Appellant for both the Bentley incident and the C.A.T. incident, as he is the initial reporting party in both matters. In the C.A.T. incident, Appellant's dishonesty charge is partially based on a conversation he had with Sgt. Pfarr in the sergeant's office. Sergeant Pfarr was the only person present for that conversation other than Appellant, and this conversation was not recorded. Therefore, anything in Sgt. Pfarr's personnel file that would tend to show that he is a dishonest, untrustworthy, or can be impeached, as it is Sgt. Pfarr's word against Appellant in terms of what was said during this conversation, would be extremely relevant. 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. Additionally, all the materials requested are relevant for Appellant to establish the affirmative defense of disparate treatment regarding the level of discipline for the Bentley incident. Appellant's disparate treatment defense is based on the fact that Appellant is informed and believes that Sgt. Pfarr received only a written warning (or letter of reprimand) for his failure to supervise Appellant." Additionally, it is Appellant's information and belief that Sgt. Pfarr's personnel file will show the extent of the Department's investigation (or lack thereof) of 5 PITCHESS MOTION FOR PERSONNEL. FILE OF SERGEANT PFARRWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1042 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 Sgt. Pfarr's misconduct. This information will go towards both a disparate treatment argument, as well as the Department's motivation to terminate Appellant. B. &UPELLANT 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 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 arresting officers' use of excessive force in effecting arrests against others. Santa Critz, 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. Nalev 6 PITCHESS MOTION FOR PERSONNEL FILE OF SERGEANT PFARRWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1043 4 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 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 -SCv 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 Iaw 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 Crttz, 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. ADN HNISTRATIVE 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 (Drink-wvater) (2014) 60 Cal.4th 624, the Supreme Court recognized that aj 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." PITCHESS MOTION FOR PERSONNEL FILE OF SERGEANT PFARRWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1044 1 2 3 4 5 6 7 8 9 10 11 12 I3 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 Sgt. 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: September 10, 2015 Respectfully submitted, CASTELLO HARPER, APC NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL 8 PITCHESS MOTION FOR PERSONNEL FILE OF SERGEANT PFARRWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1045 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 ITCIESS/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. Based on information that Appellant received from other Department members, as well as information that was discovered throughout the course of this hearing, Appellant is informed and believes 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 against Appellant arising from both the Bentley incident and the C.A.T. incident are based on information that was given to the San Luis Police Department by Sgt. Chad Pfarr up the chain of command in person, or in written memorandum. 7. All the materials requested herein are directly relevant to the credibility determinations of Sgt. Pfarr, who is one of the Department's key witnesses in the case against Appellant for both the Bentley incident and the C.A.T. incident. It is Appellant's information and belief that both investigations of Appellant began due to Sgt. Pfarr's 9 PITCHESS MOTION FOR PERSONNEL FILE OF SERGEANT PFARRWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1046 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 8. 19. reporting to the Department what he believed to be instances of misconduct and/or issues with integrity" on the part of the Appellant. Based on the information Appellant received in his investigative packet for the C.A.T. incident, Appellant's dishonesty charge is partially based on a conversation he had with Sgt. Pfarr in the sergeant's office. Pfarr was the only person present for that conversation other than Appellant, and this conversation was not recorded. Therefore, Sgt. Pfarr's personnel file is extremely relevant for impeachment purposes, as it is Sgt. Pfarr's word against AppelIant's in terms of what was said during this conversation. This conversation, or at least Pfarr's version of it, was then communicated to Lt. Jeff Smith via telephone, and written memorandum (and later to internal affairs investigators). It is Appellant's information and belief that anything in the personnel file tending to show lack of credibility and/or veracity on the part of Pfarr would weigh in favor of the Appellant's version of events, assist dispelling any notion of "integrity issues," and show the chain of bias of the administration in apparently automatically accepting the statements/opinion/proclamations of a sergeant or Pfarr over that of an officer or Waddell. As for the Bentley incident, all the materials requested are relevant for Appellant to establish the affirmative defense of disparate treatment regarding the level of discipline Sgt. Pfau received for his "failure to supervise" Appellant, in relation to the Bentley incident. Appellant's disparate treatment defense is based on the fact that Appellant is informed and believes that Sgt. Pfarr received only a written warning (or letter of reprimand) for his "failure to supervise Appellant," despite conflicting statements from Pfarr that the Appellant played a joke, and/or committed a crime. Additionally, it is Appellant's information and belief that Sgt. Pfarr's personnel file will show the extent of the Department's investigation (specifically, the lack thereof) of Sgt. Harr's misconduct or culpability in this instance. The information garnered will go towards both a disparate treatment argument/defense, as well as the Department's ultimate motivation to terminate Appellant. 10 PITCHESS MOTION FOR PERSONNEL FILE OF SERGEANT PFARRWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1047 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 Additionally, it is Appellant's information and belief that Sgt. Pfarr received a comment in one of his Department employment evaluations reflecting Sgt. Pfarr's failure to supervise" Appellant in the Bentley incident. What was said in this evaluation is relevant to Appellant's affirmative defense of disparate treatment and the Department's motivation to terminate Appellant. 10. 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. 11. 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 10th day of September, 2015, at San Luis Obispo, California. Nicole A. Naleway Attorney for Appellant, Kevin Waddell PITCHESS MOTION FOR PERSONNEL FILE OF SERGEANT PFARRWaddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1048 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. Mybusinessaddressis3333ConcoursSt., Bldg. 4, Ste. 4100, Ontario, CA 91764. On July 28, 201.5,1 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 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: 7 (Served via Personal Service ONLY via e- (Served via U.S. mail and email) le al service Hearing Officer Christopher Cameron8SanLidsObispoPoliceDepartmentArbitratorandCivilServiceHearingOfficer 9 Ann. Captain Storton c/o Southwestern Law School 1042 Walnut Street 3050 Wilshire Boulevard 10 San Luis Obispo, CA 93401 Los Angeles, CA 90010 11 ecameron@swlaw.edu l2 Served via U S mail and email) y Attorney Christine Dietrich 13 Palm Street, Room 10 Luis Obispo, CA 93401 14 etrick@slocity.org 15 [] 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 16 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 that17theenvelopewassealedand, with postage thereon fully prepaid, placed for 18 collection and mailing on this date in the United States mail at Ontario, California. 19 [X] By Personal Service, I caused such envelope to be delivered by hand to the above 20 addressee(s). 1042 Walnut Street San Luis Obispo, CA 93401 21 [ ] By Facsimile machine, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) 22 23 [ X] By Electronic Mail, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) cc;imerc1n@,,w1aw.edu,' cdietrick@slocity.org 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 27 that the above is true and correct. 2$ Executed on September 10, 2015 at Ontario, California. PROOF OF SERVICE -1 Julia arl cal Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1049 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 CASTILLO HARPER, APC 3333 Concours St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Kasey@CastilloHarper.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 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: October 2, 2015 TO THE HEARING OFFICER AND OPPOSING COUNSEL: PLEASE TAKE NOTICE that on October 2, 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; PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1050 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 or authority or rank; propensity and motivation to retaliate and/or fabricate against those who are adverse and/or are competitive; any instances of officer misconduct. 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: September 10, 2015 Respectfully submitted, CAST LLO HARPER, APC NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL 2 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1051 I 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 1 2s 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. According to a basis for the termination of Officer Waddell, a basis for the termination of the Appellant was the Bentley incident--- that which was investigated by Lt. Bill ProIl, a Lt. of the San Luis Obispo Police Department. The Department and the City relied substantially on the internal affairs investigation that was conducted by Lt. Proll and relied on hi! 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 or authority or rank; propensity and motivation to retaliate and/or fabricate against those who are adverse and/or are competitive; any instances of officer misconduct. 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 I Obispo Police Department. I /// 3 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1052 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I8 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. Stelvart (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 Iimit 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. Mentro (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.App.4th at 433 (citing People v. Hustead (1999) 74 Cal.App.4th 410, 417). As noted in Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, review denied, the language of Cal. Evill 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. Mentro (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 ProIl is absolutely relevant because it relates to a number of matters at issue in this case. As 4 PITCNESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1053 2 3 4 5 6 7 8 9 10 lI 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lt. Proll was the investigator for the Bentley incident, he was responsible for making credibility determinations which the Department relied heavily on in determining to terminate Appellant. During the course of the hearing, it is clear that the ultimate decision -makers from the Department in the present case (City Manager Katie Lightig, then -Chief Gesell, the Skelly officer, and Captain Staley, who made the executive recommendation for Appellant's termination) relied on Lt. Proll's written sununaries of the witness interviews, rather than the actual audio recordings of the witnesses. Therefore, Lt. Proll's credibility, veracity, reliability, potential for motive, any bias and/or impeachment material located within his file would be specifically and extremely relevant to this case. Because of the foregoing, any complaint and/or investigation of Lt. Prof) involving misleading or false statements in any official matter, malicious treatment of witnesses, improper use of law enforcement power, authority, witness tampering, dissuading, concealment, propensity and/or motivation to retaliate and/or fabricate, and/or collusion is absolutely relevant in the current case. 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 5 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1054 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 narrow issues of the case. Greyhound Corporation v. Superior Court, (1961) 56 C.2d 355, 378, I1M 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 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 misrepresentations, omissions, misstatements of facts, or false statements are clearly relevant and is evidence of the abuse of discretion by the Sa 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 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 Ca1.App.4th 836 in requesting all files responsive to the Pitchess request in the possession or PITCHESS MOMN Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1055 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 I6 17 18 19 20 21 22 23 24 25 26 27 28 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. DISCOVER:'Y 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: T1he 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 Cal.4th 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. I /// I /// 7 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1056 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 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 (Drink -water) (2014) 60 Cal.4th 624, the Supreme Court recognized that a 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 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: September 10, 2015 Respectfully submitted, CASTELLO HARPER, APC NICOLE A. r ALEWAY Attorneys for Appellant KEVIN WADDELL 8 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1057 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. NALE'WAY IN SUPPORT OF APPELLANT'S MOTION FOR DISCOVERY OF PEACE OFFICER'S PERSONNEL RECORDS PITCHESSfBRADY- 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. 14. Ilk in 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, and 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. 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 that has been presented 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 his summaries of witness interviews. 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. Therefore, it may be implied that Captain Staley relied solely on Lt. 9 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1058 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 Proll's report and witness summaries in making his recommendation to terminate Appellant. 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 remember whether she had listened to the audio recordings or not, and thus would have only relied on the summaries. Indeed, upon information and belief, her testimony was that she had a good team, or something to that effect, and relied on their sound judgement. 9. 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. 10. Lt. Proll's personnel file is extremely relevant to the current case for impeachment of Lt. Proll, 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. 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. 10 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1059 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 I declare under penalty of perjury that the above is true and correct. Executed this 101h day of September, 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 1060 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. Mybusiness address is 3333 Concours St., Bldg. 4, Ste. 4100, Ontario, CA 91764. On July 28, 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 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: 7 (Served via Personal Service ONLY via e- (Served via U.S. mail and mail) leal services Hearing OMcer Christopher Cameron8anLuisObispoPoliceDepartmentArbitratorandCivilServiceHearingOfficer 9 Attn: Captain Storton c/o Southwestern Law School 1042 Walnut Street 3050 Wilshire Boulevard 10 San Luis Obispo, CA 93401 Los Angeles, CA 90010 11 1 ccameron@swlaw.edu 12 (Served via U.S. mail and einail) City Attorney Christine Dietrick 13 990 Palm Street, Room 10 San Luis Obispo, CA 93401 14 cdietrick@slocity.org 15 [] 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 16 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 that17theenvelopewassealedand, with postage thereon fully prepaid, placed for 18 collection and mailing on this date in the United States mail at Ontario, California. 19 [X] By Personal Service, I caused such envelope to be delivered by hand to the above 20 addressee(s). 1042 Walnut Street San Luis Obispo, CA 93401 21 ( ] By Facsimile machine, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) 22 23 [ X] By Electronic Mail, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) ccameron @,,\ aw.edu• cd'etrick@slocit .or 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 27 that the above is true and correct. 28 Executed on September 10, 2015 at Ontario, California. a v PROOF OF SERVICE -1 Juli M' scat Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1061 1 2 3 4 5 6 7 8 9 10 11 12 I3 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 CASTILLO HARPER, APC 3333 Concours St, Bldg 4, Ste 4100 Ontario, CA 91764 Telephone 909-466-5600 Fax 909-466-5610 Kasey@CastilloHarper.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 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: October 2. 2015 TO THE HEARING OFFICER, THE CITY OF SAN LUIS OBISPO AND ITS CITY ATTORNEY AND COUNSEL FOR THE POLICE DEPARTMENT: PLEASE TAKE NOTICE that on October 2, 2015 at 990 Palm Street, San Luis Obispo, I California, 93401, at 9:00 am., Appellant KEVIN WADDELL will move that the Hearing I 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 I PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1062 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 I7 18 19 20 21 22 23 24 25 26 27 28 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 allegdtions 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 personnel evaluations of Smith during the time period of 2013-2014 that specifically reference counseling, and/or documenting the failure to supervise Officer Kevin Waddell. 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 or authority or rank; propensity and motivation to retaliate and/or fabricate against those who are adverse and/or are competitive; any instances of officer misconduct. 5. 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. I Dated: September 10, 2015 Respectfully submitted, CASTILLO HARPER, APC NICOLE A. NALEWAY Attorneys for Appellant KEVIN WADDELL 3 PITCHFSS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1063 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. According to the Department, a basis for the termination of Appellant is derived from his making of false statements about to Lt. Smith having given him "blanket" permission to be late at -will or flex his C.A.T overtime scheduling without prior notice or approval, and a conversation from the day prior in the Iocker room at the Department. Lieutenant Smith was Appellant's chain -of -command supervisor for the C.A.T. shifts, and was responsible for Appellant's C.A.T. shift time cards and scheduling. It is Appellant's information and belief that Lt. Smith was disciplined and/or remediated after the Appellant was investigated for his "failure to supervise" Officer Waddell relating to Appellant being late and/or leaving early during assigned C.A.T. shifts and flexing at will. Additionally, Lt. Smith is one of the Department's key witnesses against the Appellant for the C.A.T. incident. 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 while he was assigned to C.A.T shift overtime; 3. Any and all personnel 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. 3 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1064 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 These documents and files are reasonably believed to be in the custody of the San Luis I I Obispo Police Department. 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. Ste vart (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 government cannot invoke the privilege to withhold evidence relevant to an opposing party. Garden Grove Police Dept. v. Super. Ct. (2001) 89 Cal.App.4th 430, 433, review denied (citing People v. Mentro (1985) 38 Ca1.3d 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.App.4th 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, revie v 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. Mentro (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. 4 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1065 PR 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 this case, the information the Appellant requests from the personnel file of Lt. Smith is absolutely relevant because it relates to a number of factual issues in dispute and affirmative defenses in this case. Not only is Lt. Smith's credibility, percipient witness and reliability as a historian a matter of determination for this Hearing Officer [EC 7801, the statements made by him to during that investigation are relevant, as is the level of discipline, when assessed alone, and by comparison to that suffered by Officer Waddell, particularly after much of the sworn testimony of Sgt. Pfarr, Lt. Proll, Lt. Bledsoe, and Sgt. Amaroso in the instant hearing._The termination of Appellant partly is based upon allegations regarding false statements by Appellant to Lt. Smith regarding "permission" to be late on a specific date vs. prior approval/"blanket" approval from Lt. Smith re: being late occasionally without notice and approval and/or thereafter flexing. Lieutenant Smith was Appellant's supervisor for the C.A.T. shifts, and is responsible for Appellant's C.A.T. shift time cards. It is Appellant's information and belief that Lt. Smith was disciplined and/or remediated after the Appellant was investigated for this "failure to supervise" Officer Waddell relating to Appellant being late for the C.A.T. shifts and thereafter flexing. Additionally, Lt. Smith is one of the Department's key witnesses against the Appellant for the C.A.T. incident. 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 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1066 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 narrow issues of the case. Greyhound Corporation v. Superior Court, (1961) 56 C.2d 355, 378, 11390. 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 arresting officers' use of excessive force in effecting arrests against others. Santa Cruz, supra, 49 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 Ca1.Rptr. 520, 776 P.2d 222. (Emphasis added.) In this case, the requested documents are well within the scope of production of Phchess and relevant as aforementioned. Appellant relies upon Fletcher v. Superior Court (2002) 100 Cal.AppAth 836 in requesting all riles 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 2 PITCHFSS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1067 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 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. ADNHNISTRATM 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 (Drinkivater) (2014) 60 Cal.4th 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 I filed "with the appropriate court or administrative body." Thus, during administrative appeals, an administrative officer may rule on a Pitchess I 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. I Jeff Smith. 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. 19 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1068 1 2 3 4 5 6 7 8 9 10 lI 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: September 10, 2015 Respectfully submitted, CASTILLO HARPER, APC NICOLE A. NA EWAY Attorneys for Appellant KEVIN WADDELL 8 PiTCHESS MOMN Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1069 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 1 28 DECLARATION OF NICOLE A. NALEWAY IN SUPPORT OF APPELLANT'S MQTION FOR DISCO,URX OF PEACE OFFICER'S PERSONNEL RECORDS PITCHESSiBRADY- 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 Appellant's information and belief that the proffered pretext for the termination of Appellant is based upon allegations regarding false statements to Lt. 0 17. Smith regarding permission to be late on a specific date versus prior approval from Lt. Smith regarding being late occasionally with or without notice and thereafter flexing. The allegations are based on information that was given to the San Luis Police Department, to include by supervisor Lt. Jeff Smith. Lt. Smith was Appellant's chain of command supervisor, and overtime scheduler on the C.A.T. shifts. Based on testimony that was presented at the hearing, and information obtained from the internal affairs documents, upon information and belief, Lt. Smith was Appellant's supervisor in charge of Appellant's time cards for the C.A.T. shift. 8. It is Appellant's information and belief that Lieutenant Smith was disciplined and/or remediated after the Appellant was investigated, for Smith's "failure to supervise" Officer Waddell relating to being late and/or leaving early without 9 PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1070 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 permission or notice while working the C.A.T. shifts and the thereafter flexing of time, creating an atmosphere and a past practice wherein officers on the shift maintained some autonomy and responsibility for themselves, their assignment, and their overtime shift. Therefore, any discipline in Lt. Smith's personnel file on this topic, especially de minimis discipline is absolutely relevant for Appellant's disparate treatment argument. 9. Additionally, for the C.A.T. incident, Appellant's dishonesty charge is partially based on false statements made 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. Therefore, Lt. Smith's personnel file, and information potentially therein, may tend to destroy any credibility of Lt. Smith, and is extremely relevant for impeachment purposes. 10. All the materials requested herein are directly relevant to both Appellant's disparate treatment argument, as well as the credibility determinations of Lieutenant Smith, who is one of the Department's key witnesses in the case against Appellant for the C.A.T. incident. In terms of Appellant's disparate treatment argument, it is absolutely relevant whether the Department investigated Lt. Smith and whether he ultimately received discipline for his failure to supervise Appellant. 11. As for the Bentley incident, it is Appellant's information and belief that Lt. Smith was aware of the Bentley incident (and the joke played on newly -promoted Sgt. Pfarr) months prior to any investigation of Appellant began for said incident. It is Appellant's information and belief that he was told about the incident by Sgt. Pfarr. If he did have knowledge of said incident, and failed to report it to anyone, then this would be relevant Appellant's disparate treatment argument, and/or any arguments put forth by the department relating to the severity of the "crime" and integrity issues of Waddell. Whether the Department actually investigated Lt. Smith's conduct and knowledge of this incident, and whether he was ever disciplined for "failure to supervise" Appellant is absolutely relevant both to Department motivation and Appellant's disparate treatment argument. 10 PtTCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1071 1 2 3 4 5 6 7 8 9 10 I1 12 13 14' 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. 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. Smith versus prior approval from Lt. Smith regarding being late occasionally and thereafter flexing, and at what point the department had actual knowledge of the Bentley incident vs. when it chose to act on said knowledge. 13. As shown above, 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. 14. 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. 15. 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. 16. 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 10's day of September, 2015, at Ontario, California. Nicole A. Naleway Attorney for Appellant, Kevin Waddell PITCHESS MOTION Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1072 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. Mybusinessaddressis3333ConcoursSt., 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 LT. JEFF SNHTH; 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 ea( of recipients listed below: 7 (Served via Personal Service ONLY via e- (Served via U.S. marl and email) le al services) Hearing Officer Christopher Cameron8SanLuisObispoPoliceDepartmentArbitratorandCivilServiceHearingOfficer 9 Attn: Captain Storton c/o Southwestern Law School 1042 Walnut Street 3050 Wilshire Boulevard 10 San Luis Obispo, CA 93401 Los Angeles, CA 90010 11 pcameron@swlaw.edu 12 (Served' via U.S. mail and entail) City Attorney Christine Dietrick 13 990 Palm Street, Rohm 10 San Luis Obispo, CA 93401 14 cdietrick@slocity.org 15 [] 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 16 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 that17theenvelopewassealedand, with postage thereon fully prepaid, placed for 18 collection and mailing on this date in the United States mail at Ontario, California. 19 [X] By Personal Service, I caused such envelope to be delivered by hand to the above 20 addressee(s). 1042 Walnut Street San Luis Obispo, CA 93401 21 [ ] By Facsimile machine, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) 22 23 [ X] By Electronic Mail, I caused the above -referenced document(s) to be transmitted to the above-named persons(s) ec;ameron @s%v1g%v.edu; cdietrick@slocity.org 24 C ] 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 27 that the above is true and correct. 28 Executed on September 10, 2015 at Ontario, California. 1-p PROOF OF SERVICE -1 Julia seal Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1073 I JONES & MAYER Gregory P. Palmer, Esq., SBN No. 133647 2 3777 North Harbor Boulevard Fullerton, California 92835 3 Telephone: (714) 446-1400 Facsimile: (714) 446-1448 4 gpp@jones-mayer.com 5 Attorneys for Custodian of the Records of the San Luis Obispo Police Department 6 7 BEFORE HEARING OFFICER CHRISTOPHER CAMERON 8 9 IN RE THE MATTER OF THE No. ARB -14-0209 APPEAL OF THE TERMINATION OF 10 KEVIN WADDELL FROM THE SAN OPPOSITION OF CUSTODIAN OF THE LUIS OBISPO POLICE DEPARTMENT RECORDS OF THE SAN LUIS OBISPO I1 POLICE DEPARTMENT TO APPELLANT'S MOTION FOR 12 DISCOVERY OF PEACE OFFICER PERSONNEL FILE INFORMATION; 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 14 CUSTODIAN OF THE RECORDS OF THE SAN LUIS OBISPO POLICE DATE: October 2, 2015 15 DEPARTMENT, TIME: 9:00 a.m. PLACE: 990 Palm Street, San Luis 16 Real Party in Interest Obispo, CA 93401 17 18 19 TO: THE HEARING OFFICER, THE ABOVE MENTIONED APPELLANT AND HIS 20 ATTORNEY: 21 The following Memorandum of Points and Authorities is hereby submitted on behalf of 22 the Custodian of the Records of the San Luis Obispo Police Department in Opposition to the 23 motion to discover confidential police personnel records. 24 25 26 27 28 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 1074 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 now filed with the 5 hearing officer its third set of three separate Pitchess motions seeking access to the confidential 6 personnel file information of three different San Luis Obispo Police Department Peace Officers. 7 Those officers are Sergeant Chad Pfarr, Lieutenant Jeff Smith and Lieutenant Bill Proll. 8 And as stated before in our opposition to the previously filed Pitchess motions, the 9 hearing officer herein stands in the same shoes as a Superior Court Judge in terms of ruling in 10 these Pitchess motions. On the one hand, some may think that since this is an administrative 11 case, the typically relaxed rules of administrative procedure apply to these motions. They do not 12 This motion seeks to pierce a statutorily recognized right of confidentiality in the contents of a 13 peace officer's personnel file. The records sought are the subject of a right of privilege. The 14 rules of privilege in civil cases apply with the same rigidity in administrative cases. Just because 15 one of it ranks has a disciplinary action imposed upon him does not mean that former officer can 16 use the relaxed administrative rules attached to his hearing to tromp on a privilege held be a 17 former fellow officer. After all, the seminal case in this field, Riverside County Sheriffs 18 Department v Stiglitz (Drinkwater), infra, did not carve out any special service rules for Pitchess 19 motions in the administrative context. Therefore, these motions must be analyzed as if the 20 hearing officer is sitting as a judge in the Superior Court and the motion or motions should be 21 granted only if the declarations in support of the discovery requested, as to each named officer, 22 meets the statutory standard and case law standard it would in court. 23 We hereby contend that each of the motions lack the requisite good cause to grant the 24 discovery requested and therefore we urge the hearing officer to deny appellant's motions. 25 /// 26 27 28 1- OPPO. OF THF CUST. OF TIM RECORDS OF SAN LUIS OBISPO Y.D. TO DEFDTS.MO. FOR PRETRIAL, DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1075 I II. 2 THE PITCHESS MOTIONS LACK SUFFICIENT GOOD CAUSE INSOFAR AS IT REQUIRES A WHOLESALE IN -CAMERA 3 REVIEW OF THREE POLICE OFFICERS PERSONNEL FILE. 4 Considerable confusion over what is required for a sufficient showing to justify an in- s camera review of confidential police personnel files was put to rest with the Supreme Court's 6 decision in City of Santa Cruz v. Municipal Court (Kennedy) (1989) 49 Cal. 3d 74, 260 Cal. 7 Rptr. 520. In that case, the declaration of counsel for the person seeking the confidential 8 records, in addition to contending excessive force was used in the arrest, showed factually 9 how that excessive force occurred. The declaration said " ... officers... grabbed [defendant] 10 by the hair and threw him down to the ground. One officer then stepped on [defendant's] 11 head, while the other twisted his arm behind his back." (City of Santa Cruz, supra, at p. 80). 12 The court first viewed that declaration and because it set forth a specific factual scenario 13 to support the assertion that excessive force occurred, the materiality to the claim of self defense 14 was shown. But then the court went further and viewed in conjunction with the declaration, the 15 police report of the incident. That report showed considerable force was used in the 16 effectuation of the arrest. Viewed together as they were, the materiality of the information 17 requested was plainly demonstrated. (Santa Cruz, supra, at p. 85- 87; also see People v. Memro 18 38 Cal. 3d 658, 214 Cal. Rptr. 832). 19 The movant is required, as stated in City of Santa Cruz and Memro, supra, to inform 20 the court, by using facts and not conclusions, what conduct of the officers constitutes 21 excessive force. It is this that is necessary for a showing of good cause for the discovery. 22 And as demonstrated by the Supreme Court's requirement that the court also review the 23 arrest report prepared by the officer, it is manifest that courts should not just take the 24 defense declaration as gospel and grant the discovery request. 25 The requirement for the use of facts to justify a Pitchess motion request for 26 discovery has been upheld in many cases. In People v. Navarro (1978) 84 Cal. App. 3d 27 355,146 Cal. Rptr. 672, the court held that "evidence may be theoretically admissible under 28 a particular section of the Evidence Code [1101] and yet not discoverable because not 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 1076 I 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 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 factthat 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 (1978) 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." In Arcelona v. Municipal Court (1980) 113 Cal. App. 3d 523, 169 Cal. Rptr. 877, a motion to discover previous complaints of excessive force should have been granted Now, affidavits made on information and belief would be sufficient. (Cid 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 1077 1 because "counsel's supporting declaration outlining the events of May 21-22 provided 2 adequate factual details demonstrating the manner in which the requested records 3 pertained to his clients possible defenses. Thus, the declaration provided an adequate 4 factual foundation establishing a plausible justification for discovery." (Supra at page 5 530). (Emphasis added). 6 In City of Santa Cruz v. Superior Court (Rush) (1987) 190 Cal. App. 3d 1669, 236 Cal. 7 Rptr. 155, the defendant, charged with assaulting an officer, moved for discovery of, inter alia, 8 past dishonesty complaints. Defense counsel used facts to support his contention of excessive 9 force in his declaration, but made no averments to support his request for records of dishonesty. 10 The trial court denied a review of records of dishonesty because only excessive force was 11 involved in the case. (Santa Cruz (Rush), supra, at p. 1672). 12 The court went on to discuss how counsel's declaration was devoid of facts because 13 it was made on information and belief. Of course, the 1989 Santa. Cruz case (Kennedy), 14 supra, rejected that requirement but retained the requirement for a factual showing to 15 support the discovery. Therefore, the discussion of the lack of factual support for the 16 discovery in Santa Cruz (Rush), supra, is still applicable to the present case. 17 The Rush court indicated that Navarro was questioned in People v. Merino, but 18 only as to its requirement that a personal affidavit is required for plausible justification. The 19 court also cited Lemelle v. Superior Court (1978) 77 Cal. App. 3d 148, 162, 143 Cal. Rptr. 20 450 where the court denied- discovery because defendant's declaration stated no facts 21 pertaining to the incident. (Lemelle, supra). 22 While the case of Jalilie v. Superior Court (1987) 195 Cal. App. 3d 487, 240 Cal. 23 Rptr. 662, only decided the issue of a declaration made on information and belief and left 24 for the court to determine on remand the merits of his motion, the court did note that in 25 support of a request for records of dishonesty, the motion was "supported by a lengthy 26 declaration ... reciting the arresting officers ... history of falsifying reports and evidence 27 inpost hoc attempts to justify unwarranted arrests ... [,j the affidavit referred in detail to 28 events in specific cases and alleged the ... officers had a habit ... and practice of searching 0 OPPO. OF THE CUST. OF ITIE RECORDS OF SAN LUIS OBISPO P.D. TO DEPDTS.MO. FOR PRETRIAI, DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1078 I people they suspect and later justifying such actions without regard to the truth of the 2 matter." (Jalilie, supra, at p. 489, emphasis added.) 3 What is meant by all this is while a declaration made on information and belief only will 4 not be held insufficient upon that ground, it still must contain sufficient facts about the incident 5 to show a plausible justification for the discovery. Put another way, where a declaration made o. 6 information and belief is completely devoid of facts supporting the claim of excessive force, it 7 will fail for lack of substance, not form. 8 All of the previous reported decisions that have reached the issue have held that a factual 9 showing of materiality and relevance must be made before discovery of records of police 10 misconduct should be granted. 11 The holding of the 1989 City of Santa Cruz (Kennedy) case, supra, is the culmination of 12 this discussion requiring a sufficient factual justification for the discovery. As stated earlier, the 13 declaration in that case was found sufficient to support discovery of excessive force complaints 14 because it described factually how the contention of excessive force was supported. 15 The California Supreme Court enunciated the standard for demonstrating good cause in a 16 Pitchess motion again in Warrick v Superior Court (City of Los Angeles) (2005) 35 Cal. 4th 17 1011. The court said: 18 Regardless of how the materiality inquiry is described, however, a showing of good cause requires a defendant seeking Pitchess discovery 19 to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being 20 sought would support such a defense or how it would impeach the officer's version of events. 21 To show good cause as required by section 1043, defense counsel's 22 declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how 23 the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence (People v. Hustead, supra, 24 74 Cal.App. 4t" at p. 417; Larry E. v. Superior , (1987) 194 Cal.App. 3d 25, 32- 33, 239 Cal. Rptr. 264) that would support those proposed 25 defenses. These requirements ensure that only information "potentially relevant" to the defense need be brought by the custodian of the 26 officer's records to the court for its examination in chambers. ( People 27 v. Mooe (2001) 26 C. 4" 1216.). What standard must a moving party meet to show a "plausible" factual 28 foundation for the Pitchess discovery requested? We conclude that a 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 1079 2 rd 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 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 the Supreme Court in Warrick, supra to this matter and several concepts become clear in Pitchess" law. The Warrick court stated the declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence that would support those proposed defenses. It was sufficient in City of Santa Cruz, supra to factually claim that the officers handcuffed Howard Kennedy2 threw him down to the ground by his hair, stepped on his bead and twisted his arm behind his back.. The Warrick court said an assertion of specific police misconduct must be both internally consistent and support the defense proposed to the charges. The defense is required to make a showing whicl puts the court on notice that the specified officer misconduct will likely be an issue at trial. It was sufficient in Warrick to factually claim that he was not present at the location to sell z The Real Party in the Santa Cruz case OPPO. OF THE CUST. OF TAE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1080 1 drugs, but to buy drugs and that it was somebody else who threw down the rocks of cocaine, 2 not him. 3 The case of City of San Jose v. Superior Court (Eti) (1998) 67 Cal. App. 4ih 1135 70 4 Cal Rptr. 2d 624, is a case that is almost identical to the situation involved in this matter. In 5 City of San Jose, supra, the defendant's declaration in support of a Pitchess motion which, like 6 the motion at issue here, targeted dishonesty records and stated: 7 • The consent to enter and search was not in fact obtained by the officers; 8 • There were material misrepresentations in the police reports and in court 9 testimony, which were made to conceal that fact, and; 10 • Evidence disclosed during the search was mishandled. 11 The court in City of San Jose, supra, analyzed each one of these contentions and 12 explained how they were insufficient to support the motion. As to the consent to enter and 13 search, the court said more detail had to be provided, such as was the consent coerced and if 14 so, what were the means of coercion or was it a simple failure to obtain the consent. As to the 15 contention that there were material misrepresentations in the police report and in court 16 testimony; the court said that it lacked sufficient detail as to which statements were incorrect 17 and how they were untruthful. Finally, as to the third claim, the evidence disclosed during 18 the search was mishandled, the court again said it lacked sufficient detail as to which one of 19 the multiple items seized during the search were mishandled and how the booking of the 20 evidence was improper. The court held that based on the lack of detail the defendant failed to 21 establish a specific factual scenario supporting the motion and the motion should have been 22 denied. 23 The Second District Court of Appeal issued a decision on a Pitchess motion which is 24 also illustrative on the issue. Explaining what is required in a Pitchess declaration under 25 Warrick, supra, the court in People v. Thompson (2006) 141 Cal. App. 4`h 1312, said 26 Thompson failed to show "good cause for the requested discovery because he did not 27 present a specific factual scenario that is plausible when read in light of the pertinent 28 documents and undisputed circumstances." (Thompson at p. 1316). 7- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEIDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1081 1 In People v. Thompson, supra, the declaration simply claimed that the defendant was 2 not at the location of the arrest to buy drugs, no buy money was found on the defendant, and he 3 was only arrested because he was in an area where the officers were making arrests and when 4 they found out he had a criminal history they made the arrest. This showing was insufficient to 5 support the Pitchess motion. It failed to provide a factual account of the event from the defense 6 point of view and in a manner in which supported his proposed defenses. The motion should 7 have been denied. The motion at issue herein is very similar in some respects to the deficient 8 motion in People v. Thompson, surra. 9 To the same effect is People v Sanderson (2010) 181 Cal. App. 4th 1334, a decision 10 of the Fourth District Court of Appeal two years ago. In that case the defendant was 11 charged with making criminal threats over the phone while police were listening. The 12 police officers heard his threats. The defense Pitchess motion contained a declaration in 13 which it just denied that he made the threatening statement. This court found that 14 insufficient because the defense did not deny making the phone call or engaging in a 15 conversation with the victim and it failed to present an alternate version of the facts from 16 the defense point of view. Indeed, the Sanderson court found the Thompson case 17 particularly instructive. (Sanderson at 1341-42). 18 The context of this Pitchess motion is all important to the gravamen of this case. 19 This is not the typical criminal defense Pitchess motion which seeks access to records 20 pertaining to excessive force. This Pitchess motion arises from an administrative 21 disciplinary appeal in which the appellant claims the named officers lied in some way 22 relevant to his defense. It is that claim which sets the contours of any Pitchess type 23 discovery plaintiff is entitled to have reviewed. 24 In People v Memro (1985) 38 Cal 3d 658, the defense filed a Pitchess motion for 25 discovery. In the motion, Memro named 16 different officers, including the four Southgate 26 police officers who interrogated him following his arrest (Officers Sims, Gluhak, Carter 27 and Greene) as well as 12 other officers who he claimed trained the four officers in 28 engaging in coercive interrogation tactics. Memro requested all records of excessive force 8- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OJ3ISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1082 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 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 - camera review should have only included Officers Sims, Gluhak, Carter and Greene. s 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) OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D.'f0 DEFDTS,MO. FOR PRETRLAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1083 I In applying the principles explained in the Merino, supra case to this opposition, the 2 first thing which must be discussed is whether the appellant herein, has stated sufficient 3 good cause, within his Pitchess motion entitling him to an in -camera review of some of the 4 sought after records. The Custodian of the Records contends that appellant has failed to 5 establish good cause for the discovery sought. 6 Curiously, less than one year ago, the California Supreme Court weighed in on this 7 very issue and issued an opinion which should be considered very instructive to this case. 8 In Riverside County Sheriffs Department v. Stiglitz (Drinkwater) 60 Cal. 4`" 624 9 ("Riverside"), the Supreme Court was asked to consider a pitchess motion filed in an 10 administrative discipline case. And unlike here, the pitchess motion filed in that case was 11 one which targeted many fellow Riverside County Sheriff deputies based on a claim of 12 disparate treatment. 13 Kristy Drinkwater ("Drinkwater") was employed as a Deputy Sheriff with the 14 Riverside County Sheriffs Department ("Department'). Drinkwater was terminated from 15 the Department for falsifying her payroll forms. She appealed her termination. Pursuant to 16 the MOU, Arbitrator Jan Stiglitz ("Stiglitz") was selected by the parties to be the hearing 17 officer at that appeal. 18 Drinkwater asserted that she intended to use the disparate treatment defense, 19 claiming that others had committed similar misconduct but were not fired. She filed a 20 "pitchess" motion before Stiglitz seeking personnel investigations of any department 21 employee who had been disciplined for similar acts of misconduct. She sought incident 22 summaries, rank of the officer and discipline imposed. Stiglitz denied the motion, without 23 prejudice, ruling that the department did not have to search its files for similar misconduct, 24 instead Drinkwater had to identify particular officers she believed had engaged in 25 misconduct relevant to her claim. 26 Drinkwater renewed her motion and identified 11 officers who allegedly committed 27 misconduct similar to hers. The matter then went through the Appellate Court system on th 28 issue of whether a pitchess motion should be allowed in an administrative disciplinary OPPO. OF THE CUST. OF TM RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1084 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 appeal hearing and whether a hearing officer or a court should handle it. Ultimately the Supreme Court held a pitchess motion is allowed in such a hearing and a hearing officer Stiglitz is well-qualified to rule on them. Throughout the case, the Supreme Court consistently repeated the fact that the pitchess motion in this context must include affidavits that set forth the materiality of the sought after records to the subject matter involved in the pending litigation. Thus, where the affidavit fails to set forth the materiality to the disparate treatment claims of the party seeking disclosure, the motion should be denied. The court also held "the pitchess statutes reflected the legislatures attempt to balance a litigant's discovery interest with an officer's confidentiality interest" ( Riverside at 639). That is a very important concept to keep in mind when evaluating this motion. The Riverside court made particular note of the fact that unlike a typical pitchess motion in the criminal court context which arises from an arrest event where the arresting officer at least has some involvement in the litigation, typically as a witness, and whose credibility is subject to challenge, this is not that case. "The question here is not whether the officers might be credible, but whether the department decision makers granted those officers disparate treatment" ( Riverside at 641). As the Supreme Court said in Riverside, supra, "we have also clarified that an officer's entire personnel file need not be presented for review, only materials of the type requested" (Riverside at 640, citing People v. Mooe, 26 Cal. 4`s 1228-1230) and consider in the present case, such materials would be limited to incidents involving conduct similar to Drinkwater's. This limitation balances privacy interests while permitting focused discovery" (Riverside at 640). Applying all of the above to the situation presented by this motion and it should be abundantly clear that the requests made in these motions are so substantially overbroad as to violate the Supreme Court ruling in Memro, supra. Additionally, this is not the same type of Pitchess motion authorized in the administrative context in the Riverside Sheriff, supra, case. In addition to a disparate treatment claim, this is a Pitchess motion which targets 11_ OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFD'rS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1085 1 dishonesty records as to all of the named officers. Accordingly, the ruling on this motion 2 should be governed by the holdings of City of San Jose, supra, People v Thompson and 3 People v Sanderson, supra. In other words the declaration in support of each request for 4 discovery must contain a sufficient factual account of the alleged dishonesty perpetrated by 5 each named officer in the disciplinary case at issue in this hearing and it has to set forth a 6 sufficient factual account supporting the dishonesty allegation in a manner which supports a 7 plausible justification for the discovery sought. It is this the appellant herein has failed to 8 do and even a cursory review of each declaration attached to each motion indicates this 9 fairly clearly. 10 1. Sergeant Chad Pfarr I I In this motion appellant seeks information concerning how the 12 department handled any misconduct it found or did not find on Sergeant Pfaff 13 which relates specifically to the event which lead to the charges against the 14 appellant. In this way and as to this motion, the Pitchess motion targeting 15 Sgt. Pfarr most closely resembles the motion described in the Riverside 16 County Sheriff s Department, supra, case, inasmuch as it seeks to determine 17 how the department imposed discipline upon another employee involved in 18 the same event as appellant. 19 As the issue presented in this Pitchess motion is one based 20 upon a disparate treatment claim, some discussion of the contours of that 21 claim are in order here. In order to prevail on a claim of disparate treatment 22 one must show that similarly situated employees were treated differently and 23 that the reason for the existence of this disparity in treatment is some 24 impermissible reason. (Vasquez v. County of Los Angeles (9th Circ. 2003) 25 349 F.3d 635) This can be a difficult claim to support because the reasons 26 that an employer imposed specific sanctions on certain employees will almost 27 never be sufficient to permit the conclusion that the officer who seeks the 28 records was truly similarly situated, because the agency has broad discretion 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 1086 1 to take almost innumerable factors into account in determining an appropriate 2 sanction for a particular officer. (See generally Talmo v. Civil Services 3 Commission (1991) 231 Cal. App. 3d 210.) 4 Disparate treatment of similarly situated employees may be an abuse 5 of discretion on the part of the public agency and consequently may provide a 6 basis for rescinding or modifying discipline (Pegues v. Civil Service 7 Commission (1998) 67 Cal. App. 4th at 104- 106; Talmo, su ra at 229-231; 8 See Harris v. Alcohol Beverage Control Appeals Board (1965) 62 Cal. 2d at 9 594-595.) While the claim that the punishment imposed is excessive in 10 comparison with punishment imposed on other personnel in similar 11 circumstances is a valid claim to make either in the employment discipline 12 context or in a retaliation claim, there is "no requirement that charges similar 13 in nature must result in identical penalties." (See Talmo, supra at 230; 14 Pegues, su ra at 104-106.) 15 The entirety of this body of law consistently refers to "similarly 16 situated employees." In Vasquez v. County of Los Angeles, supra, 17 Individuals are similarly situated when they have similar jobs and display 18 similar conduct." (Vasquez at 641). Disparate treatment can come up when 19 other employees with qualifications similar to (another employee) were 20 treated more favorably." (Vasquez, supra at In 5 citing McDonnell Douglas 21 v. Green (1973) 411 U.S. 792, 802). Employees in supervisory positions are 22 generally deemed not to be similarly situated to lower level employees 23 Vasquez, supra at 641-642). A showing is required that the "problematic 24 conduct be of comparable seriousness" to be considered similarly situated 25 id). To be similarly situated, an employee must have the same supervisor, be 26 subject to the same standards and have engaged in the same conduct. 27 Vasquez, sunra at fn 17 citing Hollins v. Atlantic Co., Inc. (6th Circ., 1999) 28 188 F.3d 652, 659). 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 1087 I After carefully considering the above, it should appear inescapable that 2 the appellant is not entitled to discovery what, if any, disciplinary action it 3 took on Sgt. Pfarr for any of his conduct in either the CAT shift event or the 4 Bentley event. 5 As was made clear in the Riverside Sheriff case, the Pitchess motion in 6 that case was based upon a claim of disparate treatment. Thus, as we see the 7 state of the law, a Pitchess motion in an administrative case is either (1) one 8 based on a claim of disparate treatment or (2) one based on a garden variety 9 claim of general dishonesty. We believe the Pitchess motions filed herein as 10 it relates to Sgt. Pfarr and Lt. Smith have attributes of both claims. 11 The reason we believe the disparate treatment claim is applicable to 12 this motion is because appellant seeks access to the investigation and any 13 disciplinary result from the investigation of the same subject matter for which 14 appellant was terminated. Appellant was terminated for lying to his 15 supervisor and his misconduct in the Bentley event. There is no evidence in 16 the record to suggest that Sgt. Pfarr did anything wrong in the CAT shift 17 event. There has been some evidence that Sgt. Pfarr may have done something 18 wrong as it relates to failing to properly supervise appellant as it relates to the 19 Bentley event. And appellant seeks the investigation of such misconduct by 20 Sgt. Pfarr and the disciplinary result if any. To the extent Lt. Smith 21 supervised Sgt. Pfarr during the relevant time period, this claim scoops him 22 up as well. 23 This is where the claim made by appellant in this Pitchess motions of 24 Sgt. Pfarr and Lt. Smith dovetail with a disparate treatment claim. Indeed by 25 the very words contained in the motions, appellant seeks to compare the level 26 of discipline received by each man, if any, to the level received by appellant 27 for the same subject matter. That is the essence of a disparate treatment 28 claim. We agree with the hearing officer that disparate treatment has no basis OPPO. OF IIIE CUST. OF THE RECORDS OF SAN LUIS OBISPO Y.D. TO DEFDTS.MO. FORPRETRLAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1088 I in fact in this case for the following reasons. 2 First, any misconduct at all committed by Sgt. Pfarr was of a 3 completely different character than appellant's. Appellant actually engaged 4 in the acts alleged to have violated the rules, Sgt. Pfarr was not a participant 5 in the same, or even similar, misconduct as compared to appellant. At most, 6 Sgt. Pfarr could arguably be criticized for not taking appropriate action as a 7 sergeant of police at the Bentley accident scene. Such misconduct would be 8 in the nature of a failure to supervise and thus, as a sergeant, he is not a 9 similarly situated employee to that of the appellant who actually engaged in 10 the misconduct. Therefore, the motion should be denied on that ground alone, 11 Having dispelled the notion that the disparate treatment claim basis for 12 this Pitchess motion is in play, the only other possibility is that this is a 13 general dishonesty type Pitchess motion. Appellant corrected the error from 14 the previous set of Pitchess motion by actually including a specific request foo 15 records of past dishonesty (See request number 4), so it must be addressed in 16 this opposition. In order for the declaration to be supportive of the request fol 17 past dishonesty records, there has to be some factual showing that Sgt. Pfarr 18 has been dishonest in some way materially related to this case. That is 19 lacking in this motion. 20 The only paragraphs which in any way relate to the dishonesty 21 allegation against Sgt. Pfarr are contained in paragraphs 7 and 8 of the 22 declaration. Even though those paragraphs allege Sgt. Pfarr was dishonest for 23 purposes of setting up the request, the contents of those two paragraphs must 24 still contain a sufficient factual account of the case from the appellant's point 25 of view in order to justify piercing the confidential personnel file. Here, there 26 is not enough. 27 Boiled down to its essence, the most one gets out of reviewing the 28 contents of paragraphs 7 and 8 is that Sgt. Pfarr is a key witness in this case; OPPO. OF 114E CUST. OF TIM RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1089 I this case began because of the reporting of the events by Sgt. Pfarr; the 2 dishonesty allegation against the appellant is based on a conversation held 3 only between Sgt. Pfarr and the appellant; which was not recorded and 4 therefore he needs to be impeached because it is Sgt. Pfarr's word against the 5 appellants. That is not enough. Nothing contained in either that summary of 6 the paragraphs or the paragraphs themselves give a reader any clue as to what 7 Sgt. Pfarr is alleged to have lied about. It is that which is necessary before 8 this motion should be granted. 9 That a witness is important is not enough. All witnesses have some 10 importance or one would think there would be little reason to call them. That 11 a witness has to be impeached is not the lynchpin. If that were the case, 12 Pitchess motions would be routinely granted every time. That a witness was 13 also the reporting supervisor is unimportant to Pitchess discovery. That a 14 witness was the only other party to a conversation which forms the basis of 15 one of the charges against the appellant is not the key fact on which this 16 motion turns. There is no explanation of what it is the appellant believes Sgt. 17 Pfarr lied about. Indeed, it has never been explained even outside this motion 18 what Sgt. Pfarr is supposed to have lied about. In appellant's interview 19 Waddell never alleged Sgt. Pfarr had been dishonest in recounting their 20 conversation on October 19, 2013 about being late and having permission to 21 be so from Lt. Smith. In fact, it was appellant who, at least at that time, took 22 responsibility for the problem by saying it was be who did not articulate what 23 happened well enough rather than anyone, let alone Sgt. Pfarr, making up 24 what occurred. 25 Accordingly, the declaration in support of the motion fails to articulate 26 any allegedly dishonest statement by either Sgt. Pfarr or Lt. Smith that relates 27 to their involvement in this case. As stated in the case law expressed above, 28 Pitchess motion which targets dishonesty of the named officers involved mus 1V- OPPO. OF TIM CUST. OF TIM RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1090 1 contain a factual account of the case from the viewpoint of the moving party 2 which supports the claim that the named officers in the motion have been 3 dishonest in some regard in the case. This motion fails to do that. And one 4 does not get to have reviewed the performance evaluations of officers on a 5 Pitchess motion. (See Arcelona v. Municipal Court (1980) 113 Cal. App. 3d 6 523, 169 Cal. Rptr. 877and City of Azusa v. Superior Court 191 Cal. App. 3d 7 693) 8 The declaration is insufficient to support a request for general 9 dishonesty. A general dishonesty request in a Pitchess motion is governed by 10 the City of San Jose, supra, People v Thompson, supra and People v 11 Sanderson, supra, cases. By that measure the declaration attached to the Pfar: 12 motion pales by comparison to the declarations in those cases. There is 13 absolutely nothing in the declaration in support of the Pfarr Pitchess motion 14 which supports in any way that he lied with regard to any fact in this case. 15 The motion should be denied. 16 2. Lieutenant Jeff Smith 17 The comments made above with regard to Sgt. Pfarr apply as well to 18 the motion naming Lt. Smith. We would add, however, that the connection 19 between appellant and any discipline imposed upon Lt. Smith for failure to 20 supervise is even more tenuous than it is to Sgt. Pfarr because of Lieutenant 21 Smith's higher rank and the fact that he was not present at any of the events i 22 this case. 23 As it relates to the claim of dishonesty against Lt. Smith we find the 24 declaration very hard to understand in relation to the record of this case. The 25 declaration claims that appellant was terminated from his employment based 26 partially on a false statement made to Lt. Smith. (italics added). This 27 constitutes a major misunderstanding of the entire case. Appellant's 28 termination was based not on a false statement made to Lt. Smith, but on a 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 1091 I false statement made to Sgt. Karr about a conversation he allegedly had with 2 Lt. Smith. The false statement made by appellant had nothing to do with a 3 statement made to Lt. Smith. Indeed, both the appellant in his interview with 4 Lt. Bledsoe and Lt. Smith in his interview concurred there was absolutely no 5 conversation between these two men on October 18, 2013 about appellant 6 coming in late for his CAT shift on October 19. 2013. So, where is the 7 conversation with Lt. Smith in which he was supposed to have been 8 dishonest? Nothing contained in the declaration alleges and supports 9 factually that Lt. Smith said anything dishonest in this case and appellant has 10 never alleged that he did. 11 Additionally, by the wildest stretch of the imagination, if we could 12 assume, arguendo, that it was the case that Lt. Smith's supervision of the 13 CAT shift was so looney-goosey that a reasonable person would believe that 14 one could flex one's start or end time of a CAT shift on their own without 15 specific approval, (which is not the case and presented herein only to make a 16 more broad point) one would expect someone in appellant's position having 17 reasonably flexed his start time in conformance with the loosey-goosey 18 supervision style, would have told Sgt. Pfarr in his text and in his follow up 19 conversation with Sgt. Pfarr "Hey, Sarge, I'm sorry, I thought you knew, Lt. 20 Smith is quite okay with us CAT shift guys flexing our start and end time of 21 the shift on our own without specific approval" If appellant truly believed 22 that flexing on one's own was perfectly acceptable, he would have said so to 23 Sgt. Pfarr. That he did not say something like that proves he knew he was 24 caught coming in late without an excuse and rather than just taking whatever 25 lumps would come his way for being tardy, made up the fact that Lt. Smith 26 gave him specific approval when that was not the case. Appellant's 27 predicament is his responsibility. Appellant's attempt to shift blame for his 28 predicament to Sgt. Pfarr and/or Lt. Smith is a fallacy. The hearing officer 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 1092 1 himself asked that very question of Lt. Smith whether appellant's statement in 2 his interview that he interpreted flexing was alright with Lt. Smith and he 3 flatly denied that was true. Nothing in the declaration or in the record of this 4 case thus far supports any sort of claim that answer was false. 5 The motion should be denied 6 4. Lieutenant Bill Proll 7 The Pitehess motion targeting Lt Proll appears to be entirely based on 8 the claim that city officials who reviewed the investigative report prepared by 9 Lt. Proll apparently did not actually listen to the recorded interviews and 10 simply relied on the accuracy of the summaries provided by Lt. Proll in his 11 investigation report. To that all we have to say, and we are not trying to be 12 disrespectful here, but, so what. There is absolutely no evidence anywhere in 13 the record or elsewhere that any interview summary provided by Lt. Proll was 14 materially inaccurate. In fact, one can conduct their own review of all the 15 recorded interviews conducted by Lt. Proll on the Bentley event and compare 16 their contents to the summaries in the investigation to determine the accuracy 17 of the summaries. None of this is a secret. All of the available recordings 18 have been provided to appellant. Some, actually many of them, are in 19 evidence or have been played in the hearing. 20 One would think that with the amount of hearing days in this case and 21 the amount of preparation required for all those hearing dates, if Lt Proll's 22 interview summaries were materially inaccurate in any way, we would have 23 heard about it by now. In fact, one can do that on their own with the record a; 24 it currently stands because many of the interviews conducted by Lt. Proll have 25 now been transcribed and made part of the record. There are no glaring 26 inaccuracies in the summaries provided by Lt. Proll. So the fact that some of 27 the reviewers relied on the accuracy of the summaries of witness interviews 28 by Lt. Proll rather than listening to the recordings themselves, is (1) actually 19- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO V.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1093 I fairly typical of reviewers and (2) is not all that important where the 2 summaries are materially accurate. So, where is the dishonesty as it relates to 3 Lt. Proll. It is non-existent. 4 Moreover, even if someone can find a seemingly innocuous inaccuracy 5 in a statement summary, that does not mean Lt. Proll was being dishonest; it 6 could be he is human. And it does not mean he was trying to hide anything 7 when the actual recordings have always been available to all involved in this 8 case, including the appellant, to use to compare the recordings to the 9 summaries. The motion must be denied. 10 So, to sum up, in Memro, supra, the claim was a coercive interrogation. The court 11 held only complaints made by persons who alleged coercive interrogation tactics were 12 engaged in by the officers who allegedly engaged in the coercive interrogation in that case 13 should be reviewed. The same is true here as it relates to Sgt. Pfarr and Lt. Smith. Here, 14 the claim is disparate treatment does not lie when the employees at issue in this motion were 15 supervisory only and did not engage in the same of similar misconduct that appellant did. 16 Anything more is nothing short of traipsing through the confidential files of all of the 17 witnesses used by the department in this case to see if anything is in there. That is the sort 18 of "fishing expedition" frowned on by the courts. And as it relates to Lieutenant Proll, the 19 declaration in support of those motions are woefully inadequate and each motion should be 20 denied. 21 And finally, the hearing officer in this case should seriously consider and we are 22 making the request, that all of these motions be denied with prejudice. Appellant has now 23 had three bites of the apple and has come up short each time.4 It is the height of speculation 24 that appellant will be able to come with anything different than what has already been 25 provided, if given yet another chance. 26 27 28 `Admittedly, the denial of the first set of motions was based on procedural error. However, those motions were inadequate in their merits. 20- OPPO. OF THE CUST. OF THE RFCORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRIAL DISC. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1094 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 CONCLUSION The motions should be denied consistent with this opposition. Dated: September—T2015 Respectfully submitted JONES & MAYER G Gtego P Palmer Attorrky,K for the Custodian of the San Luis Obispo Police Department 21- OPPO. OF THE CUST. OF THE RECORDS OF SAN LUIS OBISPO P.D. TO DEFDTS.MO. FOR PRETRLSL DISC. F- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1095 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 September 18, 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 September 18, 2015 at Fullerton, California. LA RA MILLER' Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1096 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. Castillo Harper, APC 3333 Concours St., Bldg 4, Ste. 4100 Ontario, CA 91764 Telephone: (909) 466-5600 Facsimile: (909) 466-5610 kasey@castilloharper.com nikki@ castilloharper.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 1097 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 1 BEFORE THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO In the Matter of the Appeal ) of the Dismissal of ) OFFICER KEVIN WADDELL, ) Appellant, ) and ) CSMCS Case No. ARB-14-0209 POLICE DEPARTMENT OF THE ) CITY OF SAN LUIS OBISPO, ) VOLUME I PAGES 1-174 Hiring Authority. ) TRANSCRIPT OF PROCEEDINGS SAN LUIS OBISPO, CALIFORNIA THURSDAY, JUNE 25, 2015 11: 09 A.M. - 5:56 P.M. REPORTED BY MELISSA PLOOY, CSR #13068 MCDANIEL REPORTING Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1098 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 2 1 THE TRANSCRIPT OF PROCEEDINGS WAS TAKEN AT THE 2 SAN LUIS OBISPO UTILITIES DEPARTMENT, 990 PALM STREET, 3 SAN LUIS OBISPO, CALIFORNIA, BEFORE MELISSA PLOOY, A 4 CERTIFIED SHORTHAND REPORTER IN AND FOR THE STATE OF 5 CALIFORNIA, ON THURSDAY, JUNE 25, 2015, COMMENCING AT 6 THE HOUR OF 11: 09 A.M. 7 8 APPEARANCES OF COUNSEL 9 HEARING OFFICER: 10 SOUTHWESTERN LAW SCHOOL BY: CHRISTOPHER DAVID RUIZ CAMERON 11 PROFESSOR OF LAW 3050 WILSHIRE BOULEVARD 12 LOS ANGELES, CALIFORNIA 90010 213) 738-6749 13 CCAMERON@SWLAW.EDU 14 FOR THE APPELLANT: 15 GASPARD, CASTILLO, HARPER, APC BY: KASEY A. CASTILLO, ESQ. 16 NICOLE A. NALEWAY, ESQ. 3333 CONCOURS STREET 17 BUILDING 4, SUITE 4100 ONTARIO, CALIFORNIA 91764 18 (909) 466- 5600 KASEY@GCHATTORNEYS.COM 19 NIKKI@GCHATTORNEYS.COM 20 FOR THE HIRING AUTHORITY: 21 JONES & MAYER BY: GREGORY P. PALMER, ESQ. 22 3777 NORTH HARBOR BOULEVARD FULLERTON, CALIFORNIA 92835 23 (714) 446- 1400 GPP@JONES-MAYER.COM 24 25 ALSO PRESENT: LAURA WADDELL, CAPTAIN CHRIS STALEY, CHRISTINE DIETRICK Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1099 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 3 1 I N D E X 2 WITNESS DIRECT CROSS REDIRECT RECROSS 3 SERGEANT CHAD PFARR 23 84 -- -- 4 5 6 7 I N D E X T O E X H I B I T S 8 DEPARTMENT'S MARKED ADMITTED 9 EXHIBIT 9 82 10 EXHIBIT 10 82 11 EXHIBIT 12 83 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1100 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 4 1 THE HEARING OFFICER: Good morning, everybody. 2 It's Thursday, June 25th, 2015. We're here at 879 Morro 3 Street in the utility building for City of San Luis 4 Obispo. My name is Christopher David Ruiz Cameron and 5 I'm the duly appointed hearing officer in this matter 6 involving appeal from the dismissal of Officer Kevin 7 Waddell and I have a case number from the CSMCS of 8 Number ARB-14-0209. This is our first day of hearing 9 and I'd like to begin with the appearances of the 10 advocates, first of all, on behalf of the department. 11 MR. PALMER: Good morning. Greg Palmer from 12 the Law Firm of Jones & Mayer for the San Luis Obispo 13 Police Department. 14 THE HEARING OFFICER: Thank you. And for the 15 appellant? 16 MS. CASTILLO: Kasey Castillo of Gaspard, 17 Castillo, Harper on behalf of Kevin Waddell, who is 18 present, along with Nicole Naleway of the same firm. 19 THE HEARING OFFICER: Very good. And I'll also 20 note for the record that Officer Waddell's spouse is 21 here, as well. 22 Could you remind me of your name? 23 MRS. WADDELL: Laura. 24 THE HEARING OFFICER: Laura, thank you very 25 much. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1101 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 5 1 MR. PALMER: Which is something I'd like to 2 address now, or do you want me to do it later? 3 THE HEARING OFFICER: Is this an on-the-record 4 discussion? 5 MR. PALMER: Yes. 6 THE HEARING OFFICER: All right. Let's take 7 care of it. 8 MR. PALMER: Thank you. We did note that 9 Mrs. Waddell is present in the hearing room. I think 10 it's probably up to them if they want her to be present, 11 but if she's going to be a potential witness, we would 12 ask that she be excluded. 13 MS. CASTILLO: And she is not. 14 THE HEARING OFFICER: So she's just here as an 15 observer for support, et cetera? 16 MS. CASTILLO: Correct. 17 THE HEARING OFFICER: Very good. All right. 18 We've got that out of the way then. 19 MR. PALMER: Thank you. 20 THE HEARING OFFICER: Okay. Anything else 21 before we get started? 22 MR. PALMER: No. 23 THE HEARING OFFICER: Very good. We're ready 24 for opening statements. Would the department care to 25 present opening at this time? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1102 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 6 1 MR. PALMER: Yes. 2 Kevin Waddell, up until his termination of 3 employment, was a police officer with the San Luis 4 Obispo Police Department at the time of the events that 5 we're going to describe to the assigned patrol division. 6 Patrol division has several overtime opportunities. The 7 most important one you're going to hear a lot about is 8 called a CAT shift, and CAT is an acronym, all caps, 9 C-A-T, stands for Community Action Team. It is a -- 10 sort of a directed patrol activity. It's a two-man, 11 two-officer unit that is concentrated in the downtown 12 area to take care of recurring downtown police issues 13 involving transients and other things that happen in the 14 downtown area of the City of San Luis Obispo. That 15 shift runs from 11: 00 a.m. to 4:00 p.m., and, as I said, 16 it's a two-officer unit. At the time period that we're 17 going to be talking about, which is primarily 2013, 18 officers would sign up for that shift, volunteer for the 19 overtime assignment. 20 Mr. Waddell signed up for that shift often. 21 His sergeant at the time was Sergeant Chad Pfarr. Just 22 so that you know, Pfarr is spelled P-F-A-R- R, with the P 23 being silent. He was the watch commander for the shift 24 on which the CAT assignment fell, primarily. He noticed 25 over the time period in late 2013, September, October Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1103 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 7 1 2013, that Mr. Waddell would sometimes be late for the 2 11: 00 start time of that CAT shift. It got to be a 3 certain problem that he spoke to his lieutenant about 4 it. His lieutenant is Lieutenant Jeff Smith, who you'll 5 hear from the next time we get together. 6 Mr. Waddell signed up for the CAT shift for 7 October 19th, 2013, and in a conversation that Sergeant 8 Pfarr had with Lieutenant Jeff Smith prior to that date, 9 the discussion was had about the fact that Mr. Waddell 10 tends to show up late and Sergeant Pfarr was going to 11 have a discussion with him about that when he showed up 12 for the CAT shift on October 19th. 13 Now, October 18th, the night before the CAT 14 shift on October 19th, Sergeant Pfarr saw Detective 15 Stahnke, which is S-T-A-H- N-K- E, and Detective Stahnke 16 said, see you tomorrow, I'm working the CAT shift 17 tomorrow, and Sergeant Pfarr said, see you tomorrow. So 18 he knew that Detective Stahnke and Mr. Waddell were 19 signed up for the CAT shift October 19th, 2013, at 11: 00 20 a.m. 21 Sergeant Pfarr was on duty at that time, was 22 waiting for Mr. Waddell to come in to speak with him 23 about has tendency to be tardy prior times. When 11: 00 24 came and went, there was no Mr. Waddell. About 11: 05, 25 or so, Sergeant Pfarr double-checked some of the shift Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1104 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 8 1 computer systems, the shift -- how the shift schedule is 2 coordinated, saw something which suggested to him maybe 3 there wasn't really a CAT shift that day. So he called 4 Lieutenant Smith just to make sure there hadn't been 5 some sort of cancellation of which he wasn't aware. The 6 written sign-up sheet was still there. So he just 7 wanted to make sure he solved that confusion. He called 8 Lieutenant Smith, who was off duty at that time, didn't 9 receive an answer and left a message for him. 10 At 11: 11 a.m. when, still, Mr. Waddell had not 11 showed up for the shift, Sergeant Pfarr texted him, 12 said, are you coming in today, are you still coming in 13 today. You'll see we have the screen capture of the 14 text and his response and you'll see that. It's in the 15 exhibit book. There was some confusion from Sergeant 16 Pfarr as to whether or not he got the right Kevin. 17 Ultimately, he did. Those parts of the texts are 18 irrelevant because he was talking to the right Kevin, 19 but he said, "Are you still coming in today?" 20 At about the time he sent that text, Sergeant 21 Pfarr saw Detective Stahnke and he said, hey, do you 22 know where your partner is? He said, yeah, I received a 23 text from him about 45 minutes or an hour ago, saying 24 he's going to be 30 minutes late. Mr. Waddell never 25 sent any text or any sort of notification to his Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1105 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 9 1 sergeant, Sergeant Pfarr, that he was going to be late, 2 just to Detective Stahnke. 3 And so while that discussion was being had, 4 Sergeant Pfarr received a response text message from 5 Mr. Waddell. And I think we can all probably understand 6 the gist of the text message now, having known what we 7 know, but at the time when Sergeant Pfarr read that text 8 message, it was kind of confusing. It referred to 9 Lieutenant Smith, it referred to working out ahead of 10 time with Lieutenant Smith, but the words don't really 11 make a lot of English sense, if you look at them and 12 know nothing else. So Sergeant Pfarr texted him back 13 and said, "That made no sense. See me when you come 14 in." 15 Pretty quickly, got another response text from 16 Mr. Waddell, which said, basically, I talked to Smith 17 yesterday -- that will be important -- yesterday being 18 October 18th, about coming in at 11: 30, meaning 11: 30 19 a.m. on the 19th, and he said -- the pronoun there, 20 obviously, referring to Lieutenant Smith -- fine, no 21 problem. That's probably going to be the pivot point of 22 this case, in addition to another conversation, which 23 I'll get to in a minute. With that text, Sergeant Pfarr 24 thought, okay, no problem, he's got authorization from 25 Lieutenant Smith, no problem, but Mr. Waddell said he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1106 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 10 1 would stop by anyway. 2 He did finally show up at about 11: 35 when he 3 went in to see Sergeant Pfarr and they had a 4 conversation, which breathed life and added more facts 5 and added more context into the text message. And 6 Sergeant Pfarr, you'll hear from him later today. 7 Mr. Waddell came in and said, basically, I talked to 8 Smith yesterday, again, referring to October 18, we 9 talked in the locker room, told him about his daughter 10 having a dance recital that he wanted to be present for, 11 the dance function, that he wanted to go, and 12 Lieutenant Smith authorized him to come in 30 minutes 13 late for the shift the next day so he could attend the 14 dance function. 15 More context was provided. This conversation 16 that he purportedly had with Lieutenant Smith occurred 17 the night before, October 18th between 4:00 and 4:30 18 p.m., and this conversation happened in the locker room. 19 That conversation was in person. 20 We know some of the things they're going to say 21 about how reliable the text message should be, but we're 22 going to emphasize that this was also followed up in a 23 direct face-to-face conversation with Sergeant Pfarr. 24 So, again, Sergeant Pfarr thinking, 25 authorization, fine. It was about at that time that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1107 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 11 1 Lieutenant Smith called back in response to the phone 2 message that he left earlier that hour and Sergeant 3 Pfarr has a conversation with Lieutenant Smith, it's 4 okay, you authorized it. He said, what are you talking 5 about? He recounts the conversation in the text 6 message. Lieutenant Smith said, I never had that 7 conversation with Mr. Waddell, not a chance, never 8 authorized him to come in late on October 19. Oh, sure, 9 I saw him in the locker room yesterday in the afternoon. 10 You'll hear from Lieutenant Smith, I saw him in the 11 locker room, we, maybe, exchanged a hi, made eye 12 contact, he was doing something on his phone, maybe 13 texting. That was the extent of our conversation. He 14 did not have specific authority from me, says Lieutenant 15 Smith, to come in on October 19th at 11: 30. 16 So based on that, Sergeant Pfarr thought he'd 17 been lied to, made him upset. He called Mr. Waddell in 18 from the field because they had already gone in service 19 with him and Detective Stahnke, and you'll find out that 20 Mr. Waddell and Detective Stahnke had kind of a similar, 21 perhaps not as detailed, conversation with Detective 22 Stahnke about why he was late and what was going on, but 23 Mr. Waddell does come in and there's a very, very brief 24 conversation and Mr. Waddell can tell that Sergeant 25 Pfarr is upset. He tells him he talked to Lieutenant Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1108 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 12 1 Smith and you lied to me, and that's when Sergeant Pfarr 2 shut it down because there's obvious situations going on 3 there with potential internal affairs investigation 4 coming. Don't say any more, I don't want you to talk 5 anymore, but they do have that quick interaction. 6 So Sergeant Pfarr writes a memo later that day, 7 which goes up and becomes an internal affairs 8 investigation, which then becomes part of the charges on 9 which this case is based. 10 Now, there's another event that sort of -- sort 11 of coincides with the event involving the CAT shift. At 12 about the same time late 2013, Sergeant Pfarr gets wind 13 of the notion that the department is putting out 14 promotional exams for detectives and some other special 15 assignments and he gets wind of the fact that 16 Mr. Waddell has put in for those special assignments and 17 he, in his head, connects up the potential for being a 18 detective, for being into one of those assignments that 19 has a little more autonomy, less direct supervision. He 20 connects that up to an event that occurred earlier in 21 2013 -- 22 THE HEARING OFFICER: You're talking about 23 Sergeant Pfarr connecting this up? 24 MR. PALMER: Correct. 25 THE HEARING OFFICER: Okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1109 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 13 1 MR. PALMER: If I was unclear, I apologize. 2 Sergeant Pfarr is thinking these promotions are 3 coming up, Mr. Waddell has expressed interest, he's put 4 in for it, and then he's still been thinking about this 5 event back on February 22nd, 2013, and those two events 6 connect up in his head such that he now has to tell the 7 lieutenant about it because of the potential of it being 8 a detective. That event you'll hear about. Really has 9 nothing to do with the second set of charges against 10 Mr. Waddell, except for it provided a platform for them 11 to occur. 12 It was a rather spectacular traffic collision 13 that occurred February 22nd, 2013, at the corner of 14 Orcutt and Johnson. It was a single-car accident 15 rollover, but with a Bentley, a very nice convertible 16 looking Bentley. At the time, it was potential fatal. 17 Everybody thought that the passenger in the car was 18 going to die. So lots of officers responded, accident 19 investigation team responded, including Mr. Waddell and 20 including Sergeant Pfarr, who, at the time, was a 21 sergeant with about one-month experience being a 22 sergeant. 23 The accident investigation happens. It has its 24 own life, it takes a couple hours, it concludes and 25 everybody is sort of tidying up the scene. The tow Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1110 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 14 1 truck driver is there, the car is being rided and being 2 put on the tow truck. 3 And toward the end of this event, what 4 Mr. Waddell starts to do, with Sergeant Pfarr and others 5 looking on, the first thing he attempts to do is uses 6 his hands and fingers to try to take the Bentley 7 insignia, and you'll see some pictures of what that 8 looks like, off the trunk of the car. He's unsuccessful 9 in doing that. He goes to the tow truck operator and he 10 asks for a screwdriver. The tow truck operator gives 11 him a screwdriver and he continues to try to pry the 12 Bentley item, the Bentley insignia, affixed to the trunk 13 of the car, off of the trunk. He's unsuccessful. He 14 goes to the steering wheel, tries to cut the Bentley 15 emblem from the fabric of the steering wheel. It's 16 already destroyed a little bit because the air bag's 17 deployed, but he tries to cut it off. 18 And Sergeant Pfarr is looking at this and, what 19 is he doing? Does that have something to do with the 20 accident investigation? What possible thing could it 21 have to do with the accident investigation? And he 22 says, you know, that's real funny, knock it off, and he 23 goes to leave. I think Sergeant Pfarr will account for 24 the fact that he probably should have taken more 25 affirmative action, but that was his decision at the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1111 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 15 1 time. He says, knock it off, and he goes to leave. 2 As he's leaving, he's watching, kind of, in the 3 rearview mirror and he sees Mr. Waddell go to one of the 4 wheels. You'll see some pictures of the wheels. Each 5 one of the wheels has a small little, like, 6 inch-and-a-half, 2-inch-diameter wheel cap on the hub -- 7 it's not really a hub cap, but it's on the spindle and 8 it has a B insignia for Bentley that we all know and 9 recognize, and he uses the screwdriver to take that off, 10 and by Sergeant Pfarr's account, he does get that item 11 off of the wheel hub spindle and puts it in some sort of 12 evidence bag. 13 That's when he starts to call Mr. Waddell on 14 the phone, and at the time the call's going through, 15 you'll hear Sergeant Pfarr say that he received a photo 16 text from Mr. Waddell with a photograph showing the 17 items back in the Bentley, with the bag back on the 18 floorboard of the driver's side, doesn't really matter, 19 but the items are back on the floor and the phone 20 connects up. What are you doing? I put them back, 21 Sergeant. I put them back. 22 All right. So that's taken care of. So 23 Sergeant Pfarr leaves the scene, everybody leaves the 24 scene. There's a subsequent discussion, there's a 25 subsequent meeting between Sergeant Pfarr and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1112 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 16 1 Mr. Waddell back in the office later after that. 2 Mr. Waddell is apologetic and attributes it to just a 3 joke, we were coming to mess with the new sergeant, a 4 one-month sergeant, I was just messing with you, and 5 they had what Sergeant Pfarr will recount a detailed 6 discussion about that was incredibly bad judgment, you 7 did it in front of the tow truck driver, you did it in 8 front of other people, what are they thinking, they're 9 thinking, reasonably, you're trying to steal car parts. 10 That's a violation of the Vehicle Code. 11 In Sergeant Pfarr's mind, he thinks that, with 12 the experience of a one-month sergeant that he's had, 13 the level of time he spent with Mr. Waddell in that 14 time, which was not a lot, at least, as a 15 sergeant-supervisor relationship, at that time, Sergeant 16 Pfarr thinks that he has this, at least, for this time, 17 resolved. So he doesn't write a memo about it, he 18 doesn't make any written notification -- 19 THE HEARING OFFICER: There's no report? 20 MR. PALMER: There's no report, he doesn't make 21 an entry into a personnel file jacket, it's just on 22 Mr. Waddell's mind and Sergeant Pfarr's mind, and I 23 think you'll hear Sergeant Pfarr say, in hindsight, I 24 probably should have done that, I should have done 25 something more formal, but he doesn't at the time, and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1113 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 17 1 then that's when it connects up back later in 2013 when 2 the detective position opens. 3 Sergeant Pfarr, at that time, goes to, first, 4 Lieutenant Bledsoe, which is over detectives, and then 5 to Lieutenant Smith, which is his direct lieutenant, and 6 he says, look, I have a problem with this, I'm not sure 7 he really was joking, he might have snowed me with this 8 joke stuff, he might have been really trying to take the 9 car parts, and then that becomes part of this case just 10 because the catch that was going on at the time. 11 I know what Ms. Castillo is going to say 12 because I've already heard her say it, that it's 13 time-barred under 3304(d), you didn't finish your 14 investigation and notice the proposed discipline within 15 one year because it happened way back on February 22nd, 16 2013. 17 We're going to push back on that because the 18 statute reads that the discovery has to be somebody who 19 has the authority to initiate an internal affairs 20 investigation. That's not Sergeant Pfarr and that's not 21 Lieutenant Smith. That's the chief and the captain 22 together, and they didn't know about it until late 2013, 23 for which Sergeant Pfarr's response, but it doesn't make 24 it time-barred. 25 And so we're going to prove to you that he was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1114 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 18 1 dishonest with Sergeant Pfarr on the morning of October 2 19th at the 11: 00 a.m. hour in terms of getting specific 3 authorization from Lieutenant Smith to be late that day, 4 that he lied several times in his interview with 5 Lieutenant Bledsoe with Mr. Waddell in December of 2013 6 about that same event. 7 THE HEARING OFFICER: September? 8 MR. PALMER: Did I say September? December -- 9 THE HEARING OFFICER: I just didn't hear. 10 MR. PALMER: December 2013 -- 11 THE HEARING OFFICER: December. Okay. 12 MR. PALMER: -- as well as the misconduct 13 charges related to the Bentley accident. 14 THE HEARING OFFICER: Okay. And would the 15 appellant care to make an opening statement at this 16 time? 17 MS. CASTILLO: Yes. 18 THE HEARING OFFICER: Go ahead. 19 MS. CASTILLO: Mr. Palmer, you know me so well. 20 You just anticipate everything I'm going to say. 21 THE HEARING OFFICER: Well, he didn't -- he 22 knew you well enough not to go in great length about 23 what the opposition was to the statute argument, but... 24 MS. CASTILLO: Okay. Well, it's our position 25 that, upon review of the evidence that will be presented Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1115 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 19 1 by Mr. Palmer and his team, that the department could 2 not, cannot, will not be able to present anything that 3 will verify any of the allegations that were presented 4 by either investigators either in the first IA or the 5 second IA, which we do agree should be time-barred as to 6 the Bentley IA. I guess, they're calling it the CAT IA 7 or the texting IA. 8 MR. PALMER: I -- you know, I strongly rephrase 9 this. I got down to the CAT event and the Bentley 10 event. 11 MS. CASTILLO: Okay. I'll agree. CAT event. 12 We were calling it texting, but we can say CAT. 13 MR. PALMER: CAT shift event. 14 MS. CASTILLO: Right. I don't think -- 15 THE HEARING OFFICER: Don't say that too 16 quickly. 17 MS. CASTILLO: Right. I did kind of think that 18 you said -- 19 MR. PALMER: Besides the F. 20 MS. CASTILLO: Right. They won't meet their 21 burden of proof or anything close to it. 22 Additionally, if they could, which they won't, 23 the penalty is grossly excessive in this case, given the 24 fact that Officer -- we call him, at our law office, 25 Officer Awesome -- is an individual who has a career of Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1116 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 20 1 12 years with no penalties, no prior discipline, ever, 2 ever. 3 So, in a nutshell, this sounds like a typical 4 administrative discipline case, but it's not because the 5 evidence will also show the events culture department 6 and past practices that will put all of this into the 7 actual correct context, which is quite contrary to that 8 of the version presented by Mr. Palmer. I have no doubt 9 that this hearing will be very interesting for you. 10 And the common denominator, other than Officer 11 Waddell, will definitely be Sergeant Pfarr, it will also 12 be the chief of police. My understanding is not this 13 chief of the police, but the old chief of police, but I 14 am excited to meet Sergeant Pfarr today. 15 Other than the time-barred issue, we'll also 16 intend to prove up some Povar violations, some Skelly 17 violations. So this probably will go longer than, 18 maybe, the three days additional. 19 THE HEARING OFFICER: I neglected to ask, but 20 you are not stipulating to Skelly on being satisfied, I 21 take it? 22 MS. CASTILLO: Well, there was a hearing. I 23 will say that that occurred, but other than that, I was 24 not his attorney at the time. So I will say that the 25 Skelly process occurred, but I will not say that his due Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1117 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 21 1 process rights were consistently -- no. I will not -- 2 actually, I can say, for the record, if that makes 3 everything clear, I will not stipulate to anything in 4 this case. 5 THE HEARING OFFICER: Okay. I take it, the 6 department is going to put on, as part of its 7 case-in-chief, some info about the Skelly hearing? 8 MR. PALMER: Uh, can we go off the record for a 9 minute? 10 THE HEARING OFFICER: Sure. Let's do that. 11 (Discussion off the record.) 12 THE HEARING OFFICER: So it just became 13 apparent during the appellant's opening that there will 14 be no stipulation that the requirements of Skelly have 15 been satisfied here, and so we had a discussion off the 16 record, the department's burden to do that. If I 17 understand correctly, the department feels that they can 18 put on evidence that the burden is satisfied through 19 Captain Staley, who is here, but there was a prior chief 20 of police who Skelly'd Officer Waddell, and so if that's 21 charged by the appellant, we may very well have subpoena 22 testimony from that chief, or, at least, attempt to get 23 that at some point. Is that a fair summary of what we 24 were talking about? 25 MS. CASTILLO: Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1118 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 22 1 MR. PALMER: Yes. Thank you. 2 THE HEARING OFFICER: So I'm just observing for 3 the moment that there's no Skelly stip and we'll wait 4 for the evidence to come in. 5 Ms. Castillo, is there anything else on your 6 opening? 7 MS. CASTILLO: No. Thank you. 8 THE HEARING OFFICER: Very good. So let's 9 stand in recess and go off the record. 10 (Luncheon recess.) 11 THE HEARING OFFICER: We're back on the record. 12 We're ready to begin with -- I take it, the department's 13 calling its first witness? 14 MR. PALMER: Yes. We call Sergeant Chad Pfarr. 15 THE HEARING OFFICER: Sergeant Pfarr, can I get 16 you to raise your right hand? Do you affirm, sir, the 17 testimony you are about to give will be the truth, the 18 whole truth and nothing but the truth? 19 THE WITNESS: Yes. 20 THE HEARING OFFICER: Great. Can you put your 21 hand down? Did you already get the spelling of Sergeant 22 Pfarr's last name? 23 THE COURT REPORTER: No. 24 THE HEARING OFFICER: Go ahead and spell it. 25 THE WITNESS: P as in Paul, F as in Frank, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1119 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 23 1 A-R- R. 2 THE HEARING OFFICER: Go ahead. 3 4 DIRECT EXAMINATION 5 BY MR. PALMER: 6 Q. Thank you. Good afternoon, Sergeant Pfarr. 7 A. Good afternoon. 8 Q. Would you tell us all by whom you are employed, 9 please? 10 A. City of San Luis Obispo Police Department. 11 Q. In what capacity? 12 A. I'm a police sergeant. 13 Q. Let's work from the outside in. 14 How long have you been employed with the San 15 Luis Obispo Police Department, total time? 16 A. 15 -- a little over 15 years. 17 Q. And you're ranked as, currently, sergeant? 18 A. Yes. 19 Q. How long have you been a sergeant? 20 A. Two and a half years. 21 Q. Did you spend any time as a corporal or a one 22 stripe, or do they have those designations? 23 A. No. 24 Q. You went straight from officer to sergeant? 25 A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1120 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 24 1 Q. Do you remember, approximately, the month and 2 year you were promoted? 3 A. It was February of 2013. 4 Q. Okay. What's your current assignment? 5 A. The supervisor for the downtown bicycle unit. 6 Q. Was that your assignment back in October of 7 2013? 8 A. No. 9 Q. What was your assignment then? 10 A. I was a patrol sergeant. 11 Q. And just briefly, I think we all kind of know, 12 but in case somebody reads this later on, just briefly 13 outline the duties of a patrol sergeant. 14 A. Supervising patrol officer is a very basic 15 level, proof reports, make sure scheduling issues are 16 met, answer questions for the public and officers as 17 they arise. 18 Q. Are you in charge of a complement of officers? 19 A. Yes, sir. 20 Q. About how many? 21 A. Anywhere from four to ten. 22 Q. And do you know Kevin Waddell? 23 A. I do. 24 Q. How do you know him? 25 A. He was previously one of my partners at the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1121 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 25 1 police department. 2 Q. Okay. And when you made sergeant, did -- at 3 some point, did you become his supervisor? 4 A. Yes. 5 Q. About when? 6 A. Actually, very quickly. Right after I was 7 promoted. I wasn't his direct supervisor. He was 8 working at the bike unit at the time and I was patrol 9 sergeant. So we worked hand-in-hand, but he had a 10 different sergeant that he was directly supervised by. 11 Q. Are you familiar with the phrase, functional 12 supervision? 13 A. Yes. 14 Q. Can you take a few moments and explain what 15 that is? 16 A. In his case, when his supervisor wasn't 17 present, I would have been functional supervisor at the 18 time when Sergeant Amoroso was out or missing. 19 Q. Okay. I want to take you back to a particular 20 day in time. It's going to be October 19th, 2013. And, 21 actually, I want to go one more day, the day before 22 October 19th, October 18, 2013. You've got those days 23 in your mind? 24 A. Yes. 25 Q. Do you know Detective Adam Stahnke? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1122 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 26 1 A. I do. 2 Q. How do you know him? 3 A. We were detective partners for a number of 4 years. We've worked together at the department for 5 around ten years. 6 Q. Was -- when you made sergeant, was he on your 7 shift or did you have just functional supervision, or 8 what was your connection? 9 A. It would have been somewhat functional, but not 10 much. He had a completely different supervisor. We 11 were working, normally, opposite ends of the week. 12 Q. Sometime on October 18th, 2013, did you run 13 into Detective Stahnke? 14 A. I did. 15 Q. And what were the circumstances? 16 A. He was working in the Detective Bureau at the 17 time. I was in, covering day watch patrol. As I saw 18 him walk past my office, it was a Friday, or his Friday, 19 so I told him to have a good weekend, and then he made a 20 comment that he would be in the next day and would see 21 me because he was working CAT, the Community Action 22 Team, an overtime shift. 23 Q. And which day would that -- which day was he 24 working CAT shift? 25 A. I can't remember if the 18th -- I believe it Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1123 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 27 1 was a Friday and he was working the 19th, which, I'm 2 pretty sure, was a Saturday. 3 Q. Is the CAT typically on a Saturday? 4 A. Yes. 5 Q. Can you take a few moments to explain to the 6 hearing officer what a CAT means and what the CAT shift 7 is? 8 A. We currently have two officers that are 9 assigned as CAT. It was a newly-created program at the 10 direction of City Council and city manager. The chief 11 was given direction to form a team of two guys that 12 would go out, officers, and they would deal directly 13 with habitual offenders specifically in our downtown 14 area. So it was your chronic drunks and aggressive 15 panhandling, things of that nature. 16 Prior to those two officers being hired, the 17 council and the city manager funded overtime for two 18 patrol officers to work in that function until those two 19 full-time positions could come online. 20 So there was a period of about a year where 21 there was these five-hour overtime shifts that would be 22 posted throughout the week, depending on activity levels 23 downtown. 24 THE HEARING OFFICER: So you got overtime for 25 doing this during the time you're talking about? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1124 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 28 1 THE WITNESS: Correct. 2 THE HEARING OFFICER: Sorry for interrupting 3 you. 4 MR. PALMER: That's fine. 5 THE HEARING OFFICER: The acronym for CAT is 6 what? 7 THE WITNESS: Community Action Team. 8 THE HEARING OFFICER: Thank you. Go ahead. 9 BY MR. PALMER: 10 Q. And what time was the CAT shift intended to 11 begin? 12 A. 11: 00 to 4:00 in the afternoon. 13 Q. And was it always intended to be a two-officer 14 unit? 15 A. That was the intention; however, officers 16 permitting -- since it was overtime, that wasn't always 17 met. Sometimes it was not filled because the staffing 18 didn't permit and, other times, it was one or two 19 officers. 20 Q. Was the default expectation, though, to be a 21 two-officer unit? 22 A. Yes. 23 Q. Okay. When you had that brief conversation 24 with Detective Stahnke on October 18th, 2013, did you 25 know at that time if the next day's CAT shift was going Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1125 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 29 1 to be a two-officer team? 2 A. I don't recall. 3 Q. Okay. Did Detective Stahnke mention anything 4 about who his partner would be the next day? 5 A. I believe he said that he would just be in, and 6 I can't remember if he told me it was going to be Kevin 7 or if I looked at the sheet later on, the following 8 morning, to determine that. 9 Q. At some point, you -- 10 MS. CASTILLO: I'm sorry. Can we read back -- 11 I don't know if that was responsive. So can we either 12 have it read back or -- 13 THE HEARING OFFICER: Sure. Let's read back 14 the Q and the A. 15 (Record read by the court reporter.) 16 BY MR. PALMER: 17 Q. But, at some point, you figured out that Kevin 18 Waddell was going to be his partner? 19 A. Yes. 20 Q. What time did you start duty on October 19th, 21 2013? 22 A. At 6:45 in the morning. 23 Q. And you were scheduled to work throughout the 24 day till when? 25 A. Till 7:00 that evening. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1126 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 30 1 Q. Okay. Prior to that October 19th, 2013, CAT 2 shift beginning, did you have a desire to speak to 3 Mr. Waddell when he came in? 4 A. Yes. 5 Q. Can you take us through about what you were 6 going to speak to him and what led up to that? 7 A. So the Saturday before, which was the 12th, 8 there was another two positions that we had intended to 9 fill, only Mr. Waddell had signed up for that shift on 10 the 12th. Typically -- and I wasn't aware of that at 11 the time. 12 MS. CASTILLO: Wait. I'm sorry. Thank you. 13 THE WITNESS: So, typically, as the day watch 14 supervisor, the officers would come in and we have a box 15 that contains some necessary equipment that I need to 16 check out to them before they go out on patrol. At 17 around 11: 15, nobody had come to see me for that 18 equipment yet, which led me to believe somebody was late 19 for that shift. 20 THE HEARING OFFICER: You're talking about 21 Saturday, the 12th, now? 22 THE WITNESS: Correct. 23 THE HEARING OFFICER: Okay. 24 THE WITNESS: So I checked the sign-up sheet, 25 saw it was Mr. Waddell, went down to the locker room to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1127 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 31 1 see if he was there or if he just hadn't come to see me 2 yet because I was ready to go back out into the field. 3 So I found him in the locker room. He was still 4 changing, getting ready to finish, getting ready to go 5 out and he commented that he didn't realize he needed 6 gas. So he had -- he was late because of the gas 7 situation. That was the end of it. 8 Later in that week, there was another shift 9 that he worked where we hadn't heard any activity, and, 10 typically, these shifts are a very proactive type of 11 assignment. We expect to hear a lot of radio traffic. 12 I hadn't heard that. 13 There was a -- we used to have a downtown 14 satellite office. It was a small one-room office, no 15 windows. It was kind of a way to get away from the 16 public and work on reports and whatnot. So I responded 17 to that office, I can't remember which day it was, but 18 it was in between the 12th and the 19th, and found 19 Mr. Waddell watching a movie, while eating his lunch. 20 So based on that, I -- we didn't have any 21 conversation about it, but it was -- I could tell he was 22 tired. I offered to buy him a coffee. So we walked out 23 of the office and I bought him a coffee and he went out 24 and completed patrol some more. 25 Based on those two incidents, I decided to have Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1128 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 32 1 a conversation with the day watch lieutenant, who was in 2 charge of scheduling all that overtime. That was 3 Lieutenant Smith. Kevin had been preparing for a family 4 vacation and had signed up for quite a lot of this 5 overtime leading up to that vacation, and based on the 6 expectations that Lieutenant Smith had given me for the 7 activity level that was expected of the officers, I went 8 to Lieutenant Smith and suggested that perhaps Kevin 9 wasn't the best officer to be working these overtime 10 shifts. 11 Rather than reassign another officer at that 12 point, Lieutenant Smith asked me to have a conversation 13 with Kevin on the 19th to address the issue and see if 14 that fixed the problem prior to us reassigning those 15 remaining shifts to another officer. 16 BY MR. PALMER: 17 Q. And so were you waiting for Mr. Waddell to 18 arrive on the 19th? 19 A. Yes. 20 Q. Did 11: 00 a.m. come and go? 21 A. Yes. 22 Q. And did he arrive? 23 A. No. 24 Q. Did you develop some concern as to whether or 25 not the shift was going to occur or not? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1129 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 33 1 A. Yes. 2 Q. What happened in there? 3 A. So at 11: 00, I went out to see if anybody was 4 there. I'd come back in from the field so I could 5 assign the patrol box. Nobody was there yet. So I went 6 into my office and checked the digital calendar 7 scheduling program that we use. 8 Q. Let me stop you there. Is that called 9 SpeedShift? 10 A. Yes. 11 Q. Because I saw that in some of the transcripts. 12 A. Yes. 13 Q. So SpeedShift is an electronic version of the 14 calendar system? 15 A. Correct. Our scheduling system. 16 Q. Go ahead. 17 A. So the 19th was blank, no officers assigned to 18 work that day on the shift. As I went out into the hall 19 to look at the -- we have a hard copy for the CAT 20 overtime shifts where the officers -- whoever wants it 21 can sign up for it, and the two most senior officers get 22 priority and they get the shift if they want it. 23 On my way out to go do that, I put a quick 24 phone call in to Lieutenant Smith to confirm that the 25 shift hadn't been canceled without him telling me or Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1130 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 34 1 something to that effect, based on there not being 2 listed anything in SpeedShift. 3 So as I went out into the hall, I didn't get an 4 answer from Lieutenant Smith. The call went 5 unanswered. 6 Q. Did you leave a message? 7 A. I don't believe I did. I think it was just a 8 missed call. 9 As I went out to check the hard copy in the 10 hall, I saw Detective Stahnke and then we were able to 11 confirm who his partner was for sure and asked if he 12 knew where he was and he told me he had talked to Kevin 13 and Kevin was running 30 minutes late. I need to back 14 up a little bit. 15 MS. CASTILLO: Wait. I don't believe there's a 16 question pending. I think it's a narrative, too. 17 THE HEARING OFFICER: Well, was Detective 18 Stahnke the one that told you this? 19 THE WITNESS: He was, yes. 20 THE HEARING OFFICER: Okay. I'll let you ask 21 the next question. 22 BY MR. PALMER: 23 Q. Okay. Let me go back a couple more ticks and 24 then I'll tee it up again. 25 You checked SpeedShift and there was nothing Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1131 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 35 1 there for the October 19th shift, then you said you went 2 and checked the sign-up sheet. Were there any entries 3 on the sign-up sheet for the CAT shift -- 4 A. Yes. 5 Q. -- on October 19th? 6 A. Yes. 7 Q. And whose names were they? 8 A. Waddell and Stahnke's. 9 Q. And what time was it at this point? 10 A. About ten after. 11 Q. And was it somewhere in that time period that 12 you met Detective Stahnke? 13 A. Yes. 14 Q. Okay. Was there something that I missed that 15 you wanted to go back to? 16 A. Yes. 17 Q. What? 18 A. Prior to going out and meeting with Detective 19 Stahnke, I had placed a text message to Kevin, asking if 20 he was still coming in to work that shift. 21 Q. So I'm getting that some of these things are 22 happening rather simultaneously? 23 A. Correct. 24 Q. Okay. So you sent a text to Mr. Waddell? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1132 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 36 1 Q. All right. And what did your text say? 2 A. Something to the effect of are you still 3 working today. 4 Q. Do you see the notebook in front of you? 5 A. Yes. 6 Q. If you can turn to Exhibit 10, please. Tell me 7 when you're there. 8 A. Okay. 9 Q. Do you recognize what is Exhibit 10? 10 A. Yes. 11 Q. How do you recognize that? 12 A. It's a text message conversation I had between 13 me and Mr. Waddell. 14 Q. There's boxes or rectangles, rounded corner 15 rectangles, that are shaded and then there's other texts 16 that are not in a rectangle. Can you reconcile what 17 that means? 18 A. The texts on the right, which are of the shaded 19 text messages, are the ones I sent from my phone to 20 Mr. Waddell's phone and the other messages are his 21 responses. 22 Q. And does this text message string go on to the 23 other page? 24 A. Yes. 25 Q. At least, to capture his full response there? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1133 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 37 1 A. Yes. 2 Q. "Are you still coming in today," is that the 3 first text that you sent Mr. Waddell about this topic 4 matter? 5 A. Yes. 6 Q. And was that about the same time you talked 7 about going out, checking the log and meeting up with 8 Detective Stahnke? 9 A. Yes. 10 Q. And what did Detective Stahnke tell you, again? 11 A. He told me that he had received a message from 12 Mr. Waddell, indicating he was running about 30 minutes 13 late. 14 Q. Did he give you any more detail as to when that 15 exchange was or what the reason was or anything like 16 that? 17 A. No. 18 Q. Okay. You sent this, "are you still coming in 19 today," text? 20 A. Yes. 21 Q. Then you followed that up with two texts. Can 22 you explain what that means? 23 A. So during previous conversations I had with 24 Mr. Waddell via text message, I knew that he had an 25 iPhone, and I also had an iPhone. So our text messages Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1134 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 38 1 would go across as iMessages instead of the standard 2 SMS text message format. 3 When I sent this first message, "are you still 4 coming in today," the message was delivered to him, but 5 it indicated it was going as a text message instead of 6 an iMessage. We also have a Kevin Philips that works 7 with us. So I thought, at first, I had inadvertently 8 sent this message to Kevin Phillips because he does not 9 have an iPhone and my text messages typically go across 10 as an SMS text message to him. On the color version of 11 this, it's indicated by blue or green messages, as 12 anyone with an iPhone would be familiar with. The blue 13 means it's an iMessage and the green is a text 14 message. 15 Q. Okay. And so what did you think and what did 16 you do? 17 A. Initially, I thought that I'd sent it to Kevin 18 Philips, and then I checked my phone and confirmed it 19 was Mr. Waddell, and then I received the response from 20 him. 21 Q. Okay. So these two interim messages really 22 cancel each other out? Is that what I'm getting? 23 A. Yes. 24 THE HEARING OFFICER: Who is Kevin Philips? 25 THE WITNESS: He's another officer that works Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1135 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 39 1 at the department. 2 BY MR. PALMER: 3 Q. Okay. How soon after -- let me set this up 4 again. You sent this text, "are you still coming in 5 today," you speak to Detective Stahnke. 6 And how soon after that did Mr. Waddell's 7 response come into your phone? 8 A. I sent this text message. I might have waited 9 ten seconds before I stood up from the office to go down 10 to check the hard copy sign-up sheet. As I was making 11 that walk down, I ran into Officer Stahnke. So maybe 30 12 to 45 seconds, I would guess. 13 Q. And you sent your initial text message at what 14 time? 15 A. 11: 11. 16 Q. And his response was what? 17 A. He indicated that he was coming in, but he was 18 going to be a little late. The text message came across 19 jumbled and I didn't understand all the words, but -- 20 Q. Could you figure some of them out? 21 A. I could. 22 Q. Did you get the gist of it? 23 A. Yes. 24 Q. At least, your interpretation of the gist of 25 it? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1136 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 40 1 A. Yes. 2 Q. What was it? 3 A. It was that he had worked it out ahead of time 4 with Lieutenant Smith and he was coming in late. 5 Q. Do you see where the second line starts with 6 the word, "out"? 7 A. Yes. 8 Q. And then it goes "ahead of one with," and then 9 I'm looking at the word that follows "with." 10 A. That would be LT for Lieutenant. 11 Q. Okay. That's how you interpreted it, anyway? 12 A. Yes. 13 Q. Okay. And he says I'm on the way? 14 A. Correct. 15 Q. Okay. And did you read that message, pretty 16 much, as soon as it popped in? 17 A. Yes. 18 Q. At the time, did that message make much sense 19 to you? 20 A. The gist of it, it kind of made sense, but I 21 still needed to talk to him. So I told him to stop by 22 to see me. I told him it didn't make much sense, but 23 come see me. 24 Q. That's the subject of the next message you sent 25 in the rounded-corner rectangle? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1137 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 41 1 A. Yes. 2 Q. Did you send that message to him pretty quickly 3 after his message popped in? 4 A. Immediately following. 5 Q. And did you get a pretty quick response to the 6 "that made no sense" text? 7 A. Yes. 8 Q. And what did he say in response? 9 A. It said, "Basically, I had talked to Smith 10 yesterday about coming in at 11: 30, he said fine, no 11 problem, but I will stop by." 12 Q. Okay. So I want to go through this and break 13 it down and get your interpretation of some of the 14 phrases in this. Okay? 15 A. Okay. 16 Q. "Basically, I talked to Smith yesterday," what 17 does that mean, to you? 18 A. That he would have talked to Smith on the 18th. 19 Q. And Smith being who? 20 A. Lieutenant Smith. 21 Q. And yesterday, meaning the 18th? 22 A. Yes. 23 Q. And talked to him yesterday, the 18th, about 24 what? 25 A. Coming in late at 11: 30. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1138 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 42 1 Q. And Lieutenant Smith said what in response? 2 A. That that was okay, fine, no problem. 3 Q. Put all those things together. What was your 4 interpretation of the totality of that message? 5 A. He had gotten permission from Lieutenant Smith 6 to come in late, but he would still stop by to see me. 7 Q. Your reaction to that? 8 A. Okay. 9 Q. Why was it okay? 10 A. Lieutenant Smith is my boss, too. So whatever 11 he says goes. 12 Q. All right. So if that was, indeed, true, his 13 arriving tardy would have been excused? 14 A. Yes. 15 Q. Okay. 16 A. He wouldn't have been tardy. 17 Q. Okay. Did Mr. Waddell show up for the shift? 18 A. Yes. 19 Q. At about what time? 20 A. Around 11: 30, 11: 35. 21 Q. And did he stop in and see you? 22 A. Yes. 23 Q. In your office? 24 A. Yes. 25 Q. Did he seek you out or you seek him out? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1139 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 43 1 A. Well, I had told him to stop by and see me. 2 So, I guess, I indicate -- or initiated that, him coming 3 to the office. 4 Q. Okay. He came into your office? 5 A. Yes. 6 Q. What was his demeanor? 7 A. Um, he seemed a little -- maybe a little 8 nervous, but not that big of a deal. 9 Q. Who spoke first? You or him? 10 A. He did. 11 Q. What did he say? 12 A. He went on to explain his conversation with 13 Lieutenant Smith the previous day in more detail. 14 Q. And what did he say? 15 A. That he had run into Lieutenant Smith on the 16 18th in locker room as he was preparing to leave for the 17 day, that he told Lieutenant Smith that his daughter had 18 a -- some sort of a dance function, and I can't remember 19 if it was a recital or just the first practice, but it 20 was some sort of a first dance event and he wanted to be 21 able to make that event and asked if it was all right to 22 come in late, and Lieutenant Smith gave him permission. 23 MR. PALMER: If I can have a second? 24 THE HEARING OFFICER: Sure. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1140 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 44 1 BY MR. PALMER: 2 Q. Do you see Exhibit 12? 3 A. Yes. 4 Q. Can you turn to Exhibit 12? 5 A. Okay. 6 Q. Exhibit 12 purports to be a transcript of the 7 interview you had with Lieutenant Bledsoe on November 8 15th. Do you recall some of the substance of that 9 interview? 10 A. Yes. 11 Q. Would you turn to Page 6 of that interview, 12 please? 13 MS. CASTILLO: I didn't get this previously. 14 MR. PALMER: I just had it done. I can tell 15 you I've gone through it. 16 MS. CASTILLO: I don't care if you went through 17 it. 18 THE HEARING OFFICER: Is there a page missing? 19 MS. CASTILLO: It makes no difference to me. 20 BY MR. PALMER: 21 Q. Are you on Page 6? 22 A. Yes. 23 Q. Do you see the large paragraph up there toward 24 the top? 25 A. I do. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1141 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 45 1 Q. That's your name in front of it? 2 A. Yes. 3 Q. Toward the end of that paragraph, if you key in 4 on the last four lines or last five lines -- 5 A. Okay. 6 Q. -- there's a portion in there that starts with 7 a quote, "hey" -- 8 A. Yes. 9 Q. -- and keeps going. Would you read that to 10 yourself and tell me when you're done? Just stop at the 11 word, "daughters." 12 A. Okay. 13 Q. I would ask you if that's as best you can tell 14 us today and as best you can tell Lieutenant Bledsoe 15 back on November 15th of 2013, a direct quote from 16 Mr. Waddell -- 17 A. Yes. 18 Q. -- in your conversation with him in your office 19 about 11: 30, 11: 35? 20 A. Yes. 21 Q. In this conversation, was it in person? 22 A. This conversation with Mr. Waddell and I? 23 Q. Yes, sir. 24 A. Yes. 25 Q. Just you and he? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1142 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 46 1 A. Correct. 2 Q. Was anybody else around? 3 A. No. 4 Q. And did Mr. Waddell also give you a little bit 5 more context to this conversation with Lieutenant Smith 6 the day before? Did he tell you what time it happened? 7 A. Yes. 8 Q. When? 9 A. When they were dressing out to go home for the 10 night. So Lieutenant Smith, typically, leaves around 11 4:00 or 4:30. So somewhere around that time frame in 12 the afternoon. 13 Q. And they were both located where? 14 A. In the men's locker room in the police 15 department. 16 Q. Okay. So connecting the subject matter, your 17 interpretation of the subject matter of the text 18 exchange you had with Mr. Waddell and now your 19 confirming conversation with him, did you believe that 20 he had specific authorization from Lieutenant Smith to 21 be late on October 19th, 2013, and come in at 11: 30 22 instead of 11: 00? 23 A. Yes. 24 Q. Okay. Did something happen shortly thereafter 25 on that same shift to change your thought pattern in Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1143 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 47 1 that regard? 2 A. Yes. 3 Q. What happened? 4 A. Lieutenant Smith saw my missed call and called 5 me back. 6 Q. Okay. I want to get some timing here. We've 7 talked about 11: 00, start of the shift; 11: 11, the text 8 message; 11: 35, you had this confirming conversation 9 with Mr. Waddell. 10 When, about, in this -- those benchmarks did 11 Lieutenant Smith return your call? 12 A. I believe it was 12: 00 to 12: 30. 13 Q. Same shift, October 19th? 14 A. Yes. 15 Q. And how did your conversation with Lieutenant 16 Smith go? What did you say and what did he say? 17 A. He called, I answered the phone, he said what's 18 up, or something to that effect, I told him don't worry 19 about it, it worked itself out, and he said, well, why 20 did you call. So I told him. I said, well, Mr. Waddell 21 was late for that shift and I know you wanted me to talk 22 to him about everything that transpired the previous 23 week, but he was -- he was late, you had already 24 authorized it, so no big deal, I'll have that 25 conversation with him a little bit later on tonight Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1144 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 48 1 about the previous incidents of being late and watching 2 the movie. 3 Q. And how did Lieutenant Smith respond to that 4 information? 5 A. He said he -- he told me he had never had that 6 conversation. 7 Q. What conversation? 8 A. The conversation with Mr. Waddell in the locker 9 room, that that conversation did not exist. 10 Q. Give us your best recollection of how you 11 repeated the substance of your conversation with 12 Mr. Waddell to Lieutenant Smith. 13 A. I told him just that, that Kevin came into the 14 office, told me that he talked to you, being Lieutenant 15 Smith, the night before in the locker room and that he 16 had a dance recital for his daughter, or a dance event 17 for his daughter, and he wanted to attend that. So you, 18 being Lieutenant Smith, authorized him to come in at 19 11: 30. 20 Q. He said he never had that conversation with 21 him? 22 A. Correct. 23 Q. Did Lieutenant Smith say he had any sort of 24 conversation at all the evening before October -- the 25 evening before October 19th, on October 18th, with Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1145 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 49 1 Mr. Waddell? 2 A. Lieutenant Smith said that as soon as he walked 3 into the locker room, Mr. Waddell was doing something on 4 his telephone, texting or something to that effect, and 5 they acknowledged each other were in the room, but there 6 was no conversation of substance. 7 Q. Did you have any other conversation with 8 Lieutenant Smith on that phone call or is that it? 9 A. Yes, I did. 10 Q. What else? 11 A. He asked me to write a memo and to give 12 Officer -- Mr. Waddell a heads-up that there was now an 13 issue and to submit the memo to him the following day. 14 Q. Okay. Did you hang up with Lieutenant Smith? 15 A. I did. 16 Q. Did you have a reaction? 17 A. I did. 18 Q. What was it? 19 A. I was pretty upset. 20 Q. Why? 21 A. I think, from day one in the academy, we were 22 trained that all we have is our word and, to me, whether 23 it was on the standing court or just in my office, 24 Mr. Waddell lied to me and that made me angry. He made 25 something that would have been a supervisor's note, at Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1146 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 50 1 worse, documenting a verbal conversation, had he just 2 been late and owned up to that, he made it into a much 3 more significant issue than it needed to be. 4 Q. What did you do? 5 A. I got on the radio and asked him to come to my 6 office. 7 Q. Did he respond? 8 A. He did. 9 Q. Did he come in your office? 10 A. Yes. 11 Q. How did that meeting go? 12 A. Um, I think, as soon as he got to the doorway, 13 he knew I was upset, was my impression, and he appeared 14 nervous. I told him that I knew he didn't have that 15 conversation with Lieutenant Smith and that Lieutenant 16 Smith would be contacting him in the very near future to 17 determine how to proceed from there. 18 Q. Did you discuss any more details? 19 A. Um, Mr. Waddell started to apologize and 20 started to make excuses for what happened and I cut him 21 off. I said it's best that you not say anything right 22 now, just stop talking. 23 Q. And the reason you shut it down was what? 24 A. Um, I didn't want to say anything that I 25 shouldn't say, I didn't want to elicit any conversation Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1147 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 51 1 I shouldn't have elicited. I realized it was, 2 potentially, going to be punitive at this point. So I 3 kept my mouth shut and told him he should do the same. 4 Q. And did Mr. Waddell return to duty? 5 A. Yes. 6 Q. Did you ever address with him the original 7 reason you wanted to talk to him at the beginning of 8 that shift? 9 A. No. 10 Q. Originally. 11 A. No. 12 Q. Ultimately, did you prepare a memorandum about 13 this event? 14 A. I did. 15 Q. Exhibit 9, please. 16 A. Okay. 17 Q. Do you recognize Exhibit 9? 18 A. I do; although, it's been a while. 19 Q. Take a moment. 20 A. Okay. 21 Q. What is Exhibit 9? 22 A. It's the memorandum I authored at the direction 23 of Lieutenant Smith, outlining what had occurred. 24 Q. And it's dated when? 25 A. October 19th. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1148 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 52 1 Q. Did you prepare this memo that same shift we've 2 been talking about, October 19th? 3 A. Yes. 4 Q. Did you prepare it at a time in which your 5 memory was fresh of the event? 6 A. Yes. 7 Q. And you directed the memo to who? 8 A. Lieutenant Smith. 9 Q. Okay. Give me a moment, please. 10 THE HEARING OFFICER: Sure. 11 THE WITNESS: Can I make a quick correction to 12 something? 13 MR. PALMER: Sure. 14 THE WITNESS: When you asked me when I got 15 promoted, I think I said 2013, and I think it was, 16 actually, 2012. Looking at this memo, I had that year 17 in mind. 18 BY MR. PALMER: 19 Q. What month? 20 A. February. 21 Q. Thank you. 22 A. I'm pretty sure it was the first week of 23 February or the last week of January. I can't remember. 24 THE HEARING OFFICER: Thank you for that. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1149 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 53 1 BY MR. PALMER: 2 Q. Okay. Let me ask this. In the text exchange 3 that you had with Mr. Waddell on October 19th, 2013, 4 roughly, in the 11: 11 hour and minute range, did you 5 interpret any part of that message to mean that the 6 reason Mr. Waddell was late to that shift was because he 7 had had previous conversations with Lieutenant Smith 8 days and weeks ago on other shifts where he'd been 9 allowed to flex his time and he thought he could do that 10 on his own with blanket approval from Lieutenant Smith? 11 MS. CASTILLO: I'm going to object to leading. 12 THE HEARING OFFICER: Well, it's compound, but 13 if the witness understands the question, I think it's 14 fair game. 15 BY MR. PALMER: 16 Q. Do you understand the question? 17 A. Yes. 18 Q. Can you answer it? 19 A. I can. 20 Q. Go ahead. 21 A. Absolutely not. 22 Q. Same question as it relates to the follow-up 23 question you had person-to-person in your office October 24 19th after he came in late at around 11: 35. 25 In any of your exchange with Mr. Waddell during Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1150 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 54 1 that conversation, did you get an interpretation that 2 the reason he was late was because of this couple days, 3 couple weeks prior conversation with Lieutenant Smith 4 that he could do this on his own without needing 5 specific approval? 6 A. No. 7 Q. Prior to October 19th, 2013, had you worked a 8 number of Saturday shifts, day shifts? 9 A. Yes. 10 Q. And that's when the CAT shift typically 11 happened? 12 A. Yes. One of the days. 13 Q. Can you give me a time frame before October 14 19th, 2013, about how long a span of shifts you'd worked 15 on a Saturday? 16 A. I can't remember if -- we rotate, typically, in 17 September. So I would have come from night shift to day 18 shift. So six to eight, roughly. 19 Q. Two to three months? 20 A. About. 21 Q. Okay. Was it your impression that the officers 22 on the CAT shift, whether it be Mr. Waddell or somebody 23 else, even Detective Stahnke, were able to, on their 24 own, flex their time with some -- without any penalty, 25 in other words, come in at 10: 30 and leave at 3:30, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1151 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 55 1 11: 00, leave at 4:30? Is that how the shift operated? 2 A. No. 3 Q. How did it operate instead? 4 A. You worked from 11: 00 in the morning till 4:00 5 in the afternoon, unless you obtained approval 6 beforehand. 7 Q. Was there some importance to the 11: 00 to 4:00 8 range? 9 A. Yes. 10 Q. What was that? 11 A. It was some of our busiest times in the 12 downtown area. It's when a lot of the activity took 13 place that was subject to criticism by business owners 14 and their voice was being made very well-known to the 15 City Council and the city manager. 16 Q. Okay. I want to change gears a little bit with 17 you. 18 A. Okay. 19 Q. Take you back to February 22nd, 2013. 20 A. Okay. 21 Q. Do you recall that date? 22 A. I do. 23 Q. Were you on duty and so employed as a police 24 sergeant with the San Luis Obispo Police Department? 25 A. I was. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1152 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 56 1 Q. And what were your duties that day? 2 A. I was the patrol sergeant. 3 Q. Did a traffic collision occur somewhere in 4 town? 5 A. Yes. 6 Q. Where? 7 A. At the intersection of Orcutt and Johnson. 8 Q. Just to set it up so that we're all on the same 9 page, talking about the same accident, give us a 25 to 10 50-word summary of this accident. 11 A. We were all sent to a major injury collision, a 12 rollover collision. We responded. There was two 13 occupants of a Bentley. One was completely unresponsive 14 and the second -- the driver was -- appeared to be in 15 very bad shape, but she was somewhat responsive. 16 Q. What was the location of this collision? 17 A. The car had pinned an embankment, flipped up, 18 rolled. So when we arrived, it was laying upside down 19 in a small field. 20 Q. What were the -- what was the physical 21 location? What were the cross streets? 22 A. Orcutt and Johnson. 23 THE HEARING OFFICER: Is that Orcutt, 24 O-R- C- U-T- T? 25 THE WITNESS: Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1153 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 57 1 THE HEARING OFFICER: You live here. Sorry. 2 I'm the one who doesn't live here. 3 BY MR. PALMER: 4 Q. What kind of car was it? 5 A. A Bentley. 6 Q. Were there a lot of SLO -- San Luis Obispo 7 Police Department personnel present at the scene? 8 A. Eventually, there was, yes. 9 Q. Why do you say, "eventually"? 10 A. At first, there was me and one other officer 11 that responded initially, just because we were the first 12 ones to arrive, and then we needed more and more 13 personnel on scene just for traffic control and fire 14 apparatus and things of that nature. 15 Q. Is there a specialized investigative unit for 16 major traffic accidents at the San Luis Obispo Police 17 Department? 18 A. Yes. 19 Q. Is that team called anything? 20 A. It's our traffic call-out team. Major injury 21 collision team. 22 Q. Were they called out? 23 A. Yes. Eventually. 24 Q. And who came from that team? 25 A. Most of the team did, and Mr. Waddell was part Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1154 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 58 1 of that team at the time. 2 Q. So Mr. Waddell arrives at the scene at some 3 point? 4 A. Yes. 5 Q. What time did the accident happen? Do you 6 recall? 7 A. I want to say it was around 2:15, 2:30-ish. 8 Q. A.M.? P.M.? 9 A. A.M. 10 Q. And do you know about what time Mr. Waddell 11 arrived? 12 A. Shortly thereafter. He was working on his bike 13 downtown. So he responded back to the police department 14 and got some equipment and came out to the scene with 15 us. 16 Q. What was your role at the scene, if you had 17 any? 18 A. Basic scene supervision, calling for resources, 19 and, at some point, after we determined that we felt it 20 might be a fatal collision -- fire initially thought the 21 male passenger was deceased in the vehicle. That was 22 later unfounded. He was alive, but, at the time, we 23 thought he was deceased. So we called out the collision 24 team, thinking that we may have some sort of a 25 manslaughter case on the driver because alcohol was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1155 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 59 1 obviously involved at that time. 2 Q. Did you leave the scene at some point? 3 A. I did leave the scene. 4 Q. For what? 5 A. I responded to the hospital with Officer 6 Trainer, who was the primary officer, and all our other 7 resources were tied up. So I went to the hospital with 8 him to assist in the blood draw and gathering evidence 9 from the female driver. 10 Q. Did you return to the scene at some point? 11 A. Yes. 12 Q. Do you remember about what time? 13 A. It was around -- it was much later. 4:30, 5:00 14 in the morning. 15 Q. What was going on in terms of the scene and the 16 investigation when you came back to the scene? 17 A. They were wrapping up their -- 18 MS. CASTILLO: I'm sorry. I didn't hear the 19 time. 20 THE HEARING OFFICER: 4:30 to 5:00 a.m.? Why 21 don't you clarify that for us. 22 MR. PALMER: I think I misspoke. 23 MS. CASTILLO: So what is the time? 24 THE WITNESS: I believe it was around 4:00 to 25 5:00 in the morning. I don't, specifically, recall the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1156 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 60 1 time. 2 BY MR. PALMER: 3 Q. Let me state the question again. 4 What was going on in terms of the investigation 5 and the scene when you arrived back from the hospital 6 between 4:00 and 5:00 a.m.? 7 A. Correct. 8 Q. Okay. 9 A. Give or take. All the fire personnel had 10 cleared. It was just our traffic call-out team that was 11 still there. They had finished the majority of their 12 investigation. They were picking up equipment. The tow 13 truck was back on scene, or was on scene now, to begin 14 with, and was preparing to remove the vehicle from the 15 yard that it had landed in. 16 Q. Was the Bentley still inverted or was it on its 17 wheels now? 18 A. It was still upside down. 19 Q. Was Mr. Waddell still there? 20 A. Yes. 21 Q. What was his role? 22 A. He was picking up equipment, initially, when I 23 responded back. 24 Q. Was there any strange or odd interaction 25 between you and some of the officers on the scene even Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1157 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 61 1 when you first arrived or when you arrived back from the 2 hospital? 3 A. Yes. 4 Q. What was that? 5 A. I had only been promoted for a few weeks at 6 this point. So prior to that, I was working a day shift 7 assignment. So I was around all of these officers on a 8 very regular basis. Since I had been promoted, I was 9 immediately sent to night watch and this was the first 10 time that I had interacted with most of them since my 11 promotion. 12 So when I arrived, everyone was saluting and 13 standing at attention and, sir, yes, sir, and Sergeant 14 Pfarr is here, and all that kind of -- a little bit of 15 ribbing, if you would. 16 Q. Did you get a quick briefing from one of the 17 officers on the scene? 18 A. Yes. 19 Q. Who was that? 20 A. Officer Kevany. 21 Q. What did she tell you? 22 A. She was giving me their findings, showing me 23 skid marks, gouges in the road, how she thought the 24 vehicle had ended up upside down and spun. 25 Q. At some point, did the tow truck operator ride Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1158 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 62 1 the car? 2 A. Yes. 3 Q. Now, while this was going on, did you see 4 Mr. Waddell doing something unusual? 5 A. I did. 6 Q. What? 7 A. He was -- at the time, I didn't really think it 8 was too unusual, now I know it was unusual, but he was 9 messing with the Bentley emblem on the trunk lid of the 10 car. 11 Q. When you say, "messing," what do you mean? 12 A. He was doing something to it. It appeared he 13 was -- I wasn't sure if he was taking evidence off of it 14 or trying to remove the whole emblem, but he was 15 manipulating his hands around the emblem. 16 Q. The emblem on what part of the car? 17 A. The trunk, the lid. 18 Q. You didn't know what he was doing? 19 A. No. 20 Q. Did you think there might have been an 21 evidentiary reason at some point for that? 22 A. I didn't really think of it. Never really 23 entered my mind. 24 Q. Did you continue to watch him? 25 A. I continued to get the walk-through with Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1159 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 63 1 Officer Kevany. 2 Q. And did Mr. Waddell, at some point, stop doing 3 whatever he was doing with the trunk emblem, the emblem 4 on the trunk, and start doing something else? 5 A. Yes. 6 Q. What? 7 A. He went over to the tow truck and asked the tow 8 truck driver if he had a screwdriver or something to 9 that effect so he could get the emblem off. 10 Q. And did Mr. Waddell change his position or 11 change his location? 12 A. Yes. He walked from where the Bentley was 13 resting upside down -- I can't remember if it was upside 14 down or if it was flipped by that time, but he left the 15 car and started walking over to the tow truck 20 feet 16 away, or so. 17 Q. Did you watch him or were you kind of 18 distracted at this time? 19 A. My attention was mostly on the car and 20 listening to Officer Kevany, but he was in front of 21 where we were standing and he was near the car and 22 that's where she was showing me. So I, obviously, saw 23 what he was doing. 24 Q. About how far away from you was Mr. Waddell? 25 A. 30 feet. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1160 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 64 1 THE HEARING OFFICER: The officer you were 2 with, what's the spelling of her name? Do you know? 3 THE WITNESS: K- E- V- A-N-Y. 4 THE HEARING OFFICER: Kevany. 5 THE WITNESS: Yeah. It's not E- Y, is it? No. 6 BY MR. PALMER: 7 Q. So Mr. Waddell went over to the tow truck 8 driver? 9 A. Yes. 10 Q. What did you see him do, if anything? 11 A. They worked around the side of the tow truck 12 for a minute where they keep their tools and equipment 13 and then he began walking back towards the Bentley from 14 the tow truck by himself. 15 Q. Did Mr. Waddell have anything in his hands? 16 A. He did. 17 Q. Do you know what it was? 18 A. It was some sort of a tool. It think it was a 19 screwdriver, but it could have been a pry bar or 20 something. 21 Q. So he leaves the presence of the tow truck 22 driver and tow truck and where does he go? 23 A. Back over to the trunk deck of the Bentley. 24 Q. Did you continue to watch him? 25 A. I did. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1161 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 65 1 Q. What did he do? 2 A. He pried off the back emblem. 3 Q. What do you mean, pried off the back emblem? 4 A. Well, I didn't really see him do that. I saw 5 him walk back over to the Bentley. The emblem was 6 there, and then when he moved, his back was in between 7 me and the emblem. So he was blocking it, but he 8 used -- I surmised he used whatever tool he had and 9 removed the emblem from the trunk of the car. 10 Q. Did you see him come away from the trunk with 11 something in his hand? 12 A. There was something in his hand. I don't know 13 if I saw the tool or the emblem, but the emblem wasn't 14 on the car anymore. 15 Q. Okay. Can you go to Exhibit 11, please? 16 A. Yes. 17 Q. Now, Exhibit 11 is a series of pictures, and on 18 the same page, I'd like to ask that the first picture 19 past Tab 11 be marked with an A. So it would be 11-A. 20 THE HEARING OFFICER: Okay. 21 MR. PALMER: The second picture would be 11-B 22 THE HEARING OFFICER: All right. 23 MR. PALMER: The third picture, 11-C, and, at 24 least, at this point, that's where I'm going to ask 25 Sergeant Pfarr to stop. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1162 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 66 1 THE HEARING OFFICER: That's the one that says 2 rear emblem? 3 MR. PALMER: Correct. 4 THE HEARING OFFICER: Okay. 5 BY MR. PALMER: 6 Q. Are you at 11-C, Sergeant Pfarr? 7 A. Yes. 8 Q. Do you recognize what is depicted in Photograph 9 11-C? 10 A. Yes. 11 Q. What is it? 12 A. It's the Bentley. It's upside down. It's 13 still resting on its roof. The brake lights are on -- 14 MS. CASTILLO: I think we're going to have to 15 make an objection, though, because I don't think we've 16 been provided any of these. 17 MR. PALMER: They should have been in the 18 Skelly package. 19 MS. CASTILLO: That's what should have been 20 provided in the Skelly package. You're right. 21 THE HEARING OFFICER: Your objection is that 22 these weren't in Skelly? 23 MS. CASTILLO: Or anywhere else, ever, ever. 24 THE HEARING OFFICER: Okay. I'm going to hold 25 my ruling in abeyance on this. I want to hear the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1163 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 67 1 testimony about it. If there's a Skelly objection, 2 that's, really, objection that goes to the lobby 3 complied with. So my guess is it's going to wind up 4 letting it in, but if it, obviously, wasn't in the 5 Skelly package, that could be an issue. 6 MS. CASTILLO: And that's fine. The more on 7 the record, the better. 8 THE HEARING OFFICER: Go ahead. 9 BY MR. PALMER: 10 Q. Do you recognize 11-C? 11 A. Yes. 12 Q. Now, is the Bentley on its roof still? 13 A. It is. 14 Q. Do you know when this picture was taken? 15 A. Before -- obviously, after the collision, but 16 before it was rided by the tow truck driver. 17 Q. Okay. Do you see the Bentley emblem depicted 18 in 11-C? 19 A. Yes. 20 Q. Is that the Bentley emblem you've been 21 describing as watching Mr. Waddell manipulate? 22 A. Yes. 23 Q. I want to -- I want to put some of these events 24 together. Okay? 25 A. Okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1164 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 68 1 Q. And talk about them as a whole. I'm going to 2 remind you of your testimony that you saw Mr. Waddell 3 manipulating, with his hands, in some way, the rear 4 emblem -- the rear Bentley emblem on the vehicle, then 5 he asked for a screwdriver, walks to the tow truck, has 6 some interaction with the tow truck driver and he walks 7 back and goes back to the trunk, the Bentley emblem. 8 You've got that space of time in mind connected 9 together? 10 A. Yes. 11 Q. Did you hear Mr. Waddell say anything else 12 other than I want a screwdriver? Did he proclaim 13 anything else while he was making these movements? 14 A. He did. 15 Q. What? 16 A. That this emblem would go well with his 17 collection. 18 Q. Did you know what he meant by that? 19 A. No. 20 Q. This emblem will go well with my collection? 21 A. Yes. 22 Q. That's what you heard him say? 23 A. Yes. 24 Q. What was in your thought? How were you 25 interpreting that in your mind? What was going through Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1165 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 69 1 your head? 2 A. Confusion, not sure what he was talking about. 3 Obviously, now, it's not part of a -- the traffic 4 investigation, it's not evidence, it's something else. 5 Based on the first set of, sir, yes, sirs, and Sergeant 6 Pfarr is here, I kind of thought he was joking and 7 trying to see how I would respond. I don't believe that 8 now, but that's what I was thinking at the time. 9 Q. So did you decide to do something? 10 A. I did. 11 Q. What? 12 A. I made a comment that Serg is leaving now, 13 don't want to be any part of the IA, I'm out of here, 14 and go back to my car. 15 Q. Give me those things separately again. Serg is 16 leaving now? 17 A. Yep. 18 Q. And then what? 19 A. Don't want to be any part of this, don't want 20 to be in the IA. 21 Q. What do you mean by that? 22 A. The administrative investigation, that I didn't 23 think would ever follow pending the activities like this 24 at the scene of a traffic accident. 25 Q. Do you have knowledge now that you probably Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1166 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 70 1 should have done something different about that? 2 A. Absolutely. 3 Q. What should you have done? 4 A. Call Lieutenant Smith right then. 5 Q. But what did you do? You left? 6 A. I did. 7 Q. I assume, you walked to your car and got in 8 your car and that took some time? 9 A. Yes. 10 Q. Did you continue to watch Mr. Waddell? 11 A. I did. 12 Q. What did he do? 13 A. He went over to the wheel, the back wheel. I 14 believe it was the rear wheel, but I can't really 15 remember because the car was rided and spun around so 16 the tow truck driver could get it on the deck of the tow 17 truck. So I really don't recall what side it was, but 18 it was facing Johnson towards downtown. He went up to 19 the wheel and popped off the hubcap, the lug nut cover 20 from the Bentley. 21 Q. Okay. Are you still on 11-C? 22 A. Yes. 23 Q. The next picture right after C, I'd like to 24 submark D. Appears to be a side-view picture viewpoint 25 of the Bentley. Do you see that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1167 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 71 1 A. Yes. 2 Q. Do you see the hubcaps or the wheel hub spindle 3 covers that you're referring to? 4 A. I do. 5 Q. Where are they? 6 A. On the wheels. 7 Q. Right center point of the wheel? 8 A. Correct. 9 Q. Each of them have a white B on them? 10 A. They do. 11 Q. Is that the insignia you saw him prying off? 12 A. Yes. 13 Q. Was he able to get those off? 14 A. Yes. 15 Q. At least, one of them off? 16 A. One of them, yes. 17 Q. How are you seeing this? Are you watching it 18 directly or how are you seeing it? 19 A. In my rearview mirror as I'm driving northbound 20 on Johnson Avenue. 21 Q. Okay. Does he move away from the wheel? 22 A. Yes. 23 Q. Where does he go? 24 A. He started walking towards the -- what we call 25 the FST truck. It's our field service technician Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1168 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 72 1 vehicle. It's just a pickup truck that, typically, is 2 used to haul out their equipment on calls such as this. 3 Q. Did you see him have anything in his hands? 4 A. Yes. 5 Q. What? 6 A. A brown evidence bag. 7 Q. Do you know what was in the bag? 8 A. I believe it was the emblem and -- the two 9 emblems. 10 Q. He was going toward the FST truck? 11 A. Correct. 12 Q. And what did you decide to do at that point? 13 A. Um, I didn't really know at that point. I was 14 pretty irritated, upset that he put me in that position, 15 not sure if it was still a joke, or what. I wanted to 16 believe it was a joke, but I drove north on Johnson for 17 a bit as I was trying to figure out what I was going to 18 do, if I wanted to go back and deal with it in front of 19 everybody or call him to the office, and, ultimately, I 20 decided just to call him on my cell phone and make sure 21 this was -- the action was not going to go on any 22 further. 23 Q. Did you call him? 24 A. I did. 25 Q. Did something happen to interrupt that call? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1169 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 73 1 A. At some point, there was a text message that 2 came through from Mr. Waddell and it was a photograph of 3 the emblems and they were on the floorboard of the 4 Bentley and there was an accompanying text message that, 5 basically, said he was sorry, he put them back. 6 Q. And the photograph had proof thereof? 7 A. Correct. 8 Q. Did you complete the phone call, nevertheless? 9 A. I did. 10 Q. And did you have a conversation with 11 Mr. Waddell? 12 A. Yes. 13 Q. What did you tell him? What did he say to you? 14 A. Told him to come back to the office and see me 15 as soon as he cleared the scene. And I already knew 16 that the parts were back in the car. So I didn't tell 17 him to do that, but that was the intent of the call. 18 Q. Did he say anything to you? 19 A. He said he had put them back and that he would 20 come see me. 21 Q. And did he come see you later on? 22 A. Yes. 23 Q. How long did it take? 24 A. Maybe 15 to 20 minutes. Not long. It was 25 about ten minutes before they cleared the scene and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1170 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 74 1 however it takes to drive the route from Johnson to the 2 police department. 3 Q. And where were you when he came to see you? 4 A. In the sergeant's office. 5 Q. Just you and he? 6 A. Correct. 7 Q. What was your demeanor? 8 A. I was upset with him. 9 Q. Why? 10 A. We had been partners on the S.W.A.T. team, we 11 had spent a lot of time together and for him to put me 12 in a position like that in front of other officers, but 13 more importantly, in front of a tow truck driver that is 14 a civilian and doesn't get how that could have been 15 interpreted, it made me angry that he would cause me to 16 be in that situation and have to deal with that 17 situation. 18 Q. What was Mr. Waddell's demeanor? 19 A. He apologized, said he took it too far, he was 20 just messing around, just joking, that sort of thing, 21 said -- he admitted that he shouldn't have done it and 22 reiterated that he put the car parts back. He also said 23 that he had talked to the tow truck driver and told the 24 tow truck driver it was just a joke and they were just 25 messing with the new sergeant. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1171 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 75 1 Q. Did you continue to talk to him about the 2 event? 3 A. Yes. 4 Q. Did you bring in your concern about what the 5 tow truck driver might have thought of witnessing this? 6 A. I did. 7 Q. In what context? 8 A. This was a pretty sensitive time for the police 9 department, I would say. We had just had an 10 investigator that was arrested and indicted on federal 11 charges for theft and robbery and all kinds of bad 12 things. So I brought that up, that, hey, we've got -- 13 his first name was Cory, and the department and Cory is, 14 obviously, in the media spotlight right now and the last 15 thing we need is another incident. If this tow truck 16 driver was to get arrested for DUI or he decided he 17 wanted to make a couple of bucks by contacting one of 18 our local rag newspapers, this could not look good for 19 the department, and that was another big concern and 20 something I brought up to him that night. 21 Q. Did he appear to understand that? 22 A. Yes. 23 Q. Did he appear remorseful? 24 A. Yeah. 25 Q. Did you have some options to pursue at the end Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1172 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 76 1 of that conversation? 2 A. I did. 3 Q. Could you have written a memo to your 4 lieutenant and made this thing formal? 5 A. Yes. 6 Q. Looking back on it now, should you have done 7 that? 8 A. Absolutely. 9 Q. Did you do that? 10 A. No. 11 Q. What did you do instead? 12 A. Just let it go. I thought he got the intended 13 message and hoped that it really, truly was just a joke 14 and decided to let it go with that. 15 Q. Was part of that decision-making based upon the 16 fact that you were a relatively new sergeant? 17 A. Yes. 18 Q. Did you continue to work with Mr. Waddell? 19 A. I did. 20 Q. And did you continue to gain experiences of 21 sergeant of police? 22 A. Yes. 23 Q. Did you note this discussion you had with him 24 after the Bentley event in any written record, at all? 25 A. None. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1173 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 77 1 Q. Did you memorialize it in any memo just for 2 yourself? 3 A. No. 4 Q. Did you place a notation of it, in any way, in 5 any file used for personnel purposes related to 6 Mr. Waddell? 7 A. No. 8 Q. Did you inform your lieutenant of it? 9 A. Not at that time, no. 10 Q. Okay. At some point -- strike that. 11 After having the discussion that you had with 12 Mr. Waddell, did you also speak to Officer Kevany? 13 A. I did. 14 Q. What was the purpose of you doing so? 15 A. Just to let her know that I had spoken to him 16 about it, Mr. Waddell, and to let her know that it was 17 not something I was going to allow to go on on the 18 shift. She'd already had the message. I didn't need to 19 repeat it to her. So it was a fairly short 20 conversation. 21 Q. Okay. And you didn't advise your Lieutenant 22 Smith about any of this event -- 23 A. No. 24 Q. -- at that time? 25 A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1174 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 78 1 Q. Do you agree you should have done that now? 2 A. Yes. 3 Q. Now, did this event -- the Bentley event, in 4 terms of your knowledge of it, Mr. Waddell's knowledge 5 of it and anybody else who was at the scene, obviously, 6 did this information lay dormant for some time in your 7 mind? 8 A. Yes. 9 Q. And at some point, did that change? 10 A. Yes. 11 Q. What happened to change it? 12 A. We had openings in our narcotics investigator 13 position. That's a task force type position that's 14 located at our sheriff's department and we also had 15 three of our in-house investigator positions become 16 available. Mr. Waddell had put in a memorandum of 17 interest for all four of those positions and I became 18 concerned that he might be given one of those positions. 19 Q. Okay. What time frame are we talking now? 20 A. This would have been September, October. The 21 positions became available in January. So it was 22 months, months later. 23 Q. Are we still in 2013? 24 A. Yes. 25 Q. So if the traffic accident occurred on February Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1175 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 79 1 22nd, 2013, these promotional positions became open in 2 September, October of 2013, roughly, six, seven, eight 3 months later, your recollection? 4 A. Correct. 5 Q. And can you explain to the hearing officer 6 what, in your mind, concerns you? Why did the event, 7 the Bentley event, suddenly not be dormant when you 8 found out that Mr. Waddell was putting in for these 9 positions? 10 A. We have a position that is not supervised at 11 the level you are in a patrol position. You're given a 12 lot of free reign. There's a lot of judgment calls that 13 have to be made in those positions. I've worked both of 14 those positions and the level of responsibility placed 15 on people assigned to those is tremendous, and if 16 somebody doesn't have the right character or tends to 17 make bad decisions, then that can go very badly for the 18 department. So that was concerning to me. 19 Q. As you gained experience as a sergeant, did you 20 continue to think about the Bentley event in your mind? 21 A. I did. 22 Q. Were you still conflicted by it? 23 A. Yes, somewhat. 24 Q. Can you explain? 25 A. I think I wanted it to be a joke that went a Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1176 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 80 1 little too far I think because I became a little less 2 naive. It started dawning on me that this might not 3 have been a joke and he might have been stealing those 4 parts, coupled that with all the things that I had 5 learned about Cory, or Officer Pierce, who is now in 6 federal custody, and I was very close with. There was a 7 lot of things that he did that I didn't see at the time 8 that I thought, holy cow, how did I miss this. So it 9 caused me to think that, perhaps, now, I was missing 10 something with Mr. Waddell, also. 11 Q. So what did you decide to do? 12 A. I went back and talked to Lieutenant Bledsoe 13 and Lieutenant Smith separately, but to give them -- lay 14 out what had happened. 15 Q. Okay. Who did you talk to first? 16 A. Lieutenant Bledsoe. 17 Q. Why did you go to him first? 18 A. He is the detective lieutenant and he would be 19 the direct supervisor for all of these positions. We 20 had a staff meeting that was coming up shortly 21 thereafter. I wasn't going to be present. So I wanted 22 to make sure Lieutenant Bledsoe had this information 23 prior to that meeting where a decision would be made who 24 should be assigned to those investigative positions. 25 Q. Okay. And what information did you share with Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1177 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 81 1 Lieutenant Bledsoe? 2 A. Everything about the traffic accident and the 3 parts being stolen, or that incident, not necessarily 4 being stolen. 5 Q. Basically, the same stuff you testified to here 6 today? 7 A. Correct. 8 Q. And how did Lieutenant Bledsoe react to that? 9 A. He thanked me for the information and said he 10 would take it under submission and use that in part of 11 his determination as to who should be selected. 12 Q. Did he also tell you you had to report to 13 somebody else? 14 A. Lieutenant Smith. 15 Q. And did you? 16 A. Yes. 17 Q. That same day? 18 A. Immediately following. 19 MR. PALMER: No further questions. 20 THE HEARING OFFICER: Did you want to move the 21 admission of any of these exhibits the witness 22 discussed, 9, 10, 11, 12? 23 MR. PALMER: Yes, I do. 24 THE HEARING OFFICER: Any objections? I think 25 we're going to take up the one on Skelly, but how about Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1178 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 82 1 as to Department 9? It's a memo to Lieutenant Smith 2 from Sergeant Pfarr. 3 MS. CASTILLO: That one is fine. What were the 4 other ones? 5 THE HEARING OFFICER: Okay. 9 is admitted. 6 Then there's 10. That's a text message from Kevin 7 Waddell. 8 MS. CASTILLO: 10 is fine. 9 MR. PALMER: We can hold off on 11. I'll 10 withdraw my motion on 11 at this point. 11 THE HEARING OFFICER: Okay. So 9 is admitted, 12 10 is admitted without objection. We had 12, which is a 13 transcript of the interview of Sergeant Pfarr by 14 Lieutenant Bledsoe. 15 MS. CASTILLO: You know, I have certified 16 transcripts. So I don't know that he authenticated 17 this. I know you listened to it. 18 MR. PALMER: You know how this happens. You 19 and I both do transcripts, then we -- 20 MS. CASTILLO: Well, I don't do transcripts. I 21 have court reporters. 22 MR. PALMER: Well, I went through them, each 23 recording, and they're materially verbatim. If you want 24 to go check my mine later and agree to them or you want 25 to use yours -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1179 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 83 1 MS. CASTILLO: Well, yeah. I can do that. 2 MR. PALMER: Doesn't matter to me. 3 THE HEARING OFFICER: Well, all I'm asking 4 about is the admission of this one. I can have two 5 transcripts admitted, we can stipulate to one. 6 MS. CASTILLO: We can do that. 7 THE HEARING OFFICER: I'm sorry? 8 MS. CASTILLO: That would be okay if he wants 9 to do that. 10 MR. PALMER: That's fine. 11 THE HEARING OFFICER: So we'll admit 12, and if 12 we have a certified one that comes in, as well, we'll 13 have that one, too. Very good. 14 So you're withdrawing 11 for the time being? 15 MR. PALMER: I'm withdrawing my motion to admit 16 11. 17 THE HEARING OFFICER: Okay. Fine. Very good. 18 Did you want a minute? 19 MS. CASTILLO: Yeah. 20 THE HEARING OFFICER: Why don't we take five. 21 (Recess.) 22 THE HEARING OFFICER: We are back on the record 23 and ready for the cross of Sergeant Pfarr. You may 24 proceed. 25 MS. CASTILLO: Thank you. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1180 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 84 1 CROSS-EXAMINATION 2 BY MS. CASTILLO: 3 Q. Hi. 4 A. How are you doing? 5 Q. Good. How are you? 6 A. Good. 7 Q. Welcome back from your trip, I guess. 8 A. Yeah. Thank you. 9 Q. Okay. So 15 years at San Luis Obispo P.D.? 10 A. Correct. 11 Q. Nowhere else? 12 A. Six months with Monterey County Sheriffs. 13 Q. Okay. What kind of assignments have you had? 14 A. Assignments have I had? 15 Q. Yes. 16 A. I worked as a jailer in Monterey County before 17 I came to San Luis Obispo. At San Luis, I started in 18 patrol, obviously. I worked as a crime scene 19 investigator and then a narcotics investigator and a 20 crimes against persons investigator. I'm on the 21 S.W.A.T. team, and most recently, I was promoted to 22 sergeant. 23 Q. Okay. And how long were you a crime scene 24 investigator for? 25 A. About almost three years. I went over what I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1181 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 85 1 was supposed to. 2 Q. Okay. And that was in the capacity as a sworn 3 peace officer? 4 A. Yes. It's a collateral assignment as a patrol 5 officer. 6 Q. Okay. And you take photographs and do all that 7 kind of investigation? 8 A. Yes. 9 Q. Like we see on TV? 10 A. Not like on TV, but evidence collection. 11 Q. Evidence collection? 12 A. Yes. 13 Q. And was that in-house training or did you go to 14 an academy for that? 15 A. There's a 40-hour school that I went to. 16 Q. Were you the only crime scene investigator for 17 San Luis Obispo P.D.? 18 A. No. We, typically, have four at any given 19 time. It's a four-person assignment. 20 Q. And, approximately, what year period did you 21 hold this assignment? 22 A. I'd say around 2003, 2002 is when I started. 23 Q. And have you held these duties since then? 24 A. No. So crime scene investigator was -- at the 25 time, it was a two-year assignment. I went over time. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1182 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 86 1 There was nobody else that had put in. So I continued 2 for almost three years, and then that assignment ends. 3 You just become a patrol officer again and those duties 4 get handed off to somebody else. 5 Q. Okay. And then you said a narcotics 6 investigator in the capacity as a detective? 7 A. Yes. 8 Q. Okay. And how long did you do that for? 9 A. Just shy of three years. 10 Q. Okay. And you're currently on S.W.A.T., you 11 said? 12 A. Correct. 13 Q. Okay. And then you said crimes against 14 persons, correct? 15 A. Yes. 16 Q. And how long in that assignment? 17 A. Four years. 18 Q. And, I assume, that in those capacities as a 19 narcotics detective and crimes against persons 20 detective, you would have testified in court numerous 21 times, right? 22 A. Yes. 23 Q. And then, of course, in patrol and as a 24 sergeant, too, right? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1183 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 87 1 Q. And I also assume that during those 2 assignments, you would have written multiple reports, 3 correct? 4 A. Lots of reports. 5 Q. When we say lots, we really mean hundreds, 6 right? 7 A. Yeah. I've written hundreds of reports. 8 Q. 15 years. So you would agree, right? 9 A. Yes, definitely hundreds. If not, more. 10 Q. More than hundreds? Thousands? 11 A. A whole lot of reports. I don't know how many. 12 I couldn't even begin to guess at how many. 13 Q. Expert at documentation? 14 A. Yes. 15 Q. Now, you said you were promoted in February 16 2013 and then you corrected yourself and said you were 17 really promoted in January of 2012. Do you know when 18 you were -- 19 A. It was the beginning of -- 20 Q. Do you know when you were actually promoted? 21 A. I don't have a specific date for you. It was 22 the beginning of 2012. I was appointed. I actually 23 worked as a sergeant for several weeks before I was 24 sworn in as a sergeant. So the dates I don't have off 25 the top of my head. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1184 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 88 1 Q. So it's January or February of 2012? 2 A. Correct. 3 Q. Okay. And when did the downtown bike unit 4 overtime assignment position become formalized, the CAT? 5 A. The CAT team? 6 Q. Correct. 7 A. I don't recall when they -- they've been in 8 operation with the two full-time officers for about a 9 year and a half now, I believe. I don't have the 10 specific dates, but prior to that. So about a year 11 prior to that. So two and a half years ago now is when 12 the overtime was really going pretty strong. 13 Q. Okay. So it's 2015. 14 A. Correct. 15 Q. And we're in the month of June. So CAT was 16 formalized a year and a half ago? Is that what you're 17 saying? 18 A. The two officers that were brought on to deal 19 with the specific problems I testified to earlier, they 20 have been working in that full-time capacity for about a 21 year and a half. 22 Q. Okay. So there are now two officers assigned 23 that's no longer a sign-up position? Is that what 24 you're saying? 25 A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1185 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 89 1 Q. Okay. So it's actually an assigned position 2 now? 3 A. It's a special assignment now, correct, yes. 4 Q. Okay. Previous to that, it was a sign-up 5 position, right? 6 A. Correct. 7 Q. And when was it a sign-up position? 8 A. I think we used it as a -- in the capacity 9 as -- it was filled as an overtime assignment for a 10 year, or so, year and a half prior to that, roughly. I 11 don't know specific dates. 12 Q. Okay. Were you the supervisor? 13 A. Yeah. For some of it. 14 Q. It's only on the weekends, right? 15 A. No. It was spread throughout the week. 16 Primarily, on the weekends, but it did occur during the 17 weeks, also. 18 Q. Okay. So is it an everyday assignment? 19 A. No. 20 Q. So it's sometimes during the week, sometimes on 21 the weekend, but it's not an everyday assignment? 22 A. Correct. It was, primarily, on the weekend, 23 but if there was events going on during the week or 24 complaints had come in, it would -- they would work it 25 on other days of the week, as well. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1186 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 90 1 Q. Okay. So if there's an event, then we can call 2 people in? 3 A. Yes. 4 Q. So is it a call-in overtime? 5 A. It would work as both. 6 Q. Okay. So it could be a predetermined overtime? 7 A. Yes. 8 Q. Okay. And then it could be a 9 I'm-going-to-call-you-in overtime spot? 10 A. So if it was something like that, it would be 11 the sergeant the day before or Lieutenant Smith would 12 call. We have a list. If you're able to work overtime 13 on specific days, we usually do it a month in advance, 14 put your name on the overtime list. 15 So on specific days that didn't have officers 16 signed up or we didn't schedule officers beforehand, 17 some when they call officers the day before and say, 18 hey, are you available to work. 19 Q. What about the day of? 20 A. Sometimes. 21 Q. So there's, really, no -- I mean, this is a 22 very flexible day of, sometimes ahead of time, sometimes 23 day before, sometimes a month in advance, before it gets 24 formalized -- 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1187 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 91 1 Q. -- to do a two-officer? 2 A. No. Typically, it's on the weekends and it 3 would be up to two officers, depending on whether or not 4 we had officers available. Other times, when nobody 5 would sign up for it, if there was some communication 6 from City Hall or the city manager's office to Captain 7 Staley's office, that would trickle down to Lieutenant 8 Smith and they would say sometimes, hey, it's Monday, 9 businesses are noticing an increase, can we get some 10 officers out there. 11 So sometime before that, if nobody had signed 12 up, they would make a phone call and try to get officers 13 in to work that assignment. 14 Q. So is this position driven by the police 15 department or the citizens of San Luis Obispo? 16 A. Both. 17 Q. Okay. And you would agree with me that 18 overtime is a privilege, not a right? 19 A. Well, that could be interpreted differently. I 20 guess, I'm not sure what you're asking. 21 Q. Well, is everyone entitled to overtime just by 22 sake of saying I want to work overtime? 23 A. No, they are not. 24 Q. But if they are held over, they are entitled to 25 overtime pay, correct? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1188 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 92 1 A. Yes. 2 Q. So that is how we're interpreting what I'm 3 saying, correct? 4 A. Uh, I'm not sure where you're -- what you're 5 trying to ask, but, yes, if people are held over at the 6 end of their shift, they're entitled to overtime, 7 correct. 8 Q. So you're entitled to overtime pay, not 9 entitled to overtime shifts; is that right? 10 A. Correct. 11 Q. Okay. And how long did you supervise CAT? 12 A. I never formally supervised CAT. I would 13 indirectly supervise them on the days I was working when 14 there was a shift set up by Lieutenant Smith, but that 15 program was, primarily, overseen and supervised by 16 Lieutenant Smith. 17 Q. Okay. You never formally supervised, but you 18 indirectly supervised. And this is where we were 19 hearing about functional supervision? 20 A. Correct. 21 Q. Is that a term in your manual, police manual? 22 A. I don't -- we have policies and procedures. I 23 don't know if that's a -- it's a term I've heard plenty 24 of times before, but it's not something we use at the 25 police department on a regular basis. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1189 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 93 1 Q. Is that your term? 2 A. No. 3 Q. Whose term is functional supervision? 4 A. I believe it was the city's. 5 Q. Oh, okay. 6 MR. PALMER: Can the record reflect he was 7 pointing at me? 8 THE HEARING OFFICER: Okay. Let it so reflect. 9 MR. PALMER: Thank you. 10 THE HEARING OFFICER: It's not the first time 11 somebody's pointed at you. 12 MR. PALMER: Less aggressive means, though. 13 BY MS. CASTILLO: 14 Q. So when you say that Lieutenant Smith was the 15 direct supervisor and you were the functional 16 supervisor, can you describe the difference? 17 A. Lieutenant Smith would choose which days those 18 shifts were available and who would staff them. He was, 19 typically, here and supervised them directly, gave them 20 assignments, problem areas to go and work on, if you 21 would, but in the event Lieutenant Smith was gone, 22 particularly on Saturdays, that would be whoever the day 23 watch sergeant was. 24 Q. When you say, " problem areas," you mean target 25 areas in the city? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1190 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 94 1 A. Correct. 2 Q. And then so because you said some of these days 3 were during the week, the majority of the time the CAT 4 team or -- is it CAT team? 5 A. Yes. 6 Q. Okay. CAT team was supervised by Lieutenant 7 Smith, correct? 8 A. Yes. 9 Q. And so the time that any other individual 10 supervised this CAT team would be the weekends when 11 whoever was the watch planner was around because he was 12 off because it was a weekend and he's the lieutenant, 13 right? 14 A. There was a lot of he's in there, but I think 15 what you're saying is, the sergeant would supervise CAT 16 when Lieutenant Smith was gone on the weekends. 17 Q. If you don't understand my question, make sure 18 you correct me or ask for clarification and I will 19 definitely restate. 20 A. Okay. 21 Q. We're on the same page? 22 A. I think so. I'm not sure. Did you want to -- 23 did I answer that question the way you wanted? 24 Q. Are you going to answer questions the way I 25 want? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1191 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 95 1 A. I don't know. Probably some and probably not 2 on others. 3 THE HEARING OFFICER: I think the -- 4 MS. CASTILLO: If you're offering. 5 THE HEARING OFFICER: The best policy is just 6 to answer her questions as best you can and not worry 7 about where she's going with it -- 8 THE WITNESS: Yes, sir. 9 THE HEARING OFFICER: -- next. 10 BY MS. CASTILLO: 11 Q. Okay. So how long in -- well, at the time of 12 the CAT text issue, had you been sergeant? 13 A. Well, I can look at the dates and do the math 14 for you. I think all the dates are -- I can't tell you 15 off the top of my head how many days or months it was. 16 Q. Well, we're talking about 2012. 17 A. Right. 18 Q. Okay. Nevermind. 19 MR. PALMER: Objection. Misstates. The date 20 of it was 2013. 21 THE WITNESS: Promoted in 2012. 22 MR. PALMER: Okay. 23 THE HEARING OFFICER: Very good. 24 BY MS. CASTILLO: 25 Q. Okay. I'm sorry. My question was bad, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1192 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 96 1 anyways. 2 How long had you been supervising the CAT team? 3 Not how long had you been sergeant. 4 A. In October when the text message took place? 5 Q. Correct. 6 A. Like I said, I think we rotated in August, 7 September, and this was mid-October. So a month and a 8 half to two months. 9 Q. Okay. And during that time, approximately, how 10 many shifts of CAT had you, personally, worked? 11 A. I didn't work CAT. 12 Q. Ever? 13 A. As in prior to me being promoted, did I work 14 that assignment? 15 Q. No. I mean, how many times did you supervise 16 the CAT team? 17 A. Oh. I don't know how many shifts had been 18 filled, but I had six to eight weeks. So I would work 19 three to four days a week. So, potentially, that many 20 times, times six or eight. 21 Q. But was the CAT team working every day? 22 A. No. 23 Q. Okay. 24 A. And I can't recall how many days they worked 25 during that six to eight-week period of time. I'd be Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1193 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 97 1 guessing. 2 Q. But, of course, there's records of all of this, 3 right? 4 A. Yes. 5 Q. And there is a whole list of people who would 6 work CAT, correct, as overtime because this is not an 7 assigned position yet, there are not two people who only 8 work CAT, right? 9 A. Correct. 10 Q. So it's not just two officers, it's whoever 11 signs up and is available on these specific days that 12 arise, correct? 13 A. Yes. 14 Q. And sometimes you supervise and sometimes it's 15 Lieutenant Smith, right? 16 A. Yes. 17 Q. And sometimes it may be another sergeant who is 18 acting as watch commander, right? 19 A. Yes. 20 Q. And you don't recall during the six to 21 eight-week period how many times you supervised, right? 22 A. Correct. 23 Q. And do you know how many times during the six 24 to eight-week period Officer Waddell worked CAT? 25 A. I would say several. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1194 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 98 1 Q. And what is that knowledge based on? 2 A. I know he was working a lot of them, based on 3 my conversation with Lieutenant Smith about perhaps we 4 should have another officer work them. Because he 5 signed up for so many of them, it seems he's getting 6 burnt out. 7 Q. Okay. Is this just you and Lieutenant Smith's 8 conversation? 9 A. Yes. 10 Q. Okay. And what date was this conversation on? 11 A. Which one are you talking about? 12 Q. The one you just mentioned. 13 A. It was between the 12th and the 19th, during 14 the week sometime. 15 Q. And was that -- was this at the beginning of 16 this six to eight-week period? Middle of the six to 17 eight-week period? At what point was this -- 18 A. Between the 12th and the 19th. 19 Q. Uh-huh. Right. So when this six to eight-week 20 period that you've just mentioned -- 21 A. Oh. It would have been at the very end of 22 that. It was at that six to eight-week period. 23 Q. So October 12th to 19th would have been at the 24 end of the six to eight-week period you just testified 25 about? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1195 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 99 1 A. Roughly, yes. 2 Q. So other than the information that Lieutenant 3 Smith provided you, did you have any personal knowledge 4 of how many CAT shift overtime -- or CAT shifts Officer 5 Waddell worked during this six to eight-week period? 6 A. Yes. 7 Q. How? What personal knowledge? 8 A. Because he had been working several of them 9 before I talked to Lieutenant Smith, and then checking 10 the overtime hard copy in the hall, you can see that his 11 name was all over that calendar for that month, signing 12 up for those shifts. Since he was fairly senior at the 13 time, he would have automatically been granted all those 14 previous ones because he had the seniority to claim that 15 overtime as his. 16 Q. So we're talking about the month of October? 17 A. Correct. 18 Q. So -- 19 A. Yes. And the month before, but yes. 20 Q. Okay. This calendar, is this a month calendar 21 or year calendar? What does this calendar look like? I 22 have never seen it. 23 A. It's just a piece of -- it's a legal size sheet 24 of paper that's printed up and it has dates and then a 25 bunch of blank lines. So those dates indicated days Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1196 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 100 1 that were available for CAT overtime and then officers 2 could sign up on the blank lines to claim those dates. 3 Q. Was this calendar an actual calendar or was it 4 a handwritten calendar? What does this calendar look 5 like? 6 A. It was printed. I can't recall if it was just 7 dates. If it had a grid, I don't remember if it had a 8 grid or not. It's been years, a year and a half, since 9 I've seen it. 10 Q. Okay. But your testimony -- your testimony is 11 that you could see the month before, as well? 12 A. I had seen the month before because I had seen 13 it when it was posted. 14 Q. Okay. Wait. Let me break your testimony down. 15 Could you see all of October? 16 A. Yes. 17 Q. Okay. So we can say that you have seen, at 18 least, up through -- well, the 19th, right? 19 A. Correct. 20 Q. Okay. 21 A. Sometime between the 12th and 19th. 22 Q. And how many shifts up through the 19th do you 23 recall Officer Waddell having signed up and/or worked, 24 based on your recollection? 25 A. There was some where he didn't work any in a Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1197 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 101 1 week and others where he would sign up for two or three 2 or four. It varied. 3 Q. And do you know what his regular work schedule 4 was like? 5 A. Yes. 6 Q. You do? 7 A. Yes. 8 Q. And how many days a week did he work? 9 A. Four. 10 Q. And did he work all those days? 11 A. Did he work all of his regularly scheduled 12 days? 13 Q. Yes. 14 A. The best of my knowledge. He may have taken a 15 day off in between somewhere. I don't know that. 16 Q. I'm just asking for the burn-out assessment. 17 You didn't look? 18 A. No. I know that he was signing up for these 19 five-hour shifts, then he would have a two-hour break 20 and then he would come do his patrol shift or an hour 21 break because his patrol shift would typically start at 22 5:00 in the afternoon and the CAT would go till 4:00. 23 So he would go do errands or whatever he wanted and work 24 his ten-hour patrol shift. 25 Q. And all these overtime shifts, they have to be Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1198 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 102 1 approved by a supervisor, correct? 2 A. Yes. 3 Q. And so supervisors signed off on all of these 4 overtime shifts that he registered for, right? 5 A. Lieutenant Smith did, yes. 6 Q. No problems with any of that, correct? 7 A. I don't know what you're asking. 8 Q. Well, Lieutenant Smith surely didn't cross his 9 name off of any of them, did he? 10 A. I think he did on some, but I don't know for 11 sure, but he could have. 12 Q. When you had this conversation with Lieutenant 13 Smith, did he say I've crossed his name off on any 14 shifts, like, I have crossed name -- Officer Waddell's 15 name off on the calendar? 16 A. I don't know. I don't recall having that 17 conversation, but he had the authority to. 18 Q. Okay. He did. Did you? 19 A. No. 20 Q. You didn't? 21 A. No. I mean, if something were to arise and 22 Lieutenant Smith wasn't present, then, obviously, I 23 could make a change, but, typically, that was something 24 that was done well in advance by Lieutenant Smith, and 25 that was not in my realm of responsibilities. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1199 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 103 1 Q. On the day where you were the supervisor and 2 Lieutenant Smith was home, off work, were you the watch 3 commander? 4 A. The 19th? 5 Q. Uh-huh. 6 A. Yes. 7 Q. So you were in charge? 8 A. Yes. 9 Q. What are your -- what are in your realm of 10 responsibilities as a watch commander in charge? 11 A. I show up at about 6:30 in the morning, get the 12 schedule prepared, or sign-up sheet, go down, get a 13 equipment ready to issue to the officers, I would run a 14 briefing, make sure the officers that are supposed to be 15 at work are at work, I assign calls as they come in 16 during that briefing time, and then once everybody goes 17 out and starts working, I would read and approve 18 reports, respond to calls that I thought there could be 19 some city liability or use of force, something of that 20 nature, and just oversee general operations of the 21 building and patrol force during the daytime. 22 Q. Do you have the authority to order in officers 23 as a watch commander? 24 A. Yes. 25 Q. Do you have the authority to cancel officers? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1200 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 104 1 A. I have never canceled an officer. 2 Q. I understand. You have the authority to 3 cancel? 4 A. I guess, it depends on what the reason would be 5 for. 6 Q. You're the watch commander, right? 7 A. I was, yes. 8 Q. So there's a qualifier to that? 9 A. Certainly. 10 Q. Okay. And this overtime, is this one to two 11 officers or always two officers? 12 A. It was intended to be two officers, but we were 13 short on resources at the time. So sometimes it was no 14 officers and sometimes it was just one. 15 Q. So sometimes you could have one CAT officer out 16 and about, correct? 17 A. Absolutely. 18 Q. So you could cancel an officer, correct? 19 A. No. I wouldn't -- no. You're misstating what 20 I'm saying. 21 Q. I'm not. I'm just asking yes or no. 22 A. No, I wouldn't cancel a CAT officer. 23 Q. You said Sergeant Amoroso was Officer Waddell's 24 direct supervisor? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1201 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 105 1 Q. When was that? 2 A. That was back in February until he was placed 3 on administrative leave. 4 Q. February of what year? 5 A. Of 2012. He was prior to that, also. 6 Q. Okay. 7 A. But that's when I specifically -- that's the 8 time frame I was specifically talking about when I said 9 Sergeant Amoroso was Officer Waddell's supervisor. 10 Q. Okay. So Officer Waddell was only supervised 11 by you when you were CAT, correct, CAT watch commander; 12 is that right? 13 A. For the most part, yes. 14 Q. Okay. And then if you were on scene somewhere 15 and you were the scene supervisor, right? 16 A. Correct. 17 Q. Okay. And then his actual supervisor, the one 18 that would have written his evaluations, would have been 19 Sergeant Amoroso, right? 20 A. Yes. 21 Q. And how far back was Sergeant Amoroso his 22 supervisor, to your knowledge? 23 A. Before what? 24 Q. Well, I mean, you said, at this point, when you 25 were talking about it was Sergeant Amoroso, do you know Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1202 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 106 1 how far back that goes? 2 A. Um, Sergeant Amoroso had been supervising 3 downtown since around January of 2009. I don't recall 4 exactly when Mr. Waddell was assigned to the downtown 5 unit, but he served, I believe, two and a half -- two 6 years down there. 7 Q. Okay. So if you were assigned to a certain 8 location, that is who your -- that supervisor over that 9 location becomes your direct chain of command 10 supervisor; is that correct? 11 A. Yes. 12 Q. Okay. So if you have an issue with a 13 particular officer, you, as sergeant, would go to that 14 supervisor to address the issue with that particular 15 officer? Is that the practice of the San Luis Obispo 16 P.D.? 17 A. Yes and no sometimes. 18 Q. Yes and no sometimes? 19 A. Yes. 20 Q. Okay. When is yes? 21 A. Yes would be if I had an issue with Mr. Waddell 22 in his capacity as a downtown bicycle officer, I would 23 have gone to Sergeant Amoroso. 24 Q. Okay. 25 A. If I had an issue with him functioning as an Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1203 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 107 1 overtime CAT assignment, I would have gone to Lieutenant 2 Smith because that was something -- the project he was 3 overseeing. 4 Q. Okay. And when is sometimes? 5 A. What I just told you. I wouldn't go to report 6 something to Sergeant Amoroso if it was something that 7 Mr. Waddell was doing on one of Lieutenant Smith's 8 shifts where he had scheduled that. I'd let Lieutenant 9 Smith talk to Sergeant Amoroso about that if he felt it 10 necessary. 11 Q. Okay. And then, as a supervisor, do you ever 12 handle anything yourself? 13 A. Yes. 14 Q. When is that? 15 A. Anything I'm directly dealing with with my 16 officers. 17 Q. And how do you handle it? 18 A. I'm not sure what I'm handling. 19 MR. PALMER: Objection. Vague. Handle what? 20 MS. CASTILLO: Well, he said anything I'm 21 dealing with with my officers. So that was general. So 22 I'm asking him generally. 23 THE HEARING OFFICER: Allowed. Go ahead. 24 THE WITNESS: Right now, I'm supervising the 25 downtown bike unit. So I have two officers that are Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1204 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 108 1 assigned the week full time, and then I conduct 2 evaluations on an additional officer that works during 3 the day. So if I have an issue with my two officers I 4 work with on a regular basis, I would deal with them 5 directly. 6 BY MS. CASTILLO: 7 Q. Okay. And by virtue of that, you mean 8 counseling, documentation, et cetera, et cetera? 9 A. Yes. 10 Q. Have you been to supervisor school? 11 A. Yes. 12 Q. And when was that? 13 A. That was at -- it was down in San Bernardino. 14 Q. And when was that? 15 A. In 2012. I think in April, May. It was an 16 eight-hour course. 17 Q. And what about internal affairs school? Did 18 you go to one of those? 19 A. Yes. 20 Q. When was that? 21 A. I believe that was in the beginning of -- 22 middle of '13, beginning or middle of '13. 23 Q. And where was that? 24 A. Up in the Bay Area. 25 Q. And who taught that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1205 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 109 1 A. There was a number of instructors. It was 2 hosted by the college up there. I have no clue what 3 college it was. I have to look back at my records. 4 Q. Attorneys teach it, too? 5 A. Yes. 6 Q. Your testimony was that you used to be partners 7 with Officer Waddell. When was that? 8 A. During his time in the S.W.A.T. team. 9 Q. So you were S.W.A.T. partners? 10 A. We were on the S.W.A.T. team together. I used 11 that term somewhat generically. 12 Q. So it's not like you were detective partners or 13 anything like that? 14 A. Correct. 15 Q. Okay. So now then, you said Stahnke. Were you 16 partners with him? 17 A. We were assigned to the Detective Bureau at the 18 same time. 19 Q. So partners with him or as generic with him? 20 A. I guess, you could call us partners. We shared 21 an office. We went on operations together. 22 Q. Okay. And when he was working CAT with Officer 23 Waddell, were they partners? 24 A. Yes. 25 Q. Generic or assigned together? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1206 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 110 1 A. They were assigned to go work overtime together 2 for that particular shift. 3 Q. When they work overtime together for a 4 particular shift, do they do everything together? 5 A. I guess, it depends on the officers. 6 Q. I don't know -- can you explain further? 7 A. Yes. So some of them who got along real well 8 would go out and go everywhere together. Other ones, 9 you know, say, one day, one of the officers was -- made 10 an arrest, that officer may go back to the station and 11 write that arrest report while the other one's downtown 12 writing tickets for smoking in public or what have you. 13 So sometimes they would be together all the time and 14 other times they would not. 15 Q. Okay. So did -- on the date that we were 16 talking about Officer Waddell being late, did Officer 17 Stahnke need to wait for Officer Waddell to get to the 18 station before he could go work? 19 A. No, he didn't have to. 20 Q. Did you need him to leave to go work? 21 A. Um, I believe he told me he was working on 22 something, finishing up some paperwork that he had. So 23 he was just going to wait for Officer Waddell, 24 Mr. Waddell. 25 Q. He told you that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1207 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 111 1 A. Yes. Something to that effect. I knew he was 2 at the station, working. He wasn't just sitting in a 3 chair, waiting for him to get there. 4 Q. Now, these eight-hour overtime shifts -- 5 A. Five-hour overtime. 6 Q. I'm sorry. My five looked like an eight. 7 That's my handwriting. 8 Five-hour overtime shifts, you've said they are 9 from 11: 00 to 4:00, correct? 10 A. Yes. 11 Q. Okay. And is there a significance to the hours 12 of alone to work? 13 A. Yes. 14 Q. Can you explain? 15 A. That was when we saw the greatest level of 16 activity that that team was designed to deal with. 17 Q. And was this based on visual observations or 18 statistical analysis? 19 A. It's my understanding it was both. I mean, 20 they go hand in hand. 21 Q. So this is -- you did police stats or this is 22 when people were calling in or -- explain. 23 MR. PALMER: Objection. Lack of foundation. I 24 don't think this witness can testify as to the reasons 25 and details of the inception of the program. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1208 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 112 1 THE HEARING OFFICER: Do you know about this 2 program? Can you testify about it? 3 THE WITNESS: Um, I can make a guesstimation as 4 to the question she's asking. 5 THE HEARING OFFICER: No guessing. 6 THE WITNESS: I don't know 100 percent of why 7 they were deployed during those hours, how that 8 determination was arrived at. 9 THE HEARING OFFICER: If you don't know, you 10 don't know. 11 THE WITNESS: Okay. 12 BY MS. CASTILLO: 13 Q. Was it your understanding, as the watch 14 commander who sometimes substituted in as the 15 supervisor, that the 11: 00 to 4:00 time period was a 16 hard and fast time period? 17 A. That was when the overtime was scheduled for, 18 yes. 19 Q. Okay. I understand when the overtime was 20 scheduled for. My question was, that it was a hard and 21 fast time period with no flexibility? 22 A. No. There was some flexibility. 23 Q. Can you describe the flexibility? 24 A. If somebody had something going on, but there 25 was nobody else signed up for the shift that day and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1209 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 113 1 there was a reason for it, that officer could go to 2 Lieutenant Smith, or whoever the other supervisor was at 3 the time, and ask if they could adjust the time frame 4 off. That happened before, yes. 5 Q. Can you describe what adjusting the time frame 6 meant? 7 A. If -- like, for Mr. Waddell, if he wanted to 8 come in at 11: 30, he could work it from 11: 30 to 4:30 9 that afternoon. 10 Q. So if you came in 30 minutes late, you would 11 add 30 minutes to the outside of the time period? 12 A. Sometimes. 13 Q. Okay. If I was to look at time cards for this 14 overtime shift, would it say 11: 30 to 5:30 if I 15 adjusted? 16 A. It should. 17 Q. So there are actual times on the time cards, is 18 what you're saying? 19 A. The officers, when they fill out the time card, 20 they're supposed to put in -- there's a drop-down so you 21 can put how many hours you work overtime and there's a 22 note section, and in that note section, you're supposed 23 to articulate what hours you worked. That's the 24 standard to which everyone is held. 25 Q. Okay. So that's what the time cards look like Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1210 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 114 1 across the board for the police department? 2 A. Yes. 3 Q. Okay. And we're talking about the time period 4 that we've already been discussing, correct? 5 A. Yes. 6 Q. Okay. So your testimony was, please correct me 7 if I wrote it down wrong, that when you were in the 8 Detective Bureau on the 18th, that you saw Detective 9 Stahnke -- am I saying that right? 10 A. Stahnke. 11 Q. Stahnke walk past you? 12 A. No. 13 Q. What did -- okay. I wrote down, saw him walk 14 past -- walk by me. What happened? 15 A. I was in my office and he walked past my office 16 and I saw him walk past. I wasn't in his office. 17 Q. I didn't -- okay. Okay. You were where? 18 A. In the sergeant's office at the police 19 department. 20 Q. Okay. And he walked past your office? 21 A. Correct. 22 Q. And then what happened? 23 A. I said have a good weekend. 24 Q. Was he leaving? 25 A. He was. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1211 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 115 1 Q. To go on -- 2 A. To go home. It was the end of his shift. 3 Q. Okay. And then what? 4 A. I told him have a good weekend and he said, oh, 5 I'll be in tomorrow, I'm working CAT, something to that 6 effect, that he let me know that he didn't get to start 7 his weekend yet, was the crux of the conversation. 8 Q. Okay. And then what? 9 A. He went home. 10 Q. And that was -- okay. That was the 18th? 11 A. Correct. 12 Q. Okay. And then anything else happen on the 13 18th that was important? 14 A. No. 15 Q. Okay. And then, I guess, we go to the 19th, 16 right? 17 A. Yes. I think that's where you want to go. 18 Q. Right. 19 A. That comes next. 20 MR. PALMER: Right before the 20th. 21 BY MS. CASTILLO: 22 Q. Crazy how that happens. 23 Then, so you're still the watch commander, 24 right? 25 A. On the 19th, yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1212 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 116 1 Q. Okay. But now you're in the capacity of CAT 2 supervisor, also? 3 A. Correct. 4 Q. Okay. And you know, because you saw him 5 yesterday, that he is here, working a CAT shift, right? 6 A. Yes. 7 Q. And you see him on the 18th? 8 A. I saw him on the 18th, yes. 9 Q. What time? 10 A. On the 18th? 11 Q. Yes. 12 A. As he was leaving. So probably shortly after 13 5:00 in the afternoon. 14 Q. And where was he going? 15 MR. PALMER: Objection. Hasn't this been asked 16 and answered? 17 MS. CASTILLO: We're talking about the 19th. 18 MR. PALMER: No. You said the 18th. 19 MS. CASTILLO: I'm sorry. I thought we were 20 back on the 19th. 21 THE HEARING OFFICER: Let's be clear. Go 22 ahead. 23 BY MS. CASTILLO: 24 Q. 19th. You saw him on the 19th. Where was he? 25 A. He was upstairs, walking out of the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1213 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 117 1 report-writing room, I believe, somewhere down that main 2 hallway of stairs. 3 Q. And what was he doing besides -- I mean, was he 4 going somewhere? 5 A. I didn't ask him. 6 Q. Other than walking, did you stop -- 7 A. I didn't ask him. 8 THE HEARING OFFICER: Hold on. One at a time. 9 Let her finish, then you can answer. 10 BY MS. CASTILLO: 11 Q. Did you stop him to talk to him? 12 A. I did. 13 Q. What time was this? 14 A. About, probably, five minutes after 11: 00. 15 Q. And you know this -- is this an approximation? 16 How do you know this time? 17 A. It's an approximation. 18 Q. What time did you start your shift that day? 19 A. 6:45 in the morning. 20 Q. Is there a reason that you remember it was 21 11: 00? 22 A. Because I came in to issue equipment to the CAT 23 officers at 11: 00, but they had not shown. I hadn't 24 seen them yet. So I knew it was shortly after 11: 00. 25 Q. What kind of equipment do they get? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1214 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 118 1 A. Comes in an orange Pelican box. It looks like 2 a plastic briefcase, has a camera, digital voice 3 recorder, there's a breath alcohol device, cell phone 4 and a cell phone charger. 5 Q. Are they supposed to find you or do you always 6 find them? 7 A. Typically, if I'm out in the field and I know 8 somebody's starting late, I would go in and find them so 9 I could issue the equipment and then go back out into 10 the field. There are other times where I'm already in 11 the station approving reports or dealing with a 12 situation there and they would have to come find me 13 because I would be, otherwise, busy. 14 Q. Okay. So at 11: 05, you find them. Where do 15 you typically find the CAT officers? 16 A. Usually, I go downstairs in the briefing room 17 where that equipment is stored and I usually meet them 18 somewhere right there because they're going to start 19 their shift and I'm on my way. So I might meet them in 20 the hall or I might be in the briefing room. 21 Q. So you don't have a designated briefing time 22 for CAT? 23 A. CAT doesn't get a briefing, a formal 24 patrol-type briefing, I should say. 25 Q. Does CAT punch a time card when they walk into Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1215 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 119 1 the station? 2 A. No, they don't. Nobody does. 3 Q. Okay. So until CAT comes and finds you -- I 4 mean, how do you know that CAT is -- I mean, does CAT -- 5 is CAT working when they're on the street? Is CAT 6 working when they're in the building? Just tell me how 7 it works at San Luis Obispo P.D. 8 A. Well, typically, an officer would show up about 9 15 to 20 minutes before their assigned shift starts, 10 they'd get their gear on, and by 11: 00, the expectation 11 is they're doing CAT-related work on those overtime 12 shifts. 13 So that may sometimes be getting a briefing 14 from the supervisor that day about I need you to go down 15 and check on these locations for different problems or 16 they may just, here's my box, check out their car and be 17 heading downtown to start their foot patrol. 18 Q. Does the CAT team have to get the box from the 19 supervisor? 20 A. Yes. It's secure. 21 Q. So if the CAT officers cannot find the watch 22 commander at 11: 00, what's the protocol? 23 A. It depends on the officer. Patrol officers are 24 not assigned that equipment. So they can go out and 25 start working until the supervisor becomes available. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1216 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 120 1 The bike officers that worked that overtime patrol, they 2 were, typically, assigned the equipment they would need. 3 So the bike officers, like Mr. Waddell was, had a camera 4 assigned to him and his bicycle. So he could have just 5 grabbed that and gone to work in the field if he wanted 6 to. 7 So on the days when it was just him working, he 8 would just, typically, hop on his bicycle that had all 9 that equipment and leave the station and go down and 10 start working. 11 Q. Based on what you saw when you were supervising 12 him, right? 13 A. Correct. 14 Q. Or someone told you, right? 15 A. That would be based on my observations. 16 Q. Okay. Is there any kind of log about what 17 these officers do on a daily basis? I mean, are you 18 tracking what they do? 19 A. Well, what they do gets tracked in the form of 20 enforcement activity or field interview cards where they 21 just stop and chat with somebody and maybe give them a 22 trespassing warning, that would be documented, yes, but 23 everywhere they go isn't necessarily documented. 24 Q. Right. Oh, okay. So it's on the officer to be 25 working CAT-related activity at 11: 00? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1217 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 121 1 A. Yes. 2 Q. So you testified earlier that there was this 3 computer sheet. I've not seen a computer sheet. So can 4 you testify some more about this computer sheet that 5 has, I don't know, sign-ins or log-ins or whatever you 6 were talking about earlier who was working for CAT 7 during the day? You said it was computer-generated. 8 A. You're talking about the sign-up sheet? 9 Q. I don't know what you were talking about. You 10 said it was computer-generated. 11 A. I was only talking about the sign-up sheet 12 where officers would put their name down for shifts they 13 wanted to work. 14 Q. Okay. Was there something on the computer that 15 you could look at? Because you said there was a hard 16 copy. 17 A. Oh, SpeedShift? Yes. There's a computer 18 scheduling program that we use for regular patrol 19 shifts, and then when there's special projects going on, 20 typically, we'll post a sign-up sheet upstairs in the 21 hall where all the officers have access to it so they 22 can go and put their name down as interested in working 23 that special event or overtime shift. 24 Q. Can anyone be a CAT officer? 25 A. Any of the patrol officers? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1218 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 122 1 Q. Yes. 2 A. Yes. At that time, they could have been, yes. 3 Q. Okay. Now, can you be a CAT officer? 4 A. Now it's a dedicated full-time position and 5 there's officers that are assigned to that full time. 6 Q. And you have to print in the interest memo? 7 A. There's an interest memo and an oral interview 8 process and a final selection by a staff. 9 Q. Okay. So SpeedShift, I've never heard of it. 10 Can you describe it a little more? 11 A. It's a digital program package that the city 12 uses. 13 Q. Okay. Do the officers have access to 14 SpeedShift? 15 A. They have access to view it, but not manipulate 16 it. They can't change the schedule, at all. 17 Q. Then you said there's the hard copy that they 18 can sign up for, right? 19 A. Specific to the CAT shifts, not regular patrol 20 shifts. 21 Q. Okay. And then is that the only two possible 22 ways that there can be any scheduling done regarding 23 this CAT system shift schedule, to your knowledge? 24 A. That's the only way we typically do it. 25 There's always a possibility a supervisor could call Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1219 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 123 1 somebody and forget to put it in SpeedShift, but, 2 typically, it's done those two ways that we've talked 3 about. 4 Q. How about e-mail? 5 A. I suppose somebody could call about it or could 6 put out an e-mail, but that's not the standard way. 7 There -- I have a little more, if you want to hear. 8 Q. I do. 9 A. If somebody signs up for those CAT shifts, 10 Lieutenant Smith or whoever is approving those shifts on 11 the sign-up sheet would probably send or could probably 12 send an e-mail saying you've been selected to work the 13 shifts -- the following shifts and indicate what shifts 14 they were going to be working. 15 So that's a possibility, but it would be based 16 on that written sign-up sheet upstairs in the hall and 17 then those are supposed to be put into SpeedShift. 18 THE HEARING OFFICER: One has to be careful how 19 quickly one says CAT shifts. You're doing very well, I 20 might add. 21 THE WITNESS: No slip-ups yet. 22 THE HEARING OFFICER: How are you doing? 23 THE COURT REPORTER: Good. Thanks. 24 MS. CASTILLO: What time is it? 25 MS. NALEWAY: It's 4:15, 4:20. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1220 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 124 1 BY MS. CASTILLO: 2 Q. Okay. So at 11: 05, you haven't seen CAT 3 officers who have orange boxes with things with them and 4 you're going to find whoever is on CAT for the day. 5 Do you have to go reference the schedule to 6 find out who is on CAT for the day other than Officer 7 Stahnke? 8 A. Sometimes. 9 Q. That day. 10 A. That day, I believe I went to reference that to 11 make sure it was going to be Officer Waddell. 12 Q. When did you do that? 13 A. On my way -- when I left around 11: 05, during 14 that trip down the hall. 15 Q. Okay. So on the hallway walk is the posted 16 schedule? 17 A. Correct. 18 Q. And so you grabbed the boxes, you see the 19 schedule, you note it's Officer Waddell, it's 11: 05; is 20 this all right? 21 A. Roughly, at that time, yes. 22 Q. Okay. You then see Stahnke, right? 23 A. Yes. 24 Q. Okay. Then what happens? 25 A. I asked if he knew where his partner was. He Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1221 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 125 1 said he had received a text message indicating from 2 Mr. Waddell that he was going to be 30 minutes late. 3 Q. Okay. Did you ask to see the text message? 4 A. No. 5 Q. Were you surprised at that point that Officer 6 Waddell would have said this to Officer Stahnke, but not 7 to you? 8 A. Do you mean was I surprised I, also, didn't get 9 that same text message at that same time? 10 Q. Right. 11 A. That was a bit odd, yes. 12 Q. And so did you write this down? 13 A. I'm sorry? 14 Q. Did you document that? 15 A. That I didn't get the text message? 16 Q. Right. 17 A. No. 18 Q. Is texting a common practice at San Luis Obispo 19 P.D.? 20 A. It's a common informal term of communication 21 that we use, yes. 22 Q. And are these department phones or personal 23 cell phones? 24 A. On that day, it was my personal cell phone to 25 Mr. Waddell's personal cell phone. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1222 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 126 1 Q. You have Lexipol? 2 A. Yes. 3 THE HEARING OFFICER: Can you spell that for us 4 and maybe tell us what that means? 5 THE WITNESS: Would you like me to? 6 MS. CASTILLO: Please. 7 THE WITNESS: L-E- X-I-P-O-L. It's our policy 8 manual. 9 BY MS. CASTILLO: 10 Q. Okay. So you said he's 30 minutes late. 11 And do you send Stahnke out into the field, 12 knowing that Waddell is trailing behind? 13 A. No. 14 Q. Do you call Waddell on his phone? 15 A. No. I had already sent him a text message. 16 Q. And this was, during this conversation, a 17 non-issue or just odd? 18 A. I'm not sure what conversation you're talking 19 about. 20 Q. The one where you say that it's odd, but -- the 21 one with Stahnke where you're, like, hey, okay, you got 22 a text, I didn't, it's odd, but... 23 A. What's your question? 24 Q. My question is, at the point where you are 25 notified that he received a text message, you didn't, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1223 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 127 1 right, the furtherance of this conversation, what 2 happens next, I guess, is probably the easiest question? 3 A. I left my office to go see if I could find 4 them, saw that Waddell was going to work on the sign-up 5 sheet. So I sent him the text message, asking him if he 6 was still going to come in today. After I sent that 7 message, Officer Stahnke -- or Detective Stahnke came 8 out of the whatever room he was in into the hallway and 9 I saw him, also knowing that he was there to work CAT. 10 I asked if he had seen his partner yet because I still 11 had not heard from Mr. Waddell. 12 Q. Wait, wait, wait. I'm sorry. Back to where we 13 were just talking about he tells you about the text. 14 A. Right. 15 Q. He gets a text that says Waddell's going to be 16 30 minutes late. What happens next there? That's where 17 we're at. 18 A. I don't know what you're -- I went back to my 19 office and kept working after Detective Stahnke and I 20 spoke briefly. 21 Q. Okay. You didn't send Stahnke out into the 22 field? 23 A. No. Because he was working on something he was 24 already working on. 25 Q. And he told you that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1224 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 128 1 A. I don't know if he told me. 2 Q. He was walking, right? 3 A. He was walking and had documents and I know his 4 character is to be busy and I could tell he was in the 5 midst of doing police work. 6 Q. His character is to be busy? 7 A. He's a hard, hard worker. 8 Q. Hard, hard worker. And he had documents? Are 9 these police reports? 10 A. I don't know what they were. 11 Q. Do you know where he was going? 12 A. I don't. 13 Q. When you learned that he had sent -- sorry -- 14 he, Officer Waddell, had sent a message saying that he 15 would be 30 minutes late, did you ask at what time that 16 text message was sent? 17 A. No. 18 Q. You just assumed it was 30 minutes from 11: 00, 19 meaning he'd be there at 11: 30? 20 A. That was my assumption, yes. 21 Q. Okay. What do CAT officers wear? Is there 22 some special uniform? 23 A. They would wear a patrol uniform. 24 Q. And does a patrol uniform look like the one 25 you're wearing, minus the extra stripes on the sleeve? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1225 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 129 1 A. Yes. 2 Q. And then how many times -- well, let me ask 3 you. 4 Do you know if Stahnke and Officer Waddell 5 typically signed up for these overtime shifts together? 6 A. I recall Detective Stahnke working a few of 7 them. I couldn't -- I don't know who his partners were 8 on all those previous shifts that he had worked. 9 Q. Okay. And there wasn't -- did you -- did you 10 later talk to Stahnke about this conversation at any 11 other point in the day? 12 A. No. 13 Q. Do you know how -- did you -- strike that. 14 Did you come into any personal knowledge at any 15 point regarding how Officer Waddell knew he was working 16 with Detective Stahnke that day? 17 A. No, I did not. 18 Q. And did you do any, like, investigation on your 19 own, I mean? 20 A. No. 21 Q. Okay. So, now, this day of the 19th, you 22 already had in your mind, when I see Waddell today, he 23 and I are going to have a talk, correct? 24 A. I knew I needed to have a conversation with 25 him. Coming in that day, I didn't know for sure it Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1226 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 130 1 would be that day. I needed to check the schedule, but 2 it was fairly normal for him to work on a Saturday CAT 3 overtime. So I assumed I would probably see him. 4 Q. Okay. But you're not the CAT supervisor, 5 right? 6 A. That day, yes, I was. 7 Q. Well, that day, you were, but over this program 8 at this time, you are not the CAT supervisor, right? 9 A. Correct. 10 Q. You were the functional -- is this the 11 functional supervisor because you were the watch 12 commander of the day, right? 13 A. Yes. 14 Q. And you would agree that you were the watch 15 commander of the day of this CAT program, right? 16 A. Yes. 17 Q. And so you, before this shift even starts, have 18 already decided that you need to talk to Officer 19 Waddell? 20 A. I had made that determination days prior. 21 Q. Days prior. Okay. 22 And what day did you make the determination 23 that you needed to talk to Officer Waddell? 24 A. It was the day after I discussed these issues 25 with Lieutenant Smith. I don't know the exact date. It Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1227 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 131 1 was between the 12th and the 19th. 2 Q. Officer Waddell did not work at the police 3 department between October 12th and October 19th? Is 4 that your testimony? 5 A. No. He did work between those dates, which 6 prompted me to talk to Lieutenant Smith about his 7 behaviors. 8 Q. Behaviors. Okay. 9 Did you work between October 12th and October 10 19th? 11 A. Yes. 12 Q. Okay. And did you see Lieutenant Smith between 13 October 12th and October 19th? 14 A. Yes. 15 Q. And when did you talk to Lieutenant Smith 16 during that time period? 17 A. I don't recall what date I talked to him about 18 that behavior. 19 Q. Okay. Was the 12th the day that you said you 20 saw him watching a movie? 21 A. No. 22 Q. What day was that? 23 A. It was sometime between the 12th and the 19th. 24 I would -- 25 Q. Where -- I'm sorry. Where -- what's the 12th? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1228 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 132 1 A. The 12th was the first day he showed up late 2 for work. 3 Q. What work? 4 A. That CAT assignment. 5 Q. Were you working that CAT assignment? 6 A. I was the patrol sergeant that day, yes. 7 Q. Were you the CAT supervisor guy -- supervisor 8 sergeant? 9 A. I was that day because it was a Saturday. So 10 Lieutenant Smith wasn't at work. 11 Q. Did you mention this in your internal affairs 12 interview? 13 A. I believe so, yes, with Lieutenant Bledsoe. 14 Q. The date of October 12th? 15 A. Yes. 16 Q. When you discussed October 12th, how much 17 detail did you go into this first date of lateness? 18 A. Not a lot. 19 Q. And since it was a behavioral pattern that you 20 had noticed, how many other dates did you mention? 21 A. I wouldn't have mentioned any. 22 Q. Why? 23 A. Because we're only talking about two days and 24 they're both mentioned. 25 Q. So it was only two days that we're talking Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1229 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 133 1 about being late or... 2 A. That's all I've been talking about. 3 Q. Okay. 4 A. I don't know if anybody else dealt with other 5 days, but I'm only talking about the 12th and the 19th. 6 Q. Okay. And on the 12th, did you document the 7 lateness? 8 A. No. 9 Q. And how late was officer Waddell? 10 A. I believe it was about 10 to 15 minutes late. 11 Q. And was this a date that had been flexed? 12 A. No, it was not. 13 Q. Was this a date that he was docked time for 14 being late? 15 A. Oh, I might have misunderstood your question. 16 I don't know if he -- I don't know how he filled out his 17 time card. I don't know if he worked 15 minutes late to 18 cover the five hours or if he just put in four and a 19 half hours or four and three-quarter hours of overtime. 20 I don't know. 21 Q. But you're the supervisor for that day, right? 22 A. Correct. 23 Q. Wouldn't you have checked how he adjusted his 24 time if that was the case? 25 A. Typically, that's not done until the end the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1230 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 134 1 pay cycle by the approving supervisor. Most people 2 don't go in right then and fill out their time card. 3 Q. Okay. But if he didn't work his full five 4 hours, that would be a serious issue, right? 5 A. Yes. 6 Q. Because we're talking about time and a half, 7 right? 8 A. Yes, it would be a serious issue, yes, we're 9 talking about time and a half. 10 Q. And, yes, you have personal knowledge he would 11 have been 15 minutes late, right? 12 A. Yes. 13 Q. So, yes, you would have documented this 14 somewhere because this is a serious detail? 15 A. Well, I didn't write it down. I went to talk 16 to Lieutenant Smith about it. 17 Q. But you, surely, would have looked at his time 18 card to make sure, at least, he didn't have that 19 15-minute or something, right? 20 MR. PALMER: Objection. Asked and answered. 21 THE HEARING OFFICER: Move on to something 22 else. 23 BY MS. CASTILLO: 24 Q. Did you talk to Officer Waddell about that on 25 the date that you noticed it? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1231 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 135 1 A. Are you talking about the incident on the 12th? 2 Q. The lateness. When you noticed the lateness, 3 did you say to your supervisor, I notice the lateness? 4 A. No. I walked in and found him. He told me why 5 he was late and I said something to effect of, okay, 6 let's get out there, go to work. 7 Q. So there was a conversation on this date about 8 being late between -- 9 A. We spoke, yes. I didn't reprimand him, if 10 that's what you're asking. 11 Q. I'm not asking that, but I will ask that. So 12 you didn't. 13 THE HEARING OFFICER: Okay. 14 MR. PALMER: I think it's more than been asked 15 and answered that he didn't reprimand him. 16 THE HEARING OFFICER: Okay. 17 THE WITNESS: Correct. 18 BY MS. CASTILLO: 19 Q. So when was the movie watching incident that 20 you had with Officer Waddell? 21 A. I don't remember the date. It was between the 22 12th and the 19th. 23 Q. Of October? 24 A. Yes. 25 Q. Was this on a regular patrol shift or a CAT Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1232 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 136 1 shift? 2 A. CAT. 3 Q. And so you were his supervisor that time? 4 A. I don't know if Lieutenant Smith was working 5 that day or not. 6 Q. Okay. 7 A. I don't recall. 8 Q. Do you know what kind of movie he was watching? 9 A. I believe it was a Marvel, like a Batman or 10 Spiderman, one of those two. 11 Q. And where was this? 12 A. At the downtown bike office. It's a building 13 we no longer have access to, but, at the time, it's 14 right next to our downtown office, or downtown center. 15 Q. And he was in there, watching a movie and doing 16 what? 17 A. He told me he was in there for his lunch break. 18 Q. Okay. And did you confirm that? 19 A. Did I confirm what? 20 Q. If he was on his lunch break. 21 A. He wasn't -- he didn't sign off on his lunch 22 period because I didn't know where he was. If he had, 23 it would have indicated that on the computer. So he was 24 just in there. 25 Q. You mean it showed as available if someone Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1233 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 137 1 needed him, he wasn't formally on a lunch break? 2 A. Correct. 3 Q. Was he eating? 4 A. I don't recall. 5 Q. And then you took him to coffee? 6 A. Yes. 7 Q. Where did you take him to coffee? 8 A. Starbucks. It's right next door to our office. 9 Q. How long was that? 10 A. How... 11 Q. Well, then did he put himself out on a lunch 12 brake for that break? 13 A. No. We just walked over and got coffee and 14 that was it. 15 Q. Was the coffee to go or a coffee break? 16 A. No. We just grabbed a cup of coffee and then 17 left. 18 Q. Did you counsel him for watching the movie, not 19 putting himself on a lunch break, at that point? 20 A. No verbal counseling, no. 21 Q. Okay. But, obviously, this was an issue, then, 22 that you brought up to his other sergeant? Is that what 23 you're saying? 24 A. To Lieutenant Smith. 25 Q. Oh, to Lieutenant Smith. And this was when? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1234 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 138 1 A. Between the 12th and the 19th of October. 2 Q. And so at this point is when you had the 3 conversation with Lieutenant Smith, and the conversation 4 between you and Lieutenant Smith is, based on what I'm 5 seeing, I'm paraphrasing, so correct me if you don't 6 like what I'm saying, Kevin is just maybe not the best 7 officer to have filling these overtime shifts, right? 8 A. Basically, yes. 9 Q. And that is because he's been -- I've seen him 10 be late once or twice and I've seen him watch a Marvel 11 movie on his lunch break, right? 12 A. Yes. 13 Q. Any kind of productivity issues or anything 14 else? 15 A. That's what was driving my concern, yes. 16 Q. And you know this because you hold his stats or 17 had complaints, or what? What are we talking about 18 here? 19 A. That's, typically, a spot that's a very 20 high-producing spot. When somebody is downtown working 21 a CAT assignment, you hear them on the radio. They 22 don't have a computer in the car. So that's a lot of 23 the radio traffic for the day. All the other officers 24 are typically doing their business on the in-car 25 computer. So a normal CAT shift is a highly active Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1235 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 139 1 officer, they're out making lots of contacts and 2 checking people for warrants and things like that. 3 I had noticed that Mr. Waddell had not been 4 very active in this week, or so, period, probably a 5 little greater than a week, and felt like he was, 6 perhaps, getting burnt out. 7 Q. And, again, how many times in this week, or so, 8 period did you personally supervise him on these 9 overtime shifts? 10 A. At least three times that week. I believe it 11 was three times. It could have been a week before he 12 was there and the week following, but I know he was 13 working a lot of overtime because I checked. 14 Q. Wait. And this was because you looked at the 15 calendar? 16 A. Because I saw it on the sheet, correct. 17 Q. Okay. And this is because you just didn't hear 18 him on the radio, not because you pulled any stats, 19 right? 20 A. Correct. 21 Q. Because you didn't hear him on the radio? I'm 22 just checking. That's your testimony? 23 A. Yes. Because I didn't hear any activity on the 24 radio. 25 Q. And because he was five minutes late? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1236 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 140 1 A. No. He was about 20 minutes late the first 2 day, and then late the second day. Ten minutes late, 3 something to that effect. 4 Q. Wait. 20 minutes late? What -- 5 A. What day are you talking about? 6 Q. What day are you talking about? 7 A. Well, on the -- 8 MR. PALMER: Objection. Argumentative. 9 THE HEARING OFFICER: That's not argumentative. 10 Which date were you talking about when you said 20 11 minutes? 12 THE WITNESS: On the 19th. 13 THE HEARING OFFICER: October 19th? 14 THE WITNESS: Correct. 15 THE HEARING OFFICER: Okay. 16 THE WITNESS: The 12th, about five to ten 17 minutes late when I went down and found him in the 18 locker room, but during that time, he was still getting 19 dressed. He wasn't going out to get busy. So that made 20 him later. 21 MS. CASTILLO: Is this, maybe, a good time for 22 a break? 23 THE HEARING OFFICER: It is a good time for a 24 break. Can we go off the record. 25 (Recess.) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1237 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 141 1 THE HEARING OFFICER: All right. Continuing 2 with cross-examination of Sergeant Pfarr. 3 BY MS. CASTILLO: 4 Q. Do you remember what Stahnke was wearing when 5 you saw him on the 19th? 6 A. Patrol uniform. 7 Q. And then you went back to your office? 8 A. After I talked to Stahnke, yes. 9 Q. And then what happened next? 10 A. I received the text message response from 11 Mr. Waddell. 12 Q. Okay. And then what? 13 A. I responded back. We had that volley of text 14 messages we went over earlier, and then that was it. I 15 waited in the office, he showed up a short time later 16 and talked to me about what the reason was for him being 17 late and then they went to work. 18 Q. When did you take the screen shot of the text 19 message? 20 A. After I talked to Lieutenant Smith later that 21 afternoon. 22 Q. So same day? 23 A. Yes. 24 Q. So the time at the top of the text message 25 in -- I guess it would be city's Exhibit 10, is it? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1238 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 142 1 THE HEARING OFFICER: Yes. 2 BY MS. CASTILLO: 3 Q. Would be an accurate time of when you took that 4 screen shot? 5 A. 12: 14, yes. 6 Q. And was that at the direction of Lieutenant 7 Smith or was that something you did to -- I'm sorry. 8 THE HEARING OFFICER: Are you done with your 9 question? He's waiting for you. 10 BY MS. CASTILLO: 11 Q. Was that at his direction or was that your 12 evidence collection CSI training kicking in? 13 A. We talked about save the text messages and that 14 was the method I chose to save, was screen shot it and 15 e-mail it to him. 16 Q. Okay. And did he ask you to e-mail it to him 17 or did you e-mail it to him? 18 A. Actually, I believe I e-mailed it to him, but I 19 also printed a copy of it out and attached it with a 20 memo and gave it to him. So I don't know if I actually 21 did e-mail that. 22 Q. Okay. So you know that you attached it to the 23 memo? 24 A. Right. 25 Q. You may have also e-mailed it, potentially? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1239 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 143 1 A. Correct. 2 Q. Would that have been the same day, as well, do 3 you think? 4 A. Yes. 5 Q. Okay. 6 A. If I did, it would have been right then. 7 Q. Right. How long have you had an iPhone? 8 A. Since they first came out. 9 Q. And then you know how if you move the text 10 messages to the left, you can see what time the text 11 messages were sent and received? 12 A. Yes. 13 Q. Did you do that on a different time to see when 14 these text messages came in and went out? 15 A. No. These all came in within five minutes of 16 themselves. 17 Q. Okay. So the time period from beginning to end 18 we're saying is 11: 11 to 11: 16, right? 19 A. Less than five minutes. I think, on my iPhone, 20 if it goes longer than five minutes, it posts a new time 21 of when the text message conversation continues. 22 Q. Is that narcotics training or CIC training? 23 A. I believe that's what it is. It's my own 24 observation. 25 Q. Okay. I'll have to test it out because I did Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1240 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 144 1 not know that, but that's good info. 2 So we're thinking 11: 15 is the max that this 3 conversation lasted, right? 4 A. Yes. 5 Q. So then, at some point, Lieutenant Smith calls 6 you back, right? 7 A. Correct. 8 Q. And he calls you back, you have the 9 conversation about Officer Waddell being late, 10 confirming, denying the permission, right? 11 A. Yes. 12 Q. You screen shot the text message, right? 13 A. Yes. 14 Q. So, clearly, the conversation between you and 15 Lieutenant Smith had to have happened before 12: 14, 16 right? 17 A. Yes, it would have. 18 Q. Then what happens? 19 A. What did I do after the conversation with 20 Lieutenant Smith? 21 Q. Right. 22 A. I called Mr. Waddell on the radio and asked him 23 to come back to the police station. 24 Q. Where was he at this place -- or at this point? 25 A. Out in the field, doing police work. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1241 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 145 1 Q. CAT things? 2 A. Yes. 3 MR. PALMER: CAT things. 4 MS. CASTILLO: CAT things. 5 MR. PALMER: Sorry. 6 BY MS. CASTILLO: 7 Q. Does CAT have a special channel? 8 A. No. 9 Q. And this conversation on the radio, do you use 10 10 code? 11 A. We use 1011 code and plain text. 12 Q. And do you recall what the words you used to 13 communicate to him to come to the station immediately 14 were? 15 A. Um, I would have called him on the radio, asked 16 him to 1019 and contact me in the office. 17 Q. And 1019, for the record, would be meaning? 18 A. Come back to the police station. 19 Q. And, approximately, what time was this at? 20 A. I believe immediately following my conversation 21 with Lieutenant Smith, they were out contacting someone 22 downtown. So I waited for that contact to end and then 23 called them in. So not a long time, but more than a few 24 minutes. 25 Q. Okay. And you know that they were contacting Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1242 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 146 1 someone because you heard it on the radio? 2 A. Because I heard radio traffic, correct. 3 Q. Like, the proactive radio traffic that you 4 didn't hear during the time period you were concerned 5 about Officer Waddell, right? 6 A. Correct. 7 Q. Just for contrast. 8 A. Correct. 9 Q. Okay. So this happens. And does Officer 10 Waddell come to the office? 11 A. Yes. 12 Q. And you testified that his demeanor -- well, 13 let me ask you. You tell him over the radio. Other 14 than what you've just testified to, anything else? 15 A. No. 16 Q. Okay. Is Officer Stahnke with him? 17 A. They were together downtown, but I didn't see 18 Officer Stahnke. He didn't come into the office. So I 19 don't know if he was back at the station or if he stayed 20 out in the field during this time. 21 Q. Okay. And is this the point where you say he 22 appeared to be nervous? 23 A. Slightly. 24 Q. What is -- can you describe what you mean by 25 this? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1243 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 147 1 A. Um, he walked in, he was breathing a little 2 rapid, um, he immediately began apologizing. 3 Q. Okay. Wait. Let's stop real quick. Breathing 4 rapid? 5 A. Right. 6 Q. Is this -- now, CAT, is this foot patrol, bike 7 patrol, car patrol? 8 A. It varies, but, that day, they were -- I 9 believe they went out in a car and then he drove back to 10 the station, but I don't know for sure. 11 Q. Can they be foot patrol? 12 A. They can, yes. 13 Q. Can they be bike patrol? 14 A. Yes. If they're bike-trained. 15 Q. Do you know if Officer Waddell was 16 bike-trained? 17 A. I know he was, but I believe Detective Stahnke 18 was not. 19 Q. Okay. And if they're together, are you 20 inferring that one can be on a bike and one cannot be on 21 a bike? 22 A. No. 23 Q. Then I don't -- what was the addition? Why -- 24 A. Then they would go in a car together. 25 Q. Okay. Or to -- you said Officer Waddell was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1244 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 148 1 bike-trained, but Stahnke was not. What does that mean? 2 A. That means, that day, I would be very doubtful 3 they would be on bicycles. They would, traditionally, 4 be in a car together. 5 Q. Okay. But if they were not actually working 6 together the entire day, could Officer Waddell be on a 7 bike and Detective Stahnke not be on a bike? Could that 8 happen during the whole five-hour shift? 9 A. I've never known that to happen. It's, 10 obviously, possible. 11 Q. Oh, okay. So nervous, breathing rapid. Okay. 12 And how quick did he get there after you called 13 him over. 14 A. Five to ten minutes. 15 Q. And nervous, I mean, is he stuttering? Is 16 he -- I mean, what does that mean? 17 A. When he walked into the door, my impression was 18 he was nervous. Any time an officer gets called into 19 the sergeant's office, they always come up and appear a 20 little uneasy about why they're there, even when we're 21 just having a casual conversation and it has nothing to 22 do with any sort of discipline. 23 So I think it's like when you were a kid 24 getting called to the principal's office, not 25 necessarily knowing why you were there and just an Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1245 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 149 1 uneasy feeling. 2 THE HEARING OFFICER: I doubt Ms. Castillo was 3 called to the principal's office many times. 4 MR. PALMER: You need a rep to answer that 5 question. 6 THE HEARING OFFICER: Yeah. You don't have to 7 say anything as pressing. 8 BY MS. CASTILLO: 9 Q. So this observation that he was nervous then, 10 actually, probably -- actually, probably, is normal 11 then, a normal observation then, is what you're saying? 12 A. Yes. 13 Q. So you expected him to look like this, is what 14 you're saying? 15 A. I didn't -- sure. 16 Q. So your observation was he appeared normal when 17 he walked in the room? 18 A. I think that's what I testified to. 19 Q. Great. Thank you. 20 Okay. Was anything else normal about Officer 21 Waddell that you want to note? 22 A. I'm not sure what that means. 23 Q. Well, was his rapid breathing also normal that 24 you -- was that also normal? 25 A. I don't know. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1246 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 150 1 Q. Is there a reason you wanted to bring that up? 2 A. You asked me to articulate why I thought he was 3 a little nervous and that was part of my reasoning for 4 that. 5 Q. Well, I asked you about -- well, you brought up 6 the demeanor with Mr. Palmer on direct. 7 So, I guess, is it fair to say that his 8 demeanor was normal for anyone being called to the watch 9 commander's office? 10 THE HEARING OFFICER: I think he already 11 answered that question. 12 BY MS. CASTILLO: 13 Q. We're just -- it's normal, right? 14 A. For some people, yes. 15 Q. Okay. So he starts talking or you start 16 talking? 17 A. I believe I initiated. 18 Q. And what do you say? 19 A. Told him that I'd talked to Lieutenant Smith 20 and was aware that that conversation did not take place. 21 Q. And by "that conversation," you mean the one 22 that was referenced to in the text message? 23 A. And in person in my office after he arrived at 24 work, the locker room conversation about getting 25 permission to come in late to work. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1247 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 151 1 Q. Okay. And what time was the locker room 2 conversation? 3 A. The conversation that didn't take place? 4 Q. The one that you had with Officer Waddell. I'm 5 sorry. The office conversation. I'm sorry. The one 6 that you had with Officer Waddell when you got to work, 7 when he got to work. 8 A. On the 19th when he showed up late, that was 9 around 11: 30. 10 Q. Okay. Thank you. 11 You talked to Lieutenant Smith, you talked 12 about the conversation. What else was said? 13 A. With Kevin? 14 Q. Correct. 15 A. I told him not to say anything because he 16 wanted to start talking about it. 17 Q. Kevin wanted to start talking about it with 18 you? 19 A. Yes. 20 Q. Okay. And what do you mean by that? 21 A. He said something to the effect of, sorry, what 22 I meant, and I cut him off. 23 Q. So sorry, what I meant -- 24 A. Something to that effect. 25 Q. Okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1248 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 152 1 A. He was going to go in and start talking about 2 what transpired. 3 Q. Okay. And you cut him off and said, this will 4 be fleshed out later, we're not going to have this 5 conversation, something to that effect, correct? 6 A. Yes. 7 Q. Okay. And then did you send him back out on -- 8 bike patrol, CAT patrol? Sorry. 9 A. Yes. He went back to work. 10 Q. On overtime? 11 A. Yes, he was being paid overtime. 12 Q. And you believed at this point that he had lied 13 to you? 14 A. Yes. 15 Q. You did not place him on administrative leave 16 at this point? 17 A. No. 18 Q. Why do you laugh? 19 A. No, I did not. I have never put anybody on 20 administrative leave. That's something that comes from 21 the chief and the captain level. 22 Q. Okay. And what happened next? He worked the 23 rest of the shift? 24 A. Yes. 25 Q. Okay. Do you know, did he work till 5:30, or Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1249 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 153 1 did he work the time that was late? 2 A. I don't know. 3 Q. Do you know what time he -- you don't know what 4 time he got off work? 5 A. I know Detective Stahnke worked until -- until 6 4:00. I don't know if Mr. Waddell stayed or if he left 7 for an hour until his 5:00 shift was supposed to start. 8 Q. What time did you stay till? 9 A. Till 7:00 that night. 10 Q. Who else was supervising that day? 11 A. I was the daytime supervisor that day. 12 Q. So who let him leave? I mean, who signed off 13 on him leaving? 14 A. We don't have a supervisor that says, okay, you 15 can go home now. You work until you're scheduled to go 16 home, and then, typically, you leave. If it's a busy 17 shift and there's a lot going on, then there's an 18 unspoken rule that the officers will check in before 19 they leave so we don't lose valuable resources, but 20 there was no conversation like that this day. 21 So I -- he either left at 4:00 or he stuck 22 around and just stayed until his night shift was 23 supposed to started. I don't know. 24 Q. So he worked at night that time? 25 A. He typically would have. I believe he did. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1250 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 154 1 Q. What time would the night shift have started? 2 A. His shift would have started at 5:00 p.m. 3 Q. Do you recall seeing him at 5:00 p.m.? 4 A. No. 5 Q. Okay. When did you write your memo? 6 A. On the 19th. 7 Q. And was this because you were ordered to or 8 because you decided to? 9 A. Because I was ordered to. 10 Q. And was that on the phone call with Lieutenant 11 Smith? 12 A. Yes. 13 Q. And when was the memo submitted to Lieutenant 14 Smith? 15 A. I had put it in his office that day. So I 16 imagine he got it the following Monday. 17 Q. When he came back to work? 18 A. Correct. 19 Q. And then you were ultimately interviewed by 20 someone who ended up conducting an internal affairs 21 investigation on this case, right? 22 A. Correct. 23 Q. And do you know, approximately, when that 24 occurred? 25 A. Uh, I'd have to look at the memo to recall Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1251 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 155 1 exactly. It was a little bit later. It was -- I don't 2 know how many days. I don't remember the exact date. 3 Q. Is there a memo that says when you were 4 interviewed? 5 A. There's the transcript for it. 6 Q. Oh. The transcript of your interview? 7 A. Yes. 8 Q. Have you reviewed that? 9 A. Yes, but, right now, I'm very tired and I don't 10 recall what it said. 11 Q. When was the last time you reviewed the 12 transcript of your interview? 13 A. On my flight here this afternoon. 14 Q. Did you compare it to the audio? 15 A. No. I have never heard the audio. 16 Q. And who interviewed you? 17 A. Lieutenant Bledsoe. 18 Q. Were you interviewed once or twice? 19 A. Twice by Lieutenant Bledsoe. 20 Q. And, approximately, how far apart, about, this 21 particular internal affairs matter regarding Kevin 22 Waddell were you interviewed by Lieutenant Bledsoe? 23 A. I'd say it was a couple weeks separation, I 24 believe. 25 Q. Do you remember what your full interview was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1252 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 156 1 about, generally? 2 A. He wanted to go into more detail about exactly 3 what my conversation was with Mr. Waddell in the office. 4 Q. Is that about it? 5 A. I believe so. 6 Q. Okay. And let's talk about that convo. Can 7 you be very specific as to what was said in the office 8 with Officer Waddell? 9 A. What time? When he came in and told me he 10 talked to Lieutenant Smith? 11 Q. Correct. 12 A. So before I realized that there was an issue? 13 Q. Okay. Yes. 14 A. Yes. He came in, told me that he had talked to 15 Lieutenant Smith in the locker room the day before on 16 the 18th and then -- 17 Q. Wait. Did he say on the 18th? 18 A. He said on the day before. So that would have 19 been the 18th. 20 Q. Okay. 21 A. And that because of this dance recital or dance 22 practice of his daughter's, he wanted to attend that. 23 So he asked Lieutenant Smith if it would be okay to go 24 to that and show up for work a half-hour later and 25 Lieutenant Smith had told him that that was okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1253 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 157 1 Q. And so, based on your best estimation, how long 2 did this conversation with Officer Waddell in your 3 office last? 4 A. That initial conversation with me? 5 Q. Yes. 6 A. Probably less than a minute. 7 Q. And this was because you requested him to come 8 see you when he got to work, right? 9 A. Via text message, yes. 10 Q. Since you were going to talk to him about his 11 tardiness issues that we've already discussed, right, 12 why didn't you just address it at that point since you 13 were already talking to him in your office? 14 A. Because, by that time, they were already 15 half-hour later than scheduled to be out doing CAT 16 enforcement activities. Detective Stahnke had already 17 been delayed a half-hour. Although he was working, it 18 wasn't on the intended projects. So I didn't want to 19 waste any more time. 20 Q. But -- wait. He was working on intended 21 projects or he wasn't working on intended projects? 22 A. He was not. He was working on his detective 23 duties, staying busy doing those type of duties, while 24 he was waiting for Mr. Waddell to show up. 25 Q. And when did you learn this? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1254 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 158 1 A. That day. 2 Q. When? 3 A. When I talked to him in the hall. 4 Q. Was that at the conversation we were talking 5 about earlier with the documents in his hand? 6 A. Yes. It was apparent he was doing police work, 7 but, obviously, not CAT detail because CAT is out in the 8 downtown area. So it was evident, to me, he was working 9 on his detective assignments. 10 Q. Okay. Wait. Was it evident or did you have a 11 conversation? 12 A. It was evident. He didn't say, Sergeant Pfarr, 13 I'm working on this detective case while Officer Waddell 14 is late. He was busy working and I knew it wasn't on 15 CAT detail. 16 Q. So then when you were talking to Officer 17 Waddell when you told him that you were aware, 18 essentially, that there was this issue, did you 19 communicate to him that you were upset? 20 A. No. Not verbally. 21 Q. Physically? 22 A. I think it was -- or it should have been 23 apparent that I was upset because of the situation. 24 Q. Okay. Did you feel like -- nevermind. 25 In terms of your -- strike that. I'll see if I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1255 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 159 1 have anything else on this one topic and we can move on 2 to the next investigation. 3 Other than your transcript in this case, have 4 you reviewed anything else to refresh your memory? 5 A. No. 6 Q. Okay. We can go and start, I think, on the 7 other investigation. 8 Now, some time before this text situation, you 9 had another issue with Officer Waddell, right? 10 A. I don't know what you're talking about. 11 Q. Well, you testified about another investigation 12 you were caught in the middle of. 13 A. Are you talking about the Bentley? 14 Q. Yes. 15 A. Yes. 16 Q. And that occurred in February, the year -- 17 almost the year prior, right? 18 A. Yes. 19 Q. Okay. And at that time, you're a supervisor? 20 A. Yes. 21 Q. And how long had you been a supervisor at that 22 point? 23 A. About three weeks. 24 Q. Had you been a supervisor before that point? 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1256 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 160 1 Q. And you had testified earlier that there were 2 two occupants of this Bentley, right? 3 A. Yes. 4 Q. And the driver was somewhat responsive, right? 5 A. She was moaning. We knew she was alive. 6 Q. Okay. Did you respond immediately when this 7 crash happened? 8 A. Yes. 9 Q. Okay. So were you dispatched? 10 A. Uh, I don't know if I was dispatched or not, 11 but I responded. 12 Q. Okay. Were you the only supervisor on scene? 13 A. Yes. 14 Q. Okay. So you were new supervisor on scene, 15 right? 16 A. Yes. 17 Q. Does your department have corporals who are 18 also in the field as supervisors? 19 A. No. 20 Q. So it is sergeants or officers, right? 21 A. Yes. 22 Q. Okay. And when you get there, the Bentley is 23 upside down? 24 A. Yes. 25 Q. Are the people still inside? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1257 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 161 1 A. Yes. 2 Q. Do they have to be removed with assistance from 3 the medical team, or did the medical team get called? 4 A. The fire department extricated them. 5 Q. Okay. How long did that take? 6 A. A while. 30 minutes, I would guess. 7 Q. Did the Bentley have to be, ultimately, towed? 8 A. Yes. Later that night. 9 Q. Was the Bentley driveable? 10 A. No. 11 Q. What do you mean, no? For the record, no. 12 MR. PALMER: Long syllable on the no. 13 MS. CASTILLO: Right. 14 THE WITNESS: It went head-on into an 15 embankment, which caused it to flip up length-wise onto 16 its roof. It was not driveable. 17 BY MS. CASTILLO: 18 Q. Okay. 19 A. It was upside down. So the fuel pump shut off, 20 oil was up in the cylinders. It wasn't in operating 21 condition. 22 Q. I don't know very much about cars, since I'm a 23 girl, but those are expensive, right? 24 MR. PALMER: You can't say that. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1258 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 162 1 BY MS. CASTILLO: 2 Q. Are they expensive? 3 A. Bentleys? 4 Q. Yeah. 5 A. I believe they could be considered expensive. 6 I guess it's all relative. 7 Q. I don't have a Bentley. 8 Okay. And you said that specialized 9 investigative unit came out. Is that a traffic unit? 10 A. Yes. 11 Q. So a special traffic unit. Is it for traffic 12 collisions or is it for DUIs? What does this traffic 13 unit do? 14 A. They are usually called out for fatal 15 collisions or very, very serious collisions. 16 Q. So is this a reconstruction team? 17 A. They have reconstruction tools, yes. That's 18 why they're called out. 19 Q. Oh, okay. So was this team going to do a 20 reconstruction in case the person in the car died? 21 A. Yes. 22 Q. Okay. And Officer Waddell is part of this -- 23 or was part of this reconstruction team? 24 A. Yes. 25 Q. Does this require specialized training? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1259 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 163 1 A. Yes. 2 Q. Were you part of this team, too? 3 A. No. 4 Q. Do you have any personal knowledge of the 5 training? 6 A. No. 7 Q. Okay. So you said that the call, sometime, was 8 around 2:15, right? 9 A. I believe. 10 Q. And then sometime around 4:30 to 5:00, the 11 Bentley is still upside down, right? 12 A. I think that's about the time that they were 13 flipping it over. 14 Q. Okay. And why are they -- do you know why they 15 were flipping it over? 16 A. Because it was on its roof and they needed to 17 put it on a tow truck. 18 Q. Okay. And you can't tow a car upside down? I 19 don't know. 20 A. Generally not. 21 Q. Okay. Sorry if I ask dumb questions. 22 So in order to be towed then, at that point, 23 maybe, would it be fair to say that the crime scene has 24 been photographed and it's ready to be taken away to be, 25 I don't know, wherever, tow yard, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1260 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 164 1 A. There would have been -- there was photographs 2 taken before it was rided on its wheels and I believe 3 there was or there should have been photos of it after 4 the fact of the interior of it, showing the presence, or 5 lack thereof, of alcohol and things of that nature, and 6 then it would have been towed for Officer Kevany, or 7 whoever was going to do it, to do the physical check of 8 the car to make sure that the mechanical components were 9 functioning correctly. 10 Q. Is Officer Kevany on this special investigative 11 unit? 12 A. Yes. 13 Q. Okay. And why was that particular officer 14 going to do that particular job? Do you know? 15 A. She's just one of the ones that's trained and 16 would do the examinations of those vehicles. I believe 17 we have another officer, but I don't know who it is. I 18 know there's other ones who are trained. 19 Q. So they do a mechanical investigation? 20 A. Um, typically, on a fatal accident, yes, they 21 would do a mechanical so we can show that it was alcohol 22 and not faulty brake lines, the brakes didn't work is 23 why I crashed and not because of the alcohol. 24 Q. Okay. And then it can get towed to wherever 25 it's going to go to die, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1261 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 165 1 A. No. We would tow it to our location so we can 2 do that examination and/or the tow yard and then the 3 insurance companies would take ownership of their car 4 and do whatever they wanted to do with it. 5 Q. Okay. So you -- at 2:15 is when you had the 6 strange or odd interaction with everyone on scene? 7 A. No. It was when I came back out around that 8 4:00 or 4:30, that later time. 9 Q. So it wasn't strange or odd for -- at the first 10 time you got there, the initial time you responded? 11 A. Correct. Because that was on my patrol 12 officers that I had been working with for a few weeks. 13 Q. So who was it strange or odd with? 14 A. The motor unit doesn't -- the traffic team 15 doesn't work weekend nights. They work weekdays. So 16 they weren't there during that initial time I was on 17 scene. They responded at -- after I called them to come 18 out and do the special investigation. So they arrived 19 and then I was gone, and then when I returned, now 20 there's all these people that I haven't seen for several 21 weeks since I've been promoted. 22 Q. Okay. So it was the traffic team that was 23 behaving strangely? 24 A. Yes. 25 Q. Okay. And how many people are on this traffic Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1262 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 166 1 team? 2 A. I don't know. I think there was four that came 3 out that night. 4 Q. And what were their names? 5 A. I believe it was Officer Chitty. 6 Q. Can you spell that? 7 A. C- H-I-T- T-Y. 8 THE HEARING OFFICER: As in bang bang. 9 THE WITNESS: Yes. Officer Cudworth, 10 C- U- D-W-O-R-T-H, Mr. Waddell, obviously, and then 11 Sergeant Goodwin, G- O- O-D-W-I-N. 12 BY MS. CASTILLO: 13 Q. And then -- 14 A. I don't know if there was more or not. 15 Q. But was Kevany there or is she -- 16 A. Yes, she was. 17 Q. So five? 18 A. Yes. 19 Q. Okay. And you said Goodwin is the sergeant? 20 A. Yes. 21 Q. Okay. Is this a he or she? 22 A. She. Goodwin is a she and Kevany is a she. 23 Q. Okay. She, she. 24 And are -- is Kevany a sergeant? 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1263 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 167 1 Q. Okay. 2 A. She's a retired officer. 3 Q. Retired. Okay. Got it. 4 And Goodwin was -- is she a sergeant on the 5 team or just a sergeant working that night? 6 A. At the time, she was the traffic division 7 sergeant. So any time the traffic call-out team or the 8 reconstruction team would respond, she would, generally, 9 respond, unless she was out of town, or something. 10 Q. Okay. So she was also there that night? 11 A. She responded, yes. 12 Q. Okay. And from the time that you were there to 13 the -- at the beginning, or whenever you called the team 14 and then when you came back, was she also there? 15 A. She was just getting ready to leave, as I got 16 back. 17 Q. Okay. So did she leave while you were there? 18 A. I got there, she was finishing loading stuff 19 into her car and drove away moments after I got there. 20 THE HEARING OFFICER: Could I just ask 21 something? I'm not sure if I missed it. You had been 22 working with some of these folks on the traffic team 23 right before you got promoted to sergeant? 24 THE WITNESS: Yes. As an officer, I was 25 assigned to the daytime shift when I would see them on a Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1264 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 168 1 regular basis. 2 THE HEARING OFFICER: So you went from being a 3 peer to being a boss, sort of? 4 THE WITNESS: Yes. 5 THE HEARING OFFICER: Okay. 6 THE WITNESS: And then a few weeks of not 7 seeing them, and here I am now. 8 THE HEARING OFFICER: Got it. Okay. 9 BY MS. CASTILLO: 10 Q. To follow up on that, did you work with Officer 11 Waddell during that time? 12 A. I did because he was assigned to the bike team 13 downtown. So we worked the same nights together. So I 14 would see him in passing on a very regular basis. 15 Q. But not on the same -- so you would work 16 nights, but he was on a different assignment? 17 A. Right. 18 Q. Like different team? 19 A. Correct. 20 Q. Okay. Different supervisor? 21 A. Yes. Sergeant Amoroso supervised Mr. Waddell 22 and Officer Anglehart on the bicycles around our 23 downtown bar area, and, at that time, I was supervising 24 the patrol officers around the rest of the city. 25 Q. Okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1265 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 169 1 A. But our distance overlapped quite a bit. 2 Q. And you said saluting, standing at attention, 3 teasing you, right? 4 A. Yes. 5 Q. Did Officer Waddell do that? 6 A. No. 7 Q. So then the -- do you know who took any of 8 these photographs? 9 A. Um, I -- no. It was one of the traffic 10 call-out team. 11 Q. Would -- 12 A. There was also some from patrol when they first 13 got there because we thought it was fatal. So we 14 started snapping photos as soon as we got there, and 15 there was a patrol officer doing that. 16 Q. No one knows who? 17 A. It's documented in the report, but I can't, off 18 the top of my head, recall who was taking pictures two 19 and a half years ago. 20 Q. Okay. So -- okay. And this is -- have you 21 seen these pictures before that are in the Tab 11? 22 A. Just a few minutes ago when we were -- or when 23 we were going over them earlier today. 24 Q. Is this the first time you've seen these 25 photos? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1266 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 170 1 A. Yes. Today. 2 Q. Ever? 3 A. Yes. Actually, you know what, they may have 4 been referenced during the administrative hearing, but I 5 don't recall seeing them before. 6 Q. Which administrative hearing? 7 A. The one with Lieutenant Proll. 8 Q. Did you testify in the administrative hearing 9 for Lieutenant Proll? 10 A. Yes. 11 Q. Can you explain what I'm looking at in these 12 photographs, if we go to -- 13 A. 11-B? 14 Q. Yes. 15 A. It's the Bentley. It's upside down on its 16 roof. This is where its final resting place was after 17 the accident occurred. 18 Q. Okay. So where's the front of the car? 19 A. It's facing the top of the page by the two 20 rivet holes. 21 Q. Okay. And then if we go to C, this would be 22 the back, correct? 23 A. Yes. 24 Q. Okay. And there's a circle. That's the trunk? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1267 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 171 1 Q. Okay. Is this a convertible? 2 A. Yes. 3 Q. Okay. 4 A. But the top was up at the time of the accident. 5 Q. Okay. If we go to D, I see left rear, left 6 front. These have been premarked, right? 7 A. Yes. 8 Q. Okay. For the record. 9 And it looks like the air bags have deployed; 10 is that correct? 11 A. Yes. 12 Q. Okay. And so we've heard some testimony about 13 hub caps and -- right? 14 A. Yes. 15 Q. Okay. Can you point those to me? 16 A. They're the center of the wheels. It's a white 17 B. -- 18 Q. Okay. 19 A. -- around where the lug nuts -- it covers the 20 lug nuts. 21 Q. I'm learning all these terms. Lug nuts. Okay. 22 Then the next one is E. 23 A. I'll mark it E. 24 Q. And this -- I think it's been marked left rear? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1268 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 172 1 Q. Okay. And then F -- 2 A. This is one of the patrol pictures. 3 Q. Okay. Who -- are these fire people standing in 4 the picture? 5 A. Yes. 6 Q. Okay. The next page would be, then, G. 7 THE HEARING OFFICER: We're up to G, you 8 said? 9 MS. CASTILLO: Yes. G. 10 BY MS. CASTILLO: 11 Q. And this is a -- looks like just a further away 12 view. Are these poles? 13 A. They're little T-posts that are normally used 14 for a fence. They were being used for a trellis. 15 Q. Okay. And that's the end of the pictures? 16 A. Yes. 17 Q. Are there any other pictures, that you're aware 18 of, that were connected to this police report or traffic 19 collision report? 20 A. I'm sure there's lots more pictures. 21 Q. Do you know, approximately, how many other 22 pictures there may be connected to this traffic 23 collision report or police report? 24 A. I don't know how many. 25 Q. Do you remember how many you've seen? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1269 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 173 1 A. I don't remember seeing any, but I would be 2 very, very surprised and disappointed if there were not 3 lots more pictures of the traffic accident scene. 4 THE HEARING OFFICER: I just want to note here 5 we're coming up on 6:00. I don't know if this is a good 6 stopping point. 7 MS. CASTILLO: We should probably break. 8 THE HEARING OFFICER: Or five more minutes is a 9 better one? 10 MS. CASTILLO: No. 11 THE HEARING OFFICER: Off the record. 12 (Discussion off the record.) 13 THE HEARING OFFICER: It's almost 6:00. So 14 we're going to recess for today and meet back tomorrow 15 at 9:00 and resume the cross-examination of Sergeant 16 Pfarr. 17 Just want to remind you that you're under oath 18 and, also, not to discuss your testimony with anybody. 19 THE WITNESS: Yes, sir. 20 THE HEARING OFFICER: And we'll see you 21 tomorrow at 9:00. Thank you. 22 (The proceedings adjourned at 5:56 p.m.) 23 24 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1270 WADDELL ARBITRATION, DAY 1 6/25/2015 McDANIEL REPORTING Page: 174 1 REPORTER'S CERTIFICATE 2 STATE OF CALIFORNIA) SS. 3 4 I, MELISSA PLOOY, Certified Shorthand Reporter, 5 licensed in the State of California, holding CSR License 6 No. 13068, do hereby certify: 7 That said proceeding was verbatim-reported by me by 8 the use of computer shorthand at the time and place 9 therein stated and thereafter transcribed into writing 10 under my direction. 11 I further certify that I am not of counsel nor 12 attorney for or related to the parties hereto, nor am I 13 in any way interested in the outcome of this action. 14 In compliance with Section 8016 of the Business and 15 Professions Code, I certify under penalty of perjury 16 that I am a Certified Shorthand Reporter with License 17 No. 13068 in full force and effect. 18 WITNESS my hand this ____________ day of 19 _____________, ________. 20 __________________________________ MELISSA PLOOY, CSR#13068 21 22 23 24 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1271 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 175 BEFORE THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO In the Matter of the Appeal ) of the Dismissal of ) OFFICER KEVIN WADDELL, ) Appellant, ) and ) CSMCS Case No. ARB-14-0209 POLICE DEPARTMENT OF THE ) CITY OF SAN LUIS OBISPO, ) VOLUME II PAGES 175- 429 Hiring Authority. ) TRANSCRIPT OF PROCEEDINGS SAN LUIS OBISPO, CALIFORNIA FRIDAY, JUNE 26, 2015 8:56 A.M. - 4:15 P.M. REPORTED BY MELISSA PLOOY, CSR #13068 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1272 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 176 1 THE TRANSCRIPT OF PROCEEDINGS WAS TAKEN AT THE 2 SAN LUIS OBISPO UTILITIES DEPARTMENT, 990 PALM STREET, 3 SAN LUIS OBISPO, CALIFORNIA, BEFORE MELISSA PLOOY, A 4 CERTIFIED SHORTHAND REPORTER IN AND FOR THE STATE OF 5 CALIFORNIA, ON FRIDAY, JUNE 26, 2015, COMMENCING AT THE 6 HOUR OF 8:56 A.M. 7 8 APPEARANCES OF COUNSEL 9 HEARING OFFICER: 10 SOUTHWESTERN LAW SCHOOL BY: CHRISTOPHER DAVID RUIZ CAMERON 11 PROFESSOR OF LAW 3050 WILSHIRE BOULEVARD 12 LOS ANGELES, CALIFORNIA 90010 213) 738-6749 13 CCAMERON@SWLAW.EDU 14 FOR THE APPELLANT: 15 GASPARD, CASTILLO, HARPER, APC BY: KASEY A. CASTILLO, ESQ. 16 NICOLE A. NALEWAY, ESQ. 3333 CONCOURS STREET 17 BUILDING 4, SUITE 4100 ONTARIO, CALIFORNIA 91764 18 (909) 466- 5600 KASEY@GCHATTORNEYS.COM 19 NIKKI@GCHATTORNEYS.COM 20 FOR THE HIRING AUTHORITY: 21 JONES & MAYER BY: GREGORY P. PALMER, ESQ. 22 3777 NORTH HARBOR BOULEVARD FULLERTON, CALIFORNIA 92835 23 (714) 446- 1400 GPP@JONES-MAYER.COM 24 25 ALSO PRESENT: LAURA WADDELL, CAPTAIN CHRIS STALEY, CHRISTINE DIETRICK Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1273 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 177 1 I N D E X 2 WITNESS DIRECT CROSS REDIRECT RECROSS 3 SERGEANT CHAD PFARR -- 181 229 241 4 DETECTIVE ADAM STAHNKE 254 267 273 276 5 LIEUTENANT JOHN BLEDSOE 278 309 333, 361 349 6 OFFICER GREG BENSON 369 384 -- -- 7 8 I N D E X T O E X H I B I T S 9 APPELLANT'S MARKED ADMITTED 10 EXHIBIT A 182 253 11 EXHIBIT B 197 253 12 EXHIBIT C-1 215 253 13 EXHIBIT D 364 422 14 EXHIBIT E 420 425 15 16 DEPARTMENT'S MARKED ADMITTED 17 EXHIBIT 7 -- 422 18 EXHIBIT 13 -- 423 19 EXHIBIT 14 -- 423 20 EXHIBIT 15 -- 423 21 EXHIBIT 16 -- 424 22 EXHIBIT 17 -- 424 23 EXHIBIT 18 -- 424 24 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1274 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 178 1 INDEX TO EXHIBITS, CONTINUED 2 DEPARTMENT'S MARKED ADMITTED 3 EXHIBIT 19 -- 422 4 EXHIBIT 20 -- 424 5 EXHIBIT 21 -- 424 6 EXHIBIT 22 -- 424 7 EXHIBIT 23 347 -- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1275 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 179 1 THE HEARING OFFICER: Let's go back on the 2 record. Good morning, everybody. This is day two of 3 the appeal of Officer Waddell. It's June 26, 2015, and 4 we're back in the utility department building on Morro 5 Street. 6 Before we continue with the cross-examination 7 of Sergeant Pfarr, Ms. Castillo has brought to our 8 attention a couple of discovery issues. One is a notice 9 to get the Pitchess file of Sergeant Pfarr, and so my 10 understanding is, between now and July 23rd, that you're 11 going to work that out with Mr. Palmer; is that right? 12 MR. PALMER: Well, no. I'm going to be 13 opposing this. This will be a disputed hearing issue, 14 discovery issue. 15 THE HEARING OFFICER: All right. And to the 16 extent that there could be a response and it could be 17 put in front of me between now and then, maybe we can 18 resolve it by telephone conference or e-mail or 19 something like that. 20 MR. PALMER: Sure. 21 MS. CASTILLO: Right. This just was to make 22 sure it was within the required time period. 23 THE HEARING OFFICER: Okay. Very good. So 24 there's that, and then there's the matter of some -- 25 subpoenaing some other witnesses that Ms. Castillo is Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1276 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 180 1 going to make available to you some subpoenas and 2 Mr. Palmer is going to take care of that? 3 MR. PALMER: I think the discussion was there's 4 some witnesses that Ms. Castillo might need who are city 5 employees, and in an off-the-record discussion, I always 6 make my opposing counsel aware that if a witness is 7 under our control, we will make them available to her as 8 they are to us. As it relates to witnesses who are not 9 under our control, she's going to have to follow the 10 subpoena procedure. 11 MS. CASTILLO: Right. 12 THE HEARING OFFICER: So, I take it, to the 13 extent there's a former employee or to -- you're going 14 to avail yourself of procedures of the -- 15 MS. CASTILLO: Oh, yeah. Absolutely. 16 THE HEARING OFFICER: -- Code of Civil 17 Procedure? Okay. Very good. All right. Anything 18 else? 19 MS. CASTILLO: I think the only thing that we 20 had just discussed was that I will, likely, be calling 21 him back so that my cross will probably be short to the 22 extent that it's not completed today. 23 THE HEARING OFFICER: Yeah. That's fine. I 24 don't have any issues, unless you want to raise 25 something. Mr. Palmer, if you need to recall a witness Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1277 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 181 1 during your case-in-chief, that's cool with me. Okay? 2 MR. PALMER: Fine here, too. 3 MS. CASTILLO: Okay. 4 THE HEARING OFFICER: All right. So we're 5 going to resume with the cross-examination of Sergeant 6 Pfarr. Ms. Castillo, take it away. 7 MS. CASTILLO: Thank you. 8 THE HEARING OFFICER: You're still under oath, 9 Sergeant. You know that, right? 10 THE WITNESS: Yes. 11 THE HEARING OFFICER: Very good. 12 13 CROSS-EXAMINATION 14 BY MS. CASTILLO: 15 Q. Good morning. 16 A. Good morning. 17 Q. In front of you, you have the exhibit book that 18 was brought by the police department? 19 A. Yes. 20 Q. Have you -- before, you were asked to flip 21 through this yesterday to reference specific exhibits, 22 but have you seen this exhibit binder prior to that? 23 A. No. 24 Q. Okay. Can you take the opportunity real quick 25 and look through that exhibit binder right now and find Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1278 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 182 1 the memo that you wrote regarding the Bentley 2 investigation? 3 A. Do you know the exhibit number? 4 Q. No, I don't. 5 A. I don't see a memo in here that I wrote to 6 Lieutenant Smith. Is that what you were asking for? 7 Q. Yes. 8 A. I don't see a memo in here. 9 Q. Keep looking real quick. Double-check. 10 A. Okay. I don't see one. 11 Q. Did you write a memo on this? 12 A. I believe I did, yes. 13 Q. Do you know what date that memo would have 14 been? 15 A. No. 16 Q. Do we have a copy? Do you need a copy? 17 MR. PALMER: Yeah. Thank you. 18 THE HEARING OFFICER: Are we marking this or 19 you're just refreshing recollection right now? 20 MS. CASTILLO: Let's mark it. What would you 21 like it to be called? 22 THE HEARING OFFICER: Appellant's A? 23 MS. CASTILLO: Okay. 24 THE HEARING OFFICER: Appellant Exhibit A, it 25 looks like a two-page memorandum dated December 20, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1279 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 183 1 2013, to Captain Storton from Sergeant Pfarr. 2 BY MS. CASTILLO: 3 Q. Would you like to refresh your memory? 4 A. Yes. 5 Q. While you do that, when's the last time you 6 reviewed this memorandum? 7 A. The last time I reviewed it was the day I wrote 8 it. 9 Q. So when you were on the airplane, reading your 10 transcript, you didn't review your memo, also? 11 A. Correct. 12 Q. Okay. 13 A. Okay. 14 Q. When did the Bentley event occur? 15 A. On February 22nd. 16 Q. What year? 17 A. Of 2012. 18 Q. Okay. And you wrote this memo December 20th, 19 2013? 20 A. I'm sorry. It happened in 2013. 21 Q. Okay. Wait. When -- when did it happen? 22 A. Now I think I'm confusing myself. 23 THE HEARING OFFICER: The memo says 2013. So 24 is your testimony that it was some other day? 25 THE WITNESS: It was 2013. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1280 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 184 1 BY MS. CASTILLO: 2 Q. Okay. Wait. February 22nd, 20 -- 3 A. I think I mistyped it in this memorandum and it 4 should have been -- it should correctly state 2012. 5 THE HEARING OFFICER: So the incident was 6 February 22nd, 2012; is that right? 7 THE WITNESS: Correct. That's the date of the 8 actual incident. 9 THE HEARING OFFICER: Go ahead. 10 BY MS. CASTILLO: 11 Q. So you wrote the memo December 20th, 2013? 12 A. Correct. 13 Q. Okay. So the time period that we're talking 14 about is -- how much later did you write the memo after 15 the incident? 16 A. The accident happened on February 22nd of 2012. 17 Q. Okay. So are we talking two years later that 18 you wrote this memo? 19 A. Basically, yes. 20 Q. Okay. Did you write anything about the events 21 that occurred right after the events that occurred? 22 A. Can I refer to this for a second, sir? 23 Q. I'm asking about the memo. 24 MR. PALMER: This is the problem. He's, 25 obviously, confused and she's pulling this string and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1281 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 185 1 pulling this thread because she has him confused about 2 2012 and 2013. I can resolve this whole thing very 3 easily with the face sheet of the accident report. 4 THE HEARING OFFICER: If the witness needs to 5 take a minute to refresh his recollection, I don't have 6 a problem with that. The dates are whatever the dates 7 are. 8 MR. PALMER: Right. 9 MS. CASTILLO: Can I ask what he's going to 10 refresh his memory with and it be stated on the record? 11 Because he's never seen this book before. So I don't 12 know what he thinks he's going to refresh his memory out 13 of it. 14 THE HEARING OFFICER: I don't know. What are 15 you going to look at the book for? 16 MR. PALMER: It would be improper for him to 17 look through that book to the extent that it relates to 18 him, and you know that. 19 MS. CASTILLO: Which is why I'm saying why 20 would he need to. 21 MR. PALMER: I don't know. Would you like me 22 to get the accident report? It's 2013. 23 MS. CASTILLO: The accident report was also not 24 part of the Skelly. So I don't know why that would also 25 be relevant. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1282 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 186 1 MR. PALMER: That's not relevant, but I have 2 it. 3 THE HEARING OFFICER: If you would like to take 4 a moment to look at the book and see if there's anything 5 else that confirms your recollection, you're welcome to 6 do that. 7 THE WITNESS: Thank you, sir. Okay. 8 THE HEARING OFFICER: Go ahead. 9 THE WITNESS: The memorandum is correct. 10 BY MS. CASTILLO: 11 Q. On the date of the accident? 12 A. Yes. On all dates. 13 Q. So the date of the memorandum, though, that's 14 what I really am interested in. I know when the 15 accident occurred. What I would like to know is when 16 you wrote the memo. 17 A. December 20th of 2013. 18 Q. Okay. So we're talking a difference of almost 19 a year? 20 A. Ten months. 21 Q. Ten months. Okay. And, exactly, what prompted 22 you to write a memo ten months after the fact? 23 A. I was called into Captain Storton's office and 24 he was attempting to determine, during his review of the 25 lying incident, why Mr. Waddell could have said what he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1283 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 187 1 said to me and trying to determine if there was a reason 2 for that, such as I had called him into the office and 3 had different verbal counseling sessions with 4 Mr. Waddell, which caused him to be fearful that, this 5 time, he may be in some sort of trouble. 6 Q. Okay. You -- okay. Wait. Ten months later, 7 you wrote a memo about a joke at a traffic collision 8 because there was an attempt to determine if a text 9 message conversation may have been a lie because of 10 verbal counseling and there was an issue with you? Can 11 you -- wait. Can you restate that so I better 12 understand it? 13 A. I think what Captain Storton was asking me was 14 had I previously had verbal counseling with Mr. Waddell 15 such to the point that if I ordered him to come back to 16 my office, he would be fearful of progressive 17 discipline, or something to that effect, and would, 18 therefore, lie to me in order to stay out of trouble, 19 did I give him some sort of verbal warning in a previous 20 incident that said, next time I call you into my office, 21 you're really going to get it, there's going to be some 22 sort of significant discipline. 23 Q. This is a verbatim conversation you had with 24 Captain Storton? 25 A. Obviously, it's not verbatim. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1284 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 188 1 Q. Okay. This is paraphrased. So I need to take 2 this down very carefully. This is what he said? 3 A. To that effect, yes. 4 Q. Okay. And so is this in your memo somewhere, 5 also? 6 A. No. 7 Q. Okay. And so this is how the Bentley IA 8 started? 9 A. Correct. 10 Q. Okay. And so this is why this memo is dated 11 after my client was put on administrative leave? 12 A. Yes. 13 Q. So he's put on administrative leave after the 14 CAT investigation in December, even though that happens 15 in October, right? 16 A. The CAT incident? 17 Q. Right. 18 A. Correct. That happened in October. 19 Q. Okay. And in December, you are now writing 20 this memo about something that happened eight months 21 before, right? 22 A. Yes. 23 Q. Okay. Where you say, "no further action is 24 taken by me," correct? 25 A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1285 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 189 1 Q. You believe he had sincere remorse for this 2 joke, or whatever, right? 3 A. I believe he did. 4 Q. "He," being Officer Waddell, and whatever else 5 you say in here, right, that this was a joke, correct? 6 A. That's what my belief was at the time, yes. 7 Q. So in December of 2013, you believed this was 8 still a joke, right? 9 A. No. What that stated was that, in February of 10 2013, I believed he was playing a joke. 11 Q. Okay. And only up until the point where now he 12 needs to promote to -- or wants to promote to detective, 13 suddenly, it's concerning you, was what your testimony 14 was yesterday, right? 15 A. Absolutely. 16 Q. So the minute he needs to promote, it's a 17 problem, but not before, right? 18 A. Well, that's misstating what I said. 19 Q. Okay. Well, the transcript will say. 20 And who was the IA investigator on the Bentley 21 case? 22 A. It was assigned to Lieutenant Proll. 23 Q. And during that time, you knew exactly when 24 Officer Waddell's interview was, right? 25 A. I have no idea when his interview was. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1286 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 190 1 Q. You didn't know it was the very next day? 2 A. I have -- I don't know what you're talking 3 about. 4 Q. You don't? 5 A. No. 6 Q. Did you read the transcript from that 7 interview, too, when you were on the plane? 8 A. What interview? 9 Q. Your interview with Lieutenant Proll. 10 A. I read one transcript of my first interview 11 with Lieutenant Proll. 12 Q. You did? 13 A. Yes. 14 Q. Do you remember what you said? 15 A. Some of it, yes. It was a pretty long 16 interview. So I don't remember it all verbatim. 17 Q. Did you listen to the audio? 18 A. No. 19 Q. Did you tell him that you were going to e-mail 20 him suggested questions and all of that? Do you 21 remember that part? 22 A. Yes. But that was for an interview that was to 23 take place, I think, in a week or two following that 24 interview. 25 Q. Were you helping him as the witness or as an IA Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1287 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 191 1 investigator? 2 A. He asked me if I had any other information that 3 I thought might be relevant to his interview with 4 Mr. Waddell, yes. 5 Q. Well, is that the same thing as suggesting 6 questions or is that information? 7 A. I don't know what you're asking. 8 Q. Okay. And you know an attorney by the name of 9 Allison Berry Wilkinson, right? 10 A. Yes. 11 Q. How well do you know her? 12 A. We're acquaintances. We worked on some cases 13 together. 14 THE HEARING OFFICER: Allison Berry, you said? 15 MS. CASTILLO: B- E-R- R-Y. Do you want to spell 16 her last name? 17 THE WITNESS: I'm not sure of the correct 18 spelling of it. 19 THE HEARING OFFICER: You said Wilkinson? 20 MS. CASTILLO: Yes. I don't know the correct 21 spelling, either. 22 MR. PALMER: I do. W-I-L-K-I-N-S-O-N. 23 THE HEARING OFFICER: Okay. 24 BY MS. CASTILLO: 25 Q. So that IA school that you testified about at Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1288 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 192 1 the Bay Area yesterday, do you recall that? 2 A. Yes. 3 Q. Okay. And do you recall going up to her and 4 asking her about Officer Waddell's case at the IA 5 school? 6 A. We may -- we didn't talk specifics about it. 7 Q. You don't remember going up to her at the first 8 break and asking her about Officer Waddell's case? 9 A. No. We had a conversation at the end of the 10 day at that school. 11 Q. Oh. 12 A. And there was nothing specific talked about the 13 case. It was more of, hey, at some point, when this 14 case is over, I'd like to get some feedback from you on 15 things I could have done differently or better, yes. 16 Q. You didn't ask her about the Brady list and 17 Officer Waddell and this case, knowing that he was her 18 attorney? 19 A. No. You're misstating our conversation. 20 Q. No. I'm asking you, did you do that? 21 A. No. 22 Q. Okay. You knew he was her attorney, though, 23 right? 24 A. Yes. 25 Q. So, yesterday, you testified that you and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1289 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 193 1 Lieutenant Smith were very concerned about Officer 2 Waddell and burnout, OT burnout. Do you remember that? 3 A. I said that I talked to Lieutenant Smith 4 because I was concerned about burnout. 5 Q. Okay. And you did an assessment of he was too 6 tired, right? 7 A. That was my -- my belief, yes. 8 Q. Did you know that after your concerns around 9 October, that week of October 12th through 19th, through 10 the time you were -- up until the time he was put on 11 administrative leave, that he worked an additional 59 12 hours of CAT? 13 A. I don't know anything about that. 14 Q. That would have been approved by Lieutenant 15 Smith, right? 16 A. It could have been approved by any number of 17 supervisors. 18 Q. Okay. Who was in charge of CAT, again? 19 A. At that time, Lieutenant Smith was working on 20 it, but then there was probably a time when he rotated 21 back to nights and Lieutenant Proll started working on 22 it. 23 Q. So either one of those two individuals? 24 A. I believe any number of supervisors could have 25 approved overtime for CAT. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1290 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 194 1 Q. And this was at the time when Officer Waddell 2 was under investigation for lying about overtime and if 3 he had been approved for CAT, coming in earlier or 4 later, or whatever? 5 A. I'm not exactly sure what time you're 6 referencing for overtime. 7 Q. I'm sorry. After the October 19th 8 conversations. 9 A. I'm not -- I have no idea what your question is 10 right now. I'm sorry. 11 Q. It's okay. I'll withdraw it. 12 Did you know that between that time period of 13 October 19th through the time he was put on 14 administrative leave, that he worked 148.1 hours of 15 overtime, total, additional? 16 A. Again, I have no idea how much overtime he 17 worked. 18 Q. But I thought you were really concerned about 19 it, personally concerned about it. 20 A. Okay. 21 Q. Do you agree that you were very concerned about 22 it, but you don't know how much overtime he worked? 23 A. No. 24 MR. PALMER: Objection. Relevance. This 25 witness doesn't have the authority to put an officer on Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1291 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 195 1 administrative leave with pay. So this interim of time 2 doesn't matter. 3 MS. CASTILLO: I'm not asking about his 4 administrative leave. I'm asking about his overtime. 5 THE HEARING OFFICER: I'm going to allow it. I 6 mean, he did express interest in that. If he doesn't 7 know the details, he doesn't know the details. 8 MR. PALMER: I continue my objection because 9 this witness has been on record that he doesn't 10 authorize overtime to be worked. So all he can do is do 11 a memo. Somebody above him -- 12 THE HEARING OFFICER: I understand. I'm going 13 to allow this. Go ahead. 14 THE WITNESS: What was your question? 15 MS. CASTILLO: Can I have it read back, please? 16 (Record read by the court reporter.) 17 THE WITNESS: I think you're misstating what I 18 said. Would you like me to restate my belief at the 19 time? 20 THE HEARING OFFICER: Well, state what it is. 21 THE WITNESS: I believe he was getting burnt 22 out on the overtime and was not being as proactive as he 23 should have been for that assignment and that's why I 24 brought it to Lieutenant Smith's attention. I believed 25 he was milking the overtime because of a vacation that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1292 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 196 1 he had pending and he was trying to collect extra money 2 for that vacation. 3 BY MS. CASTILLO: 4 Q. Where was he going on vacation? 5 A. I believe Italy or Paris. 6 Q. You know that was in June, right, the June 7 before? 8 A. I don't know when that was. 9 Q. Okay. Well, it was in June before October. 10 So -- 11 MR. PALMER: Objection. There's no evidence of 12 that. 13 THE HEARING OFFICER: Yeah. You don't need to 14 testify, Counsel. 15 BY MS. CASTILLO: 16 Q. Do you know that it was in June 2013 when that 17 vacation to Italy was? 18 A. No, I don't. 19 Q. Did you check when this vacation was that you 20 were concerned about? 21 A. The vacation, really, has no relevance on what 22 my concern was. My concern was he was working too much 23 overtime and wasn't being as proactive as that 24 assignment required and that's why I brought it to the 25 attention of Lieutenant Smith. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1293 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 197 1 Q. Then why have you just testified about the 2 vacation to Italy? 3 A. I thought that was around the same time frame. 4 He was working overtime for that trip, as well, I know. 5 Q. Did you document any of these concerns 6 anywhere? 7 A. No. I talked about it with Lieutenant Smith. 8 Q. Okay. My question was, did you document any of 9 these concerns in a supervisor's log? 10 A. No. I didn't write it down anywhere. 11 Q. In an e-mail, maybe? 12 A. Still no. 13 MS. CASTILLO: Okay. I guess, this would be 14 Appellant's B. 15 THE HEARING OFFICER: Thank you. Appellant's B 16 looks like it's also a two-page document. Looks like 17 it's a -- is this a copy of an e-mail? 18 MS. CASTILLO: Yes. 19 THE HEARING OFFICER: All right. Looks like 20 it's from Sergeant Pfarr to Officer Waddell, dated 21 November 8, 2013. 22 BY MS. CASTILLO: 23 Q. Did you author this e-mail? 24 A. Yes, I did. 25 Q. Did you send this to Officer Waddell, amongst Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1294 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 198 1 others? 2 A. Yes, I did. 3 Q. So in November 2013, you're continuing to 4 schedule Officer Waddell for CAT overtime, correct? 5 A. I'm not scheduling him. Lieutenant Smith was. 6 I sent this e-mail out on his behalf. 7 Q. Okay. So you're continuing to send e-mails on 8 his behalf, on Lieutenant Smith's behalf, with Officer 9 Waddell scheduled for multiple CAT shifts, correct? 10 A. Yes. 11 Q. And this is, again, after you had brought this 12 to the attention of Lieutenant Smith that he's just 13 working a lot of these CAT shifts, right? 14 A. Correct. 15 Q. And so he's scheduled on the 9th of November, 16 the 11th of November -- or I'm sorry -- the 17th of 17 November, right? 18 A. Correct. 19 Q. And then the 18th of November, right? 20 A. Correct. 21 Q. The 23rd of November, right? 22 A. Yes. 23 Q. The 11th -- I'm sorry. The 24th of November, 24 right? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1295 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 199 1 Q. And, at that time, he's just the only officer, 2 correct? 3 A. On November 24th, he's the only officer. 4 Q. Okay. So when we talked about yesterday about 5 there just being one officer assigned on CAT, this is an 6 instance, correct? 7 A. Correct. 8 Q. Okay. And then on the 1st of December, right? 9 A. Yes. 10 Q. And, again, he's just a one-officer CAT patrol, 11 right? 12 A. Yes. 13 Q. Okay. And then we see him scheduled on the 8th 14 of December, right? 15 A. Yes. 16 Q. And the 9th of December, right? 17 A. Yes. 18 Q. And on the 10th of December, right? 19 A. Yes. 20 Q. And he's a single CAT patrol again on that day, 21 right? 22 A. Yes. 23 Q. Okay. And then on the 15th of December, right? 24 A. Yes. 25 Q. And on the 16th of December, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1296 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 200 1 A. Yes. 2 Q. Okay. And then on the 22nd of December, right? 3 A. Yes. 4 Q. The 23rd of December, right? 5 A. Yes. 6 Q. The 30th of December, right? 7 A. Yes. 8 Q. But he was put on administrative leave on the 9 20th of December, right? 10 A. I don't know what date he was put on 11 administrative leave. 12 Q. Okay. On the days that there were one officer, 13 so the 12th, 24th, 1st, 10th, 22nd, is that because 14 there were no other officers that signed up? 15 A. That would be my assumption, yes. 16 Q. Could you have ordered someone else in? 17 A. Typically, I would not order somebody in to 18 work a CAT overtime, no. 19 Q. Okay. In this e-mail, it looks like one -- a 20 couple of sentences -- if you want to read the paragraph 21 to refresh your memory, you can. 22 A. Okay. 23 Q. It says, "Please do not use these shifts to 24 complete reports or conduct follow-up from the regular 25 patrol shifts." Do you see that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1297 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 201 1 A. Yes. 2 Q. So when you were talking yesterday about 3 Stahnke doing detective work because he was the hard, 4 hard worker, do you remember that? 5 A. Yes. 6 Q. Were you now discouraging what you said he was 7 doing yesterday about doing that other detective work? 8 A. Yes. As a standard operating method, yes. 9 Q. Okay. And where you're saying that Lieutenant 10 Smith is tracking the stats of the CAT officers, do you 11 see that? 12 A. Yes. 13 Q. You guys -- the police department has stats? 14 A. Yes. The police department keeps stats. 15 Q. So when you were concerned about the 16 proactivity of Officer Waddell because you didn't hear 17 him on the radio, could you have checked his stats to 18 see if he was proactive versus just what you heard when 19 you were listening for his particular voice? 20 A. I couldn't have checked him that day, no. 21 Q. Okay. But since you were clearly investigating 22 if he was proactive or not, could you have done more 23 research and looked to see if he was proactive by 24 looking at the number of citations, arrests, FIs and 25 reports written, according to this e-mail, which Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1298 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 202 1 describes the stats that are -- 2 A. I was not investigating -- 3 MR. PALMER: I object to the premise of the 4 question. He wasn't clearly investigating his 5 proactivity. He made a judgment based upon the lack of 6 activity on the radio. 7 THE HEARING OFFICER: Were you conducting an 8 investigation? That's the word she used. 9 THE WITNESS: I was not. 10 THE HEARING OFFICER: Okay. So it assumes a 11 fact not in evidence, most likely. You want to 12 rephrase? 13 BY MS. CASTILLO: 14 Q. Sure. Because you were listening intently for 15 his voice -- 16 THE HEARING OFFICER: Well, you don't need to 17 put a reason in there. You could just ask him if he 18 could have done it. 19 BY MS. CASTILLO: 20 Q. Well, could you have done it? 21 THE HEARING OFFICER: And, I assume, the answer 22 is yes. 23 THE WITNESS: At a later time, I could have, 24 yes. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1299 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 203 1 BY MS. CASTILLO: 2 Q. Well, prior to bringing all the concerns about 3 not hearing him on the radio and being concerned about 4 his lack of proactivity, could you have found proof that 5 he was not proactive? 6 A. No. That's not how our stats are kept. 7 Q. How are they kept? 8 A. When citations and FIs are entered into the 9 Spillman, S- P-I-L-L-M-A-N, it's our in-house computer 10 system, those are entered throughout the month and at 11 the end of the month and then those stats can be 12 tallied. 13 So the days leading up to my concern before I 14 talked to Lieutenant Smith, I would not have had access 15 to those numbers. They wouldn't have been inputted 16 yet. 17 Q. Okay. 18 THE HEARING OFFICER: What are FIs? 19 THE WITNESS: Field interview cards. Documents 20 if we just make a consensual contact with somebody 21 without probable cause or anything like that. 22 THE HEARING OFFICER: You could be just talking 23 to anybody on the street? 24 THE WITNESS: Correct. 25 THE HEARING OFFICER: Okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1300 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 204 1 MS. CASTILLO: Can I have one second? 2 THE HEARING OFFICER: You may. 3 BY MS. CASTILLO: 4 Q. Was sending e-mails on behalf of the CAT 5 supervisor one of your collateral duties or is it just 6 because you worked on this date? 7 A. It was a collateral duty assigned to me by 8 Lieutenant Smith for this specific e-mail, not on a 9 regular basis. 10 Q. Why for this specific e-mail? 11 A. I believe he was -- he was away from the 12 office. I don't know if he was on vacation or what he 13 was doing, but he was away, he asked me to make 14 notifications for the officers, the two senior officers 15 that had signed up on the sign-up sheet upstairs that we 16 talked about yesterday, e-mail them and give them a 17 notice of expectations during that -- those overtime 18 shifts. 19 Q. And who were those two senior officers? 20 A. It would be the officers listed in this list. 21 Q. So all these officers are the senior officers? 22 A. No. So for November 9th, Officer Waddell and 23 Officer Anglehart were the senior officers that signed 24 up for those dates. 25 Q. Okay. So that's why this went out to all those Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1301 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 205 1 officers listed then? 2 A. It went out because they were chosen to work a 3 specific day based on their seniority. 4 Q. So everyone who was listed on this e-mail had 5 already been approved to work these shifts; is that a 6 correct statement? 7 A. Yes. 8 Q. Okay. So do you recall yesterday when you were 9 talking about an officer by the name of Cory Pierce? 10 A. Yes. 11 Q. Okay. Who is Cory Pierce? 12 A. He's a former officer. 13 Q. And he's the one that you were talking about a 14 federal indictment, or something? 15 A. Yes. 16 Q. Can you explain how that is like my client? 17 Because you compared the two. 18 A. I compared the two in the fact that Mr. Pierce 19 was assigned to a narcotics position that allowed for a 20 lot of unsupervised work and my concern was Mr. Waddell 21 was putting in for that same assignment, and if he 22 displayed the behaviors that he did when he took the 23 emblem off the Bentley, I felt that could become an 24 issue for the department if he was in that same position 25 as Mr. Pierce had been in. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1302 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 206 1 Q. Okay. And so did Mr. Pierce get arrested? 2 A. Yes, he did. 3 Q. When did he get arrested? 4 A. I don't know the date. 5 Q. February 5th, 2013, does that sound about 6 right? 7 A. I don't know. 8 Q. If that was the correct date, that would have 9 been right before the Bentley incident, right? 10 A. Yes. 11 Q. Okay. And that would have been a big deal in 12 San Luis Obispo, right? 13 A. What would have been a big deal? 14 Q. One of your police officers getting arrested by 15 the FBI. 16 A. Yes, it was a -- it was a big deal. 17 Q. Okay. So if that would have been a red flag 18 that this officer just got arrested in this task force 19 for being in this narcotic issue thing and that was a 20 red flag to you some ten months later, why wasn't it a 21 red flag in February when the Bentley emblem problem was 22 before you? 23 THE HEARING OFFICER: Well, first of all, let's 24 have the witness agree with the term, red flag. He said 25 it was a big deal. I don't know if that means the same Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1303 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 207 1 thing to him. 2 MS. CASTILLO: Okay. Well, big deal sounds 3 even better. 4 THE WITNESS: Um, no. I was naive and I didn't 5 recognize the potential issue. I was inexperienced and 6 it didn't dawn on me. 7 BY MS. CASTILLO: 8 Q. As of February 2013, how long had you been a 9 police officer? 10 A. About three weeks -- or a sergeant, not a 11 police officer. 12 Q. No. I'm talking about a police officer. 13 A. For about 13 years. 14 Q. Okay. You've investigated crimes before, 15 right? 16 A. Yes. 17 Q. Have you investigated chop shops? 18 A. No. 19 Q. No. Do you know what one is? 20 A. Yes. 21 Q. Have you investigated vehicle crimes? 22 A. Yes. I've investigated crimes involving 23 vehicles. 24 Q. What kind? 25 A. All kinds. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1304 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 208 1 Q. All kinds? 2 A. Thefts from vehicles, vandalisms to vehicles, 3 accidents involving vehicles. 4 Q. So vandalisms to vehicles. And you know the 5 elements of those crimes? 6 A. Yes. 7 Q. Okay. And so -- and in February of 2013, you 8 didn't consider that it could be a potential crime, but 9 then, maybe, in December, after it became an issue 10 because of this texting thing and potential verbal 11 counseling, slash, progressive discipline, now -- then 12 it became a big deal? 13 MR. PALMER: Objection. Unintelligible, 14 compound. 15 THE HEARING OFFICER: Try that again. 16 BY MS. CASTILLO: 17 Q. Well, it only became a big deal in December 18 when it was brought to your attention by Captain Storton 19 based on potential verbal counseling, slash, aggressive 20 discipline? 21 A. No. 22 Q. Okay. Then tell me when it became a big deal 23 to you. 24 A. Again, it became a big deal to me when he put 25 in for this investigative position, or positions. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1305 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 209 1 Q. Not after -- okay. So not when he was 2 arresting people in the ten months leading up to, I 3 guess, his administrative leave, right? 4 A. No. Again, it was when he applied for these 5 investigative positions. 6 Q. Okay. So not in the time he was going to court 7 and testifying in court cases, either, right? 8 A. Correct. 9 Q. Okay. It's only when he needs to be an 10 investigator, not a police officer, right? 11 A. No. You're misstating what I'm saying. 12 Q. Once it became a bigger deal, did you ever go 13 and make a report to the DA's office? 14 A. No. 15 Q. What about the attorney general? 16 A. Nope. 17 Q. Because you were a brand new supervisor, right? 18 A. When? At one time, yes, I was a brand new 19 supervisor. 20 Q. Okay. But then, ten months later, it was being 21 handled by a different supervisor, right? 22 A. What was? 23 Q. Well, the investigation. 24 A. I don't know what you're talking about. 25 Q. The Bentley investigation. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1306 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 210 1 A. It was assigned to Lieutenant Proll after it 2 was brought to the attention of Captain Storton after 3 the lying incident, if that's what you're asking. 4 Q. And how, again, was it brought to the attention 5 of Captain Storton? 6 A. I told him. 7 Q. I thought he came to you and asked for a memo. 8 A. He called me into his office and asked me some 9 questions, and as a result of those questions, my 10 answers prompted him to ask me to write a memorandum. 11 Q. And then how did he know about the Bentley 12 incident, though, if he called you into his office? How 13 did he know to call you in? 14 A. I have no idea why he -- how he knew to call me 15 in. I don't know what he was thinking. 16 Q. This had happened eight months before and there 17 was no memo. Where did this come from to Captain 18 Storton? 19 THE HEARING OFFICER: If you know. 20 THE WITNESS: My belief is that people were -- 21 Mr. Waddell had been out on administrative leave for a 22 long time and people were wondering why and I believe 23 somebody that was at the scene that night said I bet it 24 was because of this. I don't know that to be absolute 25 fact, but I believe that's probably how Captain Storton Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1307 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 211 1 came to learn about that incident. 2 BY MS. CASTILLO: 3 Q. Do you know what day Officer Waddell went out 4 on admin leave? 5 A. I don't. 6 Q. You just said a long time. 7 A. I believe, at that point, my recollection is he 8 had been out for some period of time. I don't know how 9 long, though. 10 Q. What is some period of time? 11 A. More than a day. People were wondering why he 12 was out and that's the assumption to why I believe 13 Captain Storton learned of that incident. 14 Q. So people just started talking about things 15 from eight months before? 16 A. I believe that's what happened. I don't know 17 that to be a fact, though. You asked what my opinion 18 was. 19 Q. Did you review your transcripts of your 20 interviews last night when you left the hearing? 21 A. No. 22 Q. Can I have his Bentley transcript? Thanks. 23 THE HEARING OFFICER: Do you need a minute to 24 look things over? 25 MS. CASTILLO: Yeah, I do. Do you want to -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1308 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 212 1 can we take a -- 2 THE HEARING OFFICER: Do you want to take 3 five? 4 MS. CASTILLO: -- five-minute break? 5 THE HEARING OFFICER: Why don't we take a five. 6 (Recess.) 7 THE HEARING OFFICER: All right. More 8 cross-examination? 9 MS. CASTILLO: Yes. 10 THE HEARING OFFICER: Go ahead. 11 BY MS. CASTILLO: 12 Q. Okay. So we're talking about the Bentley case. 13 Okay? 14 A. Okay. 15 Q. And so, now, Proll, is he still employed by the 16 City of San Luis Obispo? 17 A. Proll? 18 Q. Yes. 19 A. Yes. 20 Q. And what is his capacity? 21 A. He's the night watch lieutenant, currently. 22 Q. Okay. And he did an investigation for the IA 23 investigation for the Bentley case, right? 24 A. Yes. 25 Q. Okay. And so you were interviewed by him? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1309 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 213 1 A. Yes. 2 Q. Okay. And so you recall in your interview with 3 him where he says, "So what I really need you to do is 4 think and, you know, with -- I'm just going to be honest 5 with you. I think if you personally minimize this as a 6 practical joke, it kind of goes easier on you." Do you 7 remember that statement? 8 A. Yes. 9 Q. And you agree, "Absolutely," right? 10 A. Yes. 11 Q. And he says, "I'm just saying you didn't report 12 a theft," right? You remember reading that, right? 13 A. Correct. 14 Q. Okay. And you say, "I completely agree," 15 right? 16 A. Yes. I never reported a theft. 17 Q. Okay. And he says, "I'm just kind of getting 18 into this a little more delicately," right? 19 A. I don't know. 20 Q. Well, I can show you. You have the transcript 21 in the city's exhibit there, as well. I don't know -- 22 THE HEARING OFFICER: Do you want him to look 23 at the exhibit number? 24 MS. CASTILLO: Yeah. 17. I don't know what 25 page it is. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1310 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 214 1 THE WITNESS: This is a different transcript 2 than what you're reading off of, though -- 3 MS. CASTILLO: Right. 4 THE WITNESS: -- so I don't know what your 5 transcript says. 6 MS. CASTILLO: I don't know, either. 7 THE WITNESS: You don't know what your 8 transcript says? 9 MS. CASTILLO: I know what mine is. Mine is 10 certified. I don't know what theirs says. I can show 11 you mine. We can read it together. 12 MR. PALMER: We all need to be on the same 13 page. 14 MS. CASTILLO: Yeah. I don't know what yours 15 says. 16 THE HEARING OFFICER: Did you want to mark 17 copies of that and put that in? 18 MS. CASTILLO: Well, I have certified ones, but 19 I don't know -- I have, obviously, the certified one for 20 you and I have -- I mean, I can give you a copy. 21 THE HEARING OFFICER: We have to have one for 22 Mr. Palmer, too. 23 MS. CASTILLO: Yeah. I have it. 24 THE HEARING OFFICER: You don't need to mark it 25 and you don't need to put it in, but if you're going to, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1311 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 215 1 we might as well do it now. 2 MS. CASTILLO: Okay. This one is yours. 3 THE HEARING OFFICER: Okay. So -- 4 MS. CASTILLO: I guess we could just label it 5 then, right? 6 THE HEARING OFFICER: Mark it as C, Appellant's 7 C. So Appellant's C is going to be the transcript of 8 the audio recording of Sergeant Chad Pfarr, dated 9 January 25th. It says here it was transcribed June 17, 10 2011. It's from Cal Pacific Reporting. So we're 11 marking that as Appellant's C. 12 MS. CASTILLO: And I'm on Page 27, once 13 everyone gets their copy. The reason why I haven't -- I 14 mean, I was going to attach the audio, also, to the 15 transcript. So -- and have kind of like an A sub 16 whatever, but -- 17 THE HEARING OFFICER: Well, we can always mark 18 this as Appellant's C-1, and if you have the audio 19 later, we can make it C-2. 20 MS. CASTILLO: Okay. Perfect. 21 THE HEARING OFFICER: So let's mark this as 22 C-1. 23 MS. CASTILLO: I'll just give over this to 24 Mr. Palmer and I'll keep the original. 25 MR. PALMER: Thank you. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1312 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 216 1 MS. CASTILLO: Uh-huh. But it looks like 18 on 2 your book. 3 MR. PALMER: 27 is yours? 4 MS. CASTILLO: 27 is ours. It starts on 17 on 5 yours, this conversation, and then the -- are we back? 6 I didn't know if we were back on the record. 7 THE COURT: If you're ready. Okay. So we're 8 back on the record. Go ahead. If we were off. I don't 9 know if we were or not. 10 MS. CASTILLO: I don't know, either. Sorry. 11 THE HEARING OFFICER: Go ahead. 12 BY MS. CASTILLO: 13 Q. It talks about, "It's a lesser screw-up if it's 14 a practical joke that's perpetrated." You see that, 15 right? 16 A. I see where Paul says, "I'm just trying to get 17 to this a little more delicately." That was the last 18 thing I remember you talking about. 19 Q. Okay. Then we can continue reading. And you 20 say, "I see where you're going with this," essentially, 21 right? Could you keep reading? 22 A. Yes. 23 Q. Okay. So what's that part of the investigation 24 about? What's that line of questioning about? Put that 25 into context for us, please. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1313 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 217 1 A. You'll have to ask Lieutenant Proll where he 2 was going with it. 3 Q. Well, you said, "I see where you're going with 4 it." So you understood, right? 5 A. I think he's trying to get if I made everybody 6 believe that this was a joke and I minimized what 7 Mr. Waddell did, it would keep me from getting in 8 trouble because that would indicate that I tended to 9 cover up a crime on his behalf. 10 Q. So that what he's saying when it says, "I think 11 if you personally minimize this as a practical joke, it 12 goes easier on you"? 13 A. Well, sure. 14 Q. Like you're covering up a crime? 15 A. I think that's what his -- I think that's where 16 he was going with it, but you'll have to ask him, 17 specifically. 18 Q. So that's the plan going forward? 19 MR. PALMER: Objection. Unintelligible, vague 20 and ambiguous. 21 THE HEARING OFFICER: What's the plan? 22 BY MS. CASTILLO: 23 Q. Well, was that, kind of, the plan going 24 forward? Is that what you understood? 25 A. I didn't know we made a plan. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1314 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 218 1 Q. Well, what does it mean where it says, "I'm 2 just kind of suppositioning this"? I'm looking at Line 3 21 here. Sorry. And you say, "No. I see where you're 4 going. I see what you're saying, though." What does 5 that mean? So if you're following along, right there. 6 A. What I just told you. 7 Q. I'm still not clear. So can you explain it 8 again? 9 THE HEARING OFFICER: Well, you should ask him 10 what -- what part of what he said you didn't get. 11 BY MS. CASTILLO: 12 Q. Right. If it says -- where he's saying, "I'm 13 getting into this just a little more delicately," what 14 was -- what was he getting into? 15 A. I have no idea. 16 Q. Did you ask for clarification if you didn't 17 know what he was talking about? 18 A. No, I didn't. 19 Q. At this point, had you gone to IA investigator 20 school? 21 A. Yes. 22 Q. So you knew that -- so you knew how to conduct 23 IAs, right? 24 A. I've been to a class that taught me how to 25 conduct IAs, yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1315 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 219 1 Q. Okay. And you've been interviewed before, 2 right? 3 A. Yes, I've been interviewed. 4 Q. And you've conducted interviews before, right? 5 A. Yes. 6 Q. And you didn't know what he meant by a 7 question, but you answered it, anyway? 8 A. No. I said no. 9 Q. Where did you say no? 10 A. Right after he said, "I'm trying to get into 11 this a little more delicately." 12 Q. So Line 13 on my certified transcript says, 13 "And so I'm just kind of getting into this a little more 14 delicately, too," and your answer is, "No, no. I -- 15 hey, I screwed up. I'll be the first one to say that," 16 and he says, "Right," and then you say, "and," and his 17 next question is, "But it is a lesser screw-up if this 18 practical joke gets perpetrated, and then when you 19 reported to them, I'm just kind of suppositioning this 20 because," and then your answer is, "No. I see where 21 you're going. I see what you're saying, though." 22 So what -- is it your testimony today that you 23 didn't understand this line of questioning? 24 A. No. That's not what I said. 25 Q. Okay. So what did you -- what is it that you Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1316 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 220 1 understood where he was going and what did you see what 2 he was saying? 3 MR. PALMER: Objection. Asked and answered. 4 THE HEARING OFFICER: I'm going to overrule it. 5 You can answer that. 6 THE WITNESS: If I minimize my knowledge at the 7 time that I knew Kevin was intentionally stealing car 8 parts and I didn't report it, then I would be covering 9 up a crime on his behalf. That's where I believed he 10 was going with that. 11 BY MS. CASTILLO: 12 Q. So is that what you did? Did you minimize your 13 knowledge that Kevin was intentionally stealing car 14 parts and covering it up? 15 A. No. Not at the time. 16 Q. Did you do that later? 17 A. No. I believe now he was stealing car parts. 18 Q. And based on what evidence did you change your 19 entire theory from joke to theft? 20 A. My experience in the lack -- or the -- my 21 naivety at the time. 22 Q. Okay. Officer -- or, Sergeant Pfarr, what 23 naivety -- or what change -- what -- okay. 24 Can you explain the naivety that you're relying 25 on as evidentiary, or was changed? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1317 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 221 1 A. I don't know what you're asking. 2 Q. Okay. I don't, either. 3 Are you saying that once this thing happened in 4 October, suddenly, that whatever happened in February, 5 eight months prior, suddenly, now materialized into a 6 crime? 7 THE HEARING OFFICER: You know, we've gone over 8 this quite a bit. Your theory, I assume, is going to be 9 that he keeps -- he should have done something 10 contemporaneously to the event, and he testified 11 yesterday and again today, due to his naivety, he 12 didn't. So what more are you going to get out of him? 13 MS. CASTILLO: Good question. Very good 14 question. 15 THE HEARING OFFICER: Okay. So let's move on 16 to something else. 17 BY MS. CASTILLO: 18 Q. Okay. What page is that? 28. Okay. Next 19 page, please. 20 So then another officer takes some 21 responsibility for this joke, as well, right? 22 A. I don't know about that. 23 Q. Well, you were informed by Lieutenant Proll 24 that another officer calling Kevany takes some 25 responsibility for this, or for part of the joke, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1318 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 222 1 A. I think you're misstating what information was 2 being given to me at the time. 3 THE HEARING OFFICER: Is there a particular 4 line in here that suggests that? 5 MS. CASTILLO: Yes. 6 THE HEARING OFFICER: Where? 7 BY MS. CASTILLO: 8 Q. Line 4, Page 30. Lieutenant Proll says, "The 9 interesting" -- "The other interesting thing is Colleen 10 takes a lot more responsibility for knowing about doing 11 this than it was just Kevin. I mean, she almost -- she 12 actually said, we -- we were doing -- we, and I'm, like, 13 wow." So -- 14 A. I'm familiar with what you're talking about. I 15 don't know what page it is on this, but I'm familiar 16 with what you're talking about. 17 THE HEARING OFFICER: Who is Colleen? 18 THE WITNESS: She was a traffic officer that 19 responded as part of the traffic accident investigation 20 team. She was present during the second visit to the 21 scene that I had. 22 THE HEARING OFFICER: She's an officer. And 23 last name? 24 THE WITNESS: Kevany. 25 THE HEARING OFFICER: Oh, okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1319 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 223 1 THE WITNESS: She was the one giving me the 2 walk-through and showing me what their findings were at 3 the conclusion of their investigation. 4 THE HEARING OFFICER: Okay. Got it. 5 BY MS. CASTILLO: 6 Q. Okay. And so it's your Page 19, if that helps 7 you. 8 MR. PALMER: Starts on 18. 9 BY MS. CASTILLO: 10 Q. So did you have any naivety when it came to 11 Ms. Kevany? 12 MR. PALMER: Objection. Vague and ambiguous. 13 THE HEARING OFFICER: I'm not following that, 14 either. 15 BY MS. CASTILLO: 16 Q. Well, you believed certain things were a joke 17 and then became crimes based on your naivety, right? 18 A. Yes. 19 Q. Okay. If Lieutenant Proll told you that he 20 determined that other people, such as Colleen Kevany, 21 took responsibility for knowing about this joke and all 22 of that, did you also have naive feelings about 23 Ms. Kevany? 24 A. I did have feelings. 25 Q. Naive feelings, I mean. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1320 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 224 1 A. No. 2 Q. Did you write memos about her? 3 A. No. I testified about her involvement in this 4 interview. 5 Q. Okay. But why not write a memo about her? 6 A. Because I didn't feel she was, in any way, 7 involved in vandalizing a car or stealing parts from a 8 car. 9 Q. Okay. But you were providing information about 10 involvement during the interview with Lieutenant Proll, 11 right? 12 A. Yes. 13 Q. Okay. And during this interview, you talk 14 about a collection. Do you recall that? 15 A. Yes. 16 Q. Okay. And I didn't read anything about the 17 collection in your memo. Why wasn't that in your memo? 18 A. I just didn't include it. I don't know. There 19 was a lot that came out in the interview that I didn't 20 include in that memo. 21 Q. Okay. And there was stuff in -- or there's 22 discussion in here about DERMO. Do you know what DERMO 23 is? 24 A. Yes. 25 Q. What is DERMO? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1321 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 225 1 A. It's an acronym. I don't recall what the exact 2 acronym is, but it's the acquisition of surplus military 3 equipment for law enforcement use. 4 Q. Okay. And why is that discussed in here? 5 MR. PALMER: Objection. Speculation. It's 6 Lieutenant Proll's interview. 7 THE HEARING OFFICER: Well, if you know. And, 8 also, by, "here," are you referring to Exhibit C? 9 MS. CASTILLO: I'm referring to Appellant's 10 Exhibit C, which is also your interview with Lieutenant 11 Proll. I can lay some foundation. 12 BY MS. CASTILLO: 13 Q. Who brought up DERMO in the Bentley 14 investigation of Officer Waddell? 15 A. I think I was the first one to mention DERMO, 16 but it was in response to a question asked by Lieutenant 17 Proll. 18 Q. Okay. And so is DERMO part of a car 19 investigation? 20 A. It became part of the car accident, I suppose. 21 Q. Is that something that you do to investigate an 22 accident? 23 A. I'm not following what you're asking. 24 Q. Well, I don't know -- well, what is DERMO? 25 A. It's the acquisition of surplus military Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1322 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 226 1 equipment for law enforcement use. 2 Q. So why was that brought up in discussing the 3 Bentley? 4 A. Because Lieutenant Proll asked where this 5 collection may have been kept and he said what areas 6 do -- the subject of his question is, where did I think 7 this collection may be kept. There's a cage that's kept 8 at the police department where we store the surplus 9 military equipment. Officer Berrios and Officer 10 Waddell, at the time, were the only two who had access 11 to that storage area because they were the ones that 12 were running the DERMO program and there's tracking for 13 all that equipment. 14 So those two -- and I believe Captain Staley, 15 actually, could have access if he wanted it, but those 16 two were the two that, primarily, went into this cage. 17 So the thought was is if there is a collection of mass 18 car parts from different incidents that he's collected, 19 that could be a location that they were kept. 20 Q. Do you know if the DERMO cage was ever 21 searched? 22 A. I don't know. 23 Q. Did you -- okay. Mass collection of car parts? 24 What other kinds of car parts did you hear -- well, 25 tell -- where did the collection come up? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1323 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 227 1 A. Your client. 2 Q. And what did he say? 3 A. This will go good in my collection. 4 Q. Okay. And what else did he say? 5 A. A lot of things. I've been around him a lot. 6 I don't know when you're talking about. 7 Q. About the collection. 8 A. I didn't hear him say anything else about the 9 collection, just that these parts would go good in the 10 collection. 11 Q. How far away were you when you heard him say 12 that? 13 A. 20 feet. 14 Q. What were you doing at the time that was said? 15 A. I had been getting the walk-through from 16 Officer Kevany and now we were watching Mr. Waddell talk 17 to the tow truck driver and walk back over to the 18 Bentley. 19 Q. Okay. And -- okay. But you would agree with 20 me that, in February, 100 percent, you believed it was a 21 joke, the Bentley, taking car parts, or whatever? 22 A. Yes. That night, I believed it was a joke. 23 Q. 100 percent? 24 A. Well, no, not 100 percent. 25 Q. Well, your quote in your interview was, "I can Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1324 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 228 1 tell you for sure, that night, it was a joke." 2 A. That was my belief, yes. 3 Q. So you're not 100 percent, but for sure, right? 4 A. I believed it was a joke that night. That's 5 what I'll testify to. 6 Q. Okay. So when you had the conversation with 7 him about -- 8 A. With who? 9 Q. With, I'm sorry, Officer Waddell, about the -- 10 you know, don't do this, it looks bad kind of 11 conversation, do you recall that? 12 A. The basis of that conversation, yes. 13 Q. Okay. That was you verbally counseling him, 14 correct? 15 A. Correct. 16 Q. The quote, I believe, from your internal 17 affairs interview was, "chewed his ass in the office," 18 right? 19 A. I think that's what it says, yes. 20 Q. And you went over all of the ramifications, 21 also, right? 22 A. I went over the ones I could think of at that 23 time. 24 Q. Okay. 25 A. I'm sure it was far greater-reaching than I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1325 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 229 1 ever covered that night or during the interview. 2 Q. And it was a lengthy conversation, right? 3 That's what you told Lieutenant Proll? 4 A. It's not as lengthy as a conversation we've 5 had, but it was longer than a five-minute conversation. 6 MS. CASTILLO: Okay. I think, at this point, 7 we'll probably just wait for the next date with this 8 witness. 9 THE HEARING OFFICER: For the moment, you're 10 done with your cross-examination? 11 MS. CASTILLO: Yes. 12 THE HEARING OFFICER: Okay. So some re-direct? 13 MR. PALMER: Yes. 14 THE HEARING OFFICER: All right. Go ahead. 15 16 REDIRECT EXAMINATION 17 BY MR. PALMER: 18 Q. Sometimes I like to work backwards. Okay, 19 Sergeant? 20 A. Yes, sir. 21 Q. The line of questioning that Ms. Castillo just 22 did with you about your thought on shortly after 23 February 22nd, 2013, that it was more likely a joke, the 24 Bentley issue -- 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1326 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 230 1 Q. -- do you remember that? 2 A. Yes. 3 Q. Whether Mr. Waddell formed the criminal intent 4 to actually steal car parts that night or he was doing 5 it, simply, as a joke to mess with you, as a new 6 sergeant, either which way, in your judgment, is it poor 7 judgment? 8 MS. CASTILLO: Objection. Relevance. He's not 9 a fact-finder, he's not an investigator. 10 THE HEARING OFFICER: Overruled. You can 11 answer. 12 THE WITNESS: Yes, it was poor judgment. 13 BY MR. PALMER: 14 Q. Could that conduct, either which way, 15 potentially, lead to a tarnished image on the department 16 if publicized? 17 A. Yes. 18 Q. Are you familiar with the acronym, CUBO, 19 C- U-B-O, all caps? 20 A. No. 21 Q. Conduct on becoming an officer? 22 A. Yes. 23 Q. Could it also be considered that? 24 A. Yes. 25 Q. Yesterday, you were asked a line of questioning Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1327 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 231 1 by Ms. Castillo about the CAT shift, what I'm bringing 2 to your mind. 3 A. Okay. 4 Q. The general designated hours of the CAT shift 5 were what, again? 6 A. 11: 00 to 4:00 p.m. 7 Q. Okay. And the line of questioning was about 8 there were some occasions when officers were allowed to 9 start the CAT shift at 11: 30 and, maybe, finish at 4:30. 10 Do you recall that? 11 A. Yes. 12 Q. Okay. Could they do that on their own, in 13 other words, the officers do that on their own? 14 A. No. 15 Q. Were they allowed such flexibility on that 16 schedule to just do that on their own? 17 A. No. 18 Q. Would they be allowed to do that only under 19 what circumstances? 20 A. Prior approval. 21 Q. By who? 22 A. A supervisor. 23 Q. You? 24 A. It could have been. 25 Q. Or a lieutenant? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1328 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 232 1 A. Normally. 2 Q. Lieutenant Smith? 3 A. Yes. 4 Q. How far ahead of time? Any specific rule on 5 that? 6 A. Not specifically. 7 Q. Could it have been done that morning? 8 A. It's possible, yes. 9 Q. Hey, Lieutenant, something came up, can I make 10 it in at 11: 30? 11 A. Yes. 12 Q. Could that be done with the sergeant on the 13 shift, as well? 14 A. Yes. 15 Q. Hey, Sergeant, something came up, can I come in 16 at 11: 30? 17 A. Yes. 18 Q. And would you, thinking, in your position, as 19 the watch commander that day, on which a CAT shift 20 overlapped, that if there's some good reason to change 21 the start time from 11: 00 to 11: 30, do you believe, as 22 the sergeant on that shift, you have the authority to 23 excuse the tardy? 24 A. Yes. 25 Q. Did you get a call from Mr. Waddell on October Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1329 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 233 1 19th, prior to 11: 00, asking for you to excuse his 2 tardy? 3 A. No. 4 Q. A text message, some communication? 5 A. No. 6 Q. Do you get a lunch break for a CAT shift? 7 A. Most don't, typically, take a lunch break for a 8 CAT shift. 9 Q. Why? 10 A. Because it's a five-hour overtime shift and 11 paying somebody 45 minutes to go eat lunch during that 12 five-hour proactive enforcement shift is not generally 13 done. 14 Q. Do you have Appellant's A still in front of 15 you? I'm sorry. Appellant's B. 16 A. Yes. I didn't label them, though. Is that 17 the -- 18 THE HEARING OFFICER: That's this one. 19 THE WITNESS: Yes. 20 THE HEARING OFFICER: In fact, I should put 21 a -- yeah. Write Appellant B on that. That would be 22 good. 23 THE WITNESS: And the memorandum, what was that 24 one? 25 THE HEARING OFFICER: That's -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1330 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 234 1 MR. PALMER: A. 2 THE HEARING OFFICER: -- A. 3 MR. PALMER: Okay. Thank you. 4 THE HEARING OFFICER: Thank you. 5 BY MR. PALMER: 6 Q. Appellant's B. 7 A. Yes. 8 Q. There's an introductory paragraph prior to the 9 list. 10 A. Yes. 11 Q. One of the sentences in that paragraph says, 12 "The shifts are from 11: 00 to 16: 00 hours downtown." Do 13 you see that? 14 A. Yes. 15 Q. And it says on foot. 16 A. Yes. 17 Q. So, specifically, the CAT shifts were intended 18 to be on foot patrol? 19 A. Correct. 20 Q. The next sentence talks about not using this 21 CAT shift to complete reports or conduct follow-up. Do 22 you see that? 23 A. Yes. 24 Q. Let me ask a question from the outside, then 25 moving in. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1331 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 235 1 Did you put that sentence in there specifically 2 because of Detective Stahnke? 3 A. No. 4 Q. Okay. What was the original source thought for 5 that sentence to go in there? 6 A. That this time was specifically intended to 7 work on issues affecting the downtown area, not 8 follow-up on previously incompleted work. 9 Q. And was that a concept that was true before 10 October 19th, 2013? 11 A. Yes. 12 Q. When Detective Stahnke had some sort of 13 paperwork in his hand between 11: 00 and 11: 30 that day? 14 A. Yes. 15 Q. Do you know what Detective Stahnke was doing 16 between 11: 00 and 11: 30? 17 A. Not beyond his regular police work. I know he 18 was doing -- he was doing business, police business. 19 Q. As I understood it, correct me if I'm wrong, 20 you just saw him walking down the hallway with some 21 papers in his hands? 22 A. Correct. 23 Q. You don't know what he was doing, do you? 24 A. No. 25 Q. You don't know whether he was on some sort of Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1332 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 236 1 specific assignment that some lieutenant gave to him and 2 you didn't know? 3 A. I didn't know that. 4 Q. Was the reason Detective Stahnke's still there 5 between 11: 00 and 11: 30 was because Mr. Waddell was 6 tardy? 7 A. Yes. 8 Q. Had Mr. Waddell been tardy, do you think 9 Detective Stahnke would have been out on duty on the CAT 10 shift? 11 A. Yes, I do. 12 Q. Doing what CAT shift officers do? 13 A. Yes. 14 Q. Do you have the authority to place somebody on 15 administrative leave with pay? 16 A. No. 17 Q. Do you know, in the organization, who does have 18 that authority? 19 A. The chief. 20 Q. Okay. Yesterday, you were asked a line of 21 questioning from Ms. Castillo about you being treated in 22 that strange odd way when you arrived at the Bentley 23 accident scene by some of the other officers at the 24 scene in terms of your new position as a sergeant. Do 25 you recall that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1333 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 237 1 A. Yes. 2 Q. And my understanding, correct me if I'm wrong, 3 is that conduct happened after you returned to the scene 4 the second time after going to the hospital? 5 A. It only happened on the second time. It didn't 6 happen on the first occasion. 7 Q. Right. Do you recall if you were the first 8 officer on the scene, second officer on the scene, 9 third, when you initially responded to that call? 10 A. I think I arrived simultaneously with an 11 additional officer. 12 Q. Okay. And do you think there was probably a 13 more important task to be performed then, rather than 14 genuflecting to the new sergeant? 15 MS. CASTILLO: Objection. Leading. 16 THE HEARING OFFICER: I'm not sure he needs to 17 answer that question. Move on to something else. 18 BY MR. PALMER: 19 Q. You described yesterday being a participant in 20 an administrative hearing for Lieutenant Proll. Looking 21 back on that now, what did you mean by administrative 22 hearing? 23 A. I was interviewed by Lieutenant Proll. 24 Q. Okay. So there's no other administrative 25 hearing involving Lieutenant Proll like we're doing Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1334 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 238 1 here? 2 A. Correct. 3 Q. You were referring to your interview with 4 Lieutenant Proll? 5 A. Yes. 6 Q. Okay. Do you know when Mr. Waddell's family 7 vacation to Italy or Paris was? 8 A. No. 9 Q. Any memory of that, at all? 10 A. Not specifically, no. 11 Q. Do you know whether it occurred before October 12 19th, 2013, or after? 13 A. I don't. 14 Q. Do you know if Mr. Waddell had a lot of 15 expenses which needed to be paid from that vacation in 16 October of 2013? 17 A. I don't know for sure. 18 Q. Do you know why Captain Storton came to you and 19 made an inquiry of you about the Bentley event? 20 A. I have a belief. 21 Q. Okay. But that was just speculation on your 22 part, correct? 23 A. Correct. 24 Q. You have no idea what prompted Captain Storton 25 to come to you about that event? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1335 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 239 1 A. Correct. 2 Q. Do you know what decisions -- strike that. 3 Do you know what factors went into the decision 4 to place Mr. Waddell on administrative leave with pay? 5 A. No. 6 Q. Were you involved in any meetings with regard 7 to making that decision? 8 A. No. 9 Q. Is that decision made above your pay rate? 10 A. Yes. 11 Q. Appellant's A, the memo. 12 A. Yes. 13 Q. If we go by the dates, you prepared this some 14 ten months after the event? 15 A. Correct. 16 Q. Between February 22nd, 2013, the date of the 17 Bentley incident, and the date you prepared this 18 memorandum, did you continue to think about it? 19 A. From time to time. 20 Q. Okay. Did it still concern you? 21 A. Um, yes. 22 Q. Was there a conflict in your mind going on 23 during these months? 24 A. Yes. 25 MS. CASTILLO: Objection. Leading. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1336 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 240 1 THE HEARING OFFICER: I'm going to allow it. 2 Go ahead. 3 THE WITNESS: Yes. 4 BY MR. PALMER: 5 Q. What was the conflict? 6 A. I think I began to realize how naive I was at 7 the time of initial promotion and that, perhaps, I 8 misjudged what was happening that night. 9 Q. On that night, as you state in your memo, if 10 you look at the fourth paragraph there on Page 1 -- 11 A. Yes. 12 Q. -- actually, fifth paragraph, the very bottom 13 paragraph on Page 1 of Appellant's A. 14 A. Yes. 15 Q. That night, your conclusion, by some percentage 16 of certainty, was that he was playing a joke? 17 A. Correct. 18 Q. Okay. And then you continued to think about it 19 as the months of 2013 wore on, right? 20 A. Yes. 21 Q. And then the detective position opened up and 22 you had a different thought? 23 A. Yes. 24 Q. Did the evolution of your thought with regard 25 to the Bentley accident, was that connected, in any way, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1337 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 241 1 to the October 19th, 2013, event? 2 A. It started before that -- 3 Q. Okay. 4 A. -- but that definitely influenced it more later 5 on. 6 Q. How did it connect up? 7 A. If he lied about this silly thing that he 8 didn't need to lie about, why wouldn't he also lie about 9 the Bentley parts? 10 MR. PALMER: No further questions. 11 THE HEARING OFFICER: Anything on recross? 12 MS. CASTILLO: Oh, yes. 13 THE HEARING OFFICER: Okay. 14 15 RECROSS-EXAMINATION 16 BY MS. CASTILLO: 17 Q. So poor judgment is what you determined this to 18 be, right? 19 A. Me, for not reporting it that night? 20 Q. Well, that, also, but the judgment of Officer 21 Waddell when he played the joke, correct? 22 THE HEARING OFFICER: You're asking him to 23 testify what he thought -- 24 MS. CASTILLO: At the time. 25 THE HEARING OFFICER: -- Officer Waddell was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1338 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 242 1 doing as poor judgment? 2 MS. CASTILLO: Right. 3 THE HEARING OFFICER: Do you understand the 4 question? 5 THE WITNESS: I believe Officer Waddell -- 6 MS. CASTILLO: Exhibited. 7 THE WITNESS: -- exhibited poor judgment that 8 night. 9 BY MS. CASTILLO: 10 Q. And then the question was, the department could 11 be tarnished if this was publicized, right? 12 A. Yes. 13 Q. And that was February 2013, right? 14 A. Yes. 15 Q. And that was right around the Cory Pierce time, 16 right? 17 A. Yes. 18 Q. Okay. And then -- and that was when you were 19 naive, but as the eight months went on, you kept 20 thinking about it, right? 21 A. Yes. 22 Q. And did you write a memo every -- like, you had 23 all these thoughts, but never wrote a memo each time it 24 manifested in your brain, right? 25 A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1339 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 243 1 Q. Okay. And then even though it was conflicted 2 in your head, you still never wrote a memo every time it 3 occurred to you, right? 4 A. Correct. 5 Q. Okay. And then the detectives position opened 6 up and you still never wrote a memo then, right? 7 A. No. I went directly to the lieutenant. 8 Q. Okay. It was only at that point, right? 9 A. Yes. I didn't go to the lieutenant before that 10 time. 11 Q. Okay. Was it when you -- when the detectives 12 position came or was it when the CAT overtime came that 13 you decided to bring up the Bentley thing? 14 A. No. I brought up the Bentley thing when the 15 detectives position was opening. 16 Q. Okay. Or did the -- or did it come to Captain 17 Storton's attention? 18 A. Yes, it came to Captain Storton's attention. I 19 don't know when. 20 Q. Well, which is it? Did you bring it up or did 21 someone else bring it up? 22 A. I have no idea who told Captain Storton 23 initially. I did tell him. I don't know if anyone else 24 told him before that or not. 25 THE HEARING OFFICER: When you said you brought Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1340 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 244 1 it up with the lieutenant, which Lieutenant are you 2 talking about? 3 THE WITNESS: I brought it up in -- around 4 August to Lieutenant Bledsoe and Lieutenant Smith at the 5 time that the selections for this investigative 6 positions were coming open. 7 BY MS. CASTILLO: 8 Q. Okay. And this was August of what year? 9 A. Of 2013. 10 Q. Okay. And so -- and that was when this whole 11 interest memos needed to be submitted for detectives? 12 A. Yes. 13 Q. Okay. And so what lieutenants did you tell 14 about Bentley? 15 A. Bledsoe -- 16 Q. Okay. 17 A. -- and Smith. 18 Q. You mean Lieutenant Smith, the CAT supervisor, 19 same guy? 20 A. Yes. We only have one Lieutenant Smith. 21 Q. Okay. And that's the same one who did the 22 investigation on which of these? 23 A. Lieutenant Smith, I don't believe, conducted 24 any investigation. 25 Q. Okay. No. He's the supervisor who assigned Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1341 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 245 1 the CAT overtime, right? 2 A. Yes, he is. 3 Q. Okay. Bledsoe is the investigator who did the 4 investigation on the Bentley? 5 A. No. 6 Q. The CAT -- the CAT IA, right? 7 A. The lying one. 8 Q. So he did that IA in January? 9 A. I don't know when he started it or when he 10 concluded it. 11 Q. Okay. But he knew about this Bentley thing in 12 August from you? 13 A. Give or -- yeah. I believe it was August. 14 Q. But someone else, maybe, told Captain Storton 15 about it and that's why you wrote the memo in December, 16 right? 17 MR. PALMER: Objection. Speculation. 18 THE HEARING OFFICER: If you know. 19 THE WITNESS: No. I don't know who told 20 Captain Storton. 21 BY MS. CASTILLO: 22 Q. Did anyone talk to you about between August, 23 now, and December? 24 A. About what? 25 Q. The Bentley IA -- or the Bentley event. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1342 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 246 1 A. No. 2 Q. Okay. And -- okay. So someone above your pay 3 grade, then, obviously, after February -- in August of 4 2013 knew about this Bentley event? 5 A. They knew -- they had a brief summary of the 6 Bentley event. They didn't know all the details that, 7 eventually, you have in front of you now. 8 Q. So, at least, two lieutenants, though, right? 9 A. Yes. 10 Q. Okay. And they had summaries and they knew 11 they could talk to you about it to get more information, 12 right? 13 A. Yes. 14 Q. And they knew you were concerned about it, 15 right? 16 A. Yes. 17 Q. Okay. But no internal affairs investigation 18 until, at least, you were ordered to write a memo 19 December 2013, right? 20 A. Correct. 21 Q. Okay. And you said this shifting of CAT 22 overtime was only prior approval, right? 23 A. Yes. 24 Q. Okay. So that's always the way it is? Is that 25 your testimony? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1343 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 247 1 A. I've never seen anybody just shift their 2 schedule on their own. 3 Q. Okay. And this e-mail that I asked you about, 4 Appellant's B, that was sent in November of 2013, right? 5 A. Yes. November 8th, 2013. 6 Q. Okay. And do you have anything before this 7 October CAT lying text issue that you had with Officer 8 Waddell that talks about don't use the time for anything 9 unrelated to CAT and that kind of stuff? 10 A. Yes. I believe there was an e-mail that 11 mirrored this e-mail, with the exception of the officers 12 and the dates, but the paragraph -- I believe I took 13 this paragraph from one of Lieutenant Smith's paragraphs 14 that he had previously sent out to other officers. 15 Q. And the date of that e-mail? 16 A. I don't know. It would be leading up to the 17 October month of overtime shifts. 18 Q. Okay. So prior to this e-mail, that e-mail 19 would have been sent out by you to those same people? 20 A. No. I believe it was sent out by Lieutenant 21 Smith. 22 Q. Okay. 23 A. I think that's where I -- I believe that's 24 where I took this paragraph from, was just a 25 cut-and-paste. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1344 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 248 1 Q. Okay. So that would have already been out in 2 the Internet for -- or the intra-net, probably, for the 3 department for these people who worked CAT, right? 4 A. I believe so. 5 Q. Because you cut and pasted it for November, 6 right? 7 A. I believe I did. 8 Q. Okay. And so when counsel was asking you about 9 if you have the ability to put Officer Waddell on 10 administrative leave and all of that, you recall that 11 line of questioning, right? 12 A. I do. 13 Q. Okay. You can write a memo about misconduct 14 any time you feel the need to, correct? 15 A. Yes. 16 Q. Okay. And, certainly, you can alert your 17 supervisors any time you feel there's an issue regarding 18 potential misconduct, correct? 19 A. Yes. 20 Q. Okay. And he was asking you about policy. 21 Do you know what policy he was referring to, 22 specifically? 23 A. I didn't remember him asking about policy. 24 Q. Well, do you know if there is a policy? 25 A. We have a big policy manual. I don't know what Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1345 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 249 1 specific one you're talking about. 2 Q. I don't, either. I'm asking if you know 3 there's a policy. 4 A. A policy about what? 5 Q. About when an officer can -- or who can put an 6 officer on administrative leave because I think he asked 7 you if it was only the captain and the chief or just the 8 chief. 9 A. He asked me who I believe can put somebody on 10 paid administrative leave, and, to my knowledge, that's 11 the chief of police. 12 Q. And is that in a policy, is what I'm asking, I 13 guess? 14 A. Yes. It should be written down. 15 Q. Would that be in your Lexipol? 16 A. I don't know if it's in Lexipol or our rules 17 and regs or our office directive. 18 Q. Okay. And then you were asked about the 19 photos, right, that you were shown in the administrative 20 hearing that you talked about yesterday from Lieutenant 21 Proll, and then today you cleared it up and said it was 22 not an administrative hearing, it was an administrative 23 interview, right? 24 A. I'm not sure what you're asking. Photos? 25 Q. Well, in Exhibit 11, the department's exhibit Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1346 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 250 1 book, yesterday, I asked you when was the first time you 2 saw these photos, you said I've never seen them, and 3 then you said, wait, I saw them in the administrative 4 hearing of Lieutenant Proll. 5 A. I think I said I might have seen them in that 6 hearing, but I couldn't recall. 7 Q. Okay. Were you shown photographs when you were 8 being interviewed about the Bentley? 9 A. I don't recall for sure. I may have been, but 10 I don't remember. 11 MS. CASTILLO: Okay. I'm probably okay right 12 now. 13 THE HEARING OFFICER: Okay. Re-direct? 14 MR. PALMER: Can I have a minute? 15 THE HEARING OFFICER: Sure. How are you doing? 16 THE WITNESS: I'm fine. 17 THE HEARING OFFICER: Okay. 18 THE WITNESS: Thank you. 19 MR. PALMER: Can I talk with Ms. Dietrick? 20 THE HEARING OFFICER: Yeah. We can take a 21 couple minutes and stretch your legs for a second. 22 MR. PALMER: Thank you. 23 (Pause in proceedings.) 24 THE HEARING OFFICER: Okay. So we're back on 25 the record. Any re-re-direct? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1347 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 251 1 MR. PALMER: I don't have any further 2 questions, but I do have a housekeeping item, if I may. 3 THE HEARING OFFICER: Okay. Is this something 4 for the record or shall we talk about it -- why don't we 5 go off the record for a second. 6 MR. PALMER: Yeah. 7 (Discussion off the record.) 8 THE HEARING OFFICER: So any more questions on 9 redirect? 10 MR. PALMER: No. 11 THE HEARING OFFICER: And anything on recross 12 at this time, subject to recalling him later, of course? 13 MS. CASTILLO: Yes, but if there's a -- yes, 14 and if -- well... 15 THE HEARING OFFICER: I'm just asking if you 16 have any questions for -- well, actually, you were done. 17 MR. PALMER: I was done. Yeah. 18 THE HEARING OFFICER: So that means we're going 19 done asking him questions. You change your mind about 20 that? 21 MS. CASTILLO: No. If they're going to -- I 22 don't want to release him, pending what their discussion 23 is, I guess. 24 THE HEARING OFFICER: Well, I'm not sure we're 25 going to release him -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1348 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 252 1 MS. CASTILLO: Okay. 2 THE HEARING OFFICER: -- we're just done with 3 his direct, and he's being offered as a witness by the 4 department as their case-in-chief. That's all we're 5 doing now. 6 MS. CASTILLO: Perfect. That works. 7 THE HEARING OFFICER: Okay. Great. All right. 8 And there was Appellant's A, B and C. Do you want to 9 move their admission? 10 MS. CASTILLO: Please. 11 THE HEARING OFFICER: Any objection to A, B and 12 C being admitted? 13 MR. PALMER: I don't object to A, I don't 14 object to B, I don't necessarily object to C; although, 15 I'd like to reserve on that to make sure the two 16 transcripts are materially correct. 17 THE HEARING OFFICER: Well, I'm going to let 18 them all in, but to the extent that you see that there's 19 some discrepancies between C, and let's call that C-1, 20 actually -- 21 MR. PALMER: Yes. 22 THE HEARING OFFICER: -- and whatever your 23 transcript is, that can, certainly, be pointed out and I 24 can take notice of that, for whatever that's worth. 25 MR. PALMER: Fair enough. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1349 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 253 1 THE HEARING OFFICER: So they will be admitted. 2 And then we had a discussion off the record 3 about the fact that now that Sergeant Pfarr is stepping 4 down from testifying as part of the department's 5 case-in-chief, there's a little matter of a Pitchess 6 motion to be discussed with respect to Sergeant Pfarr, 7 and I asked Ms. Castillo if it was okay with the 8 appellant if they had that discussion, they're not 9 talking about his testimony, and she said... 10 MS. CASTILLO: I said yeah. 11 THE HEARING OFFICER: That's okay. Very good. 12 All right. So we'll go off the record. You can take 13 care of that and we'll have your next witness. Yes? 14 MR. PALMER: Yes. Next witness is on the way. 15 THE HEARING OFFICER: Who are we having next? 16 MR. PALMER: Adam Stahnke. 17 (Luncheon Recess.) 18 THE HEARING OFFICER: Back on the record. 19 Kasey, ready to go? 20 MS. CASTILLO: Yes. Thanks. 21 THE HEARING OFFICER: Good afternoon, Detective 22 Stahnke. Thanks for coming. My name's Chris Cameron. 23 I'm the hearing officer. It's my job to make sure we 24 get your testimony. Let's begin by getting you to raise 25 your right hand. Do you affirm that the testimony that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1350 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 254 1 you are about to give will be the truth, the whole truth 2 and nothing but the truth? 3 THE WITNESS: I do. 4 THE HEARING OFFICER: Great. Put your hand 5 down. I think we have the spelling of your name. 6 Mr. Palmer, go ahead. 7 MR. PALMER: Thank you, very much. 8 9 DIRECT EXAMINATION 10 BY MR. PALMER: 11 Q. Good afternoon, sir. Would you tell us by whom 12 you are employed? 13 A. City of San Luis Obispo. 14 Q. In what capacity? 15 A. Police officer. 16 Q. How long have you been so employed? 17 A. With the city, 11 years. A little over 11 18 years. 19 Q. Any prior service with another law enforcement 20 agency before that? 21 A. Yes. 22 Q. Where? 23 A. City of Orange and the State of California. 24 Q. So total time in law enforcement? 25 A. 16 years. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1351 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 255 1 Q. Were you on duty and so employed as a San Luis 2 Obispo police officer on October 19th, 2013? 3 A. I was. 4 Q. Were you scheduled to work that day? 5 A. I was. 6 Q. At what type of assignment? 7 A. Specialty assignment at the downtown area of 8 San Luis Obispo. 9 Q. And was that specialty assignment called 10 something? 11 A. It's referred to as CAT occasionally. 12 Q. We've already heard a little bit about the CAT 13 shift. Just in about a 25-word summary, can you tell us 14 what your understanding of what CAT is? 15 A. Focusing on unwanted, undesirable behavior in 16 the downtown area. 17 Q. From when to when does the CAT shift run? 18 A. That point in time, it was overtime shift and 19 it started at 11: 00 in the morning and went to 20 mid-afternoon, 4:00, or so, 5:00. 21 Q. Were those hours pretty set? 22 A. Yes. 23 Q. Were those hours flexible, in any way? 24 A. Not that I'm aware of. 25 Q. Could they be -- I'm going to use the word, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1352 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 256 1 flex. I don't mean flex, but could an officer come in 2 at a different time other than 11: 00 based upon 3 something else happening? 4 A. I'm sure they could with a prior permission. 5 Q. From? 6 A. A supervisor. 7 Q. Like a sergeant type? 8 A. Sure. 9 Q. Or a lieutenant type? 10 A. Yes. 11 Q. Would there be any occasion in your 12 experience -- let me do it this way. 13 Did you often work a CAT shift during this 14 period of time? 15 A. Often, no. Fewer than fives times. 16 Q. You worked it sometimes, though? 17 A. Occasionally. 18 Q. When you worked it, was it typically an 11: 00 19 a.m. start and 4:00 p.m. stop? 20 A. Correct. 21 Q. Was there ever an occasion when you started and 22 stopped at a different time? 23 A. Not that I'm aware of. 24 Q. Okay. Was this a regular overtime assignment 25 or was it assigned some other way? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1353 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 257 1 A. It wasn't regular. It was a special 2 circumstance for, I believe, a two to three-month time 3 period. 4 Q. And how did officers get assigned to that 5 shift? 6 A. It was voluntary and then by seniority. 7 Q. How did you volunteer? What physical act did 8 you do to make yourself available? 9 A. Put your name on the list. 10 Q. There was a list somewhere? 11 A. Correct. 12 Q. And was it a one-officer unit or something 13 different? 14 A. Something different. 15 Q. What was it? 16 A. Two. 17 Q. Was there ever an occasion when you worked CAT 18 when you were a solo officer? 19 A. I don't recall. 20 Q. The extent of your recollection, did you always 21 have some sort of partner on a CAT shift? 22 A. Yes. 23 Q. Back to October 19th, 2013, did you know ahead 24 of time by some time period who your partner was going 25 to be that day? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1354 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 258 1 A. Yes. 2 Q. Who was that? 3 A. Kevin Waddell. 4 Q. Do you remember what span of time you knew that 5 before the shift started? 6 A. Probably several weeks. 7 Q. And do you remember why that would be? 8 A. So you could plan ahead, know what your shift 9 was going to be. 10 Q. Does the sign-up sheet stay somewhere static 11 for a while? 12 A. On a bulletin board in the hallway. And after 13 a period of time when people have had the ability to 14 sign up, the lieutenant goes through and decides who has 15 seniority and will cover the shifts, it will be a 16 finalized schedule. 17 Q. So sometime ahead of the actual schedule 18 starting, you know who you're going to be partnered 19 with? 20 A. Yes. 21 Q. Had you worked the CAT shift with Mr. Waddell 22 before October 19th, 2013? 23 A. I believe so. 24 Q. Do you know how many times? 25 A. Two, possibly. I don't recall. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1355 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 259 1 Q. Your recollection, did those shifts start at 2 11: 00 and end at 4:00? 3 A. Yes. 4 Q. Sometime prior to the start of the CAT shift at 5 11: 00 a.m. on October 19th, 2013, did you receive some 6 kind of communication from Mr. Waddell? 7 A. I did. 8 Q. What kind of communication was that? 9 A. A text message. 10 Q. And when in relation to the shift starting did 11 that text message come in? 12 A. 45 minutes or an hour before. 13 Q. So around 10: 00 or 10: 15 a.m.? 14 A. Sure. 15 Q. And what did the text message say? 16 A. Said that he was going to be late for the 17 shift. 18 Q. Did it also state an estimated time of arrival? 19 A. I believe it was prior to 11: 30. 20 Q. Did you respond to his text? 21 A. I did. 22 Q. How did you respond? 23 A. I told him I would be there and see him then. 24 Q. When this text came in, did it just come in 25 individually to you or did you see any other persons Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1356 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 260 1 lined up in the group? 2 A. As far as I know, it was just to me. My phone 3 doesn't allow the group text messages in the list of 4 everyone who receives them. 5 Q. Good. Stick with that phone. 6 Do you know if Mr. Waddell also sent a text 7 to -- let's do it this way. 8 Who was the sergeant on the shift which 9 overlapped with that CAT shift that day, if you 10 remember? 11 A. Sergeant Pfarr. 12 Q. Do you know if he sent some kind of similar 13 text to Sergeant Pfarr saying he was going to be late? 14 A. I don't know. 15 Q. There was no reference to that in the text? 16 A. No. 17 Q. Did you arrive for the shift? 18 A. I did. 19 Q. Did you arrive on time? 20 A. I did. 21 Q. And at some point after your arrival, did you 22 meet with Sergeant Pfarr? 23 A. I did. 24 Q. What were the circumstances of that? 25 A. It was an informal meeting in the hallway. At Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1357 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 261 1 the time, my assignment was, actually, in investigations 2 unit and I had a uniform component at my desk while our 3 locker room is downstairs. So I was halfway dressed. 4 Don't let your imagine run wild. 5 Q. No, no, no. 6 A. So I went upstairs to get that uniform 7 component, and in the hallway, on my way to do that, I 8 ran into Sergeant Pfarr. 9 Q. And the uniform component, I think you were 10 talking about something with your shirt? 11 A. Correct. Shirts stays. 12 Q. So you were running between those two 13 locations? 14 A. Yes. 15 Q. And did you encounter Sergeant Pfarr? 16 A. Yes. 17 Q. About what time was this? 18 A. Five or ten minutes to 11: 00. 19 Q. Okay. And did you two have a verbal 20 interaction? 21 A. Yes. 22 Q. What did you two talk about? 23 A. He asked me if I'd seen, then, Officer Waddell. 24 Q. And you said... 25 A. That I had not. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1358 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 262 1 Q. Did you give him any other information? 2 A. I did. 3 Q. What did you tell him? 4 A. I told him that I'd received a text message 5 from Kevin that stated he was going to be late for the 6 shift. 7 Q. Did you also tell Sergeant Pfarr about how late 8 he said to you he was going to be? 9 A. I don't recall. 10 Q. Did Sergeant Pfarr react to that information? 11 A. Uh, I don't remember him reacting positively or 12 negatively. 13 Q. Okay. Did he react in the following way, oh, 14 yeah, I got a text from him, too, I already knew that? 15 MS. CASTILLO: Objection. Asked and answered. 16 THE HEARING OFFICER: Overruled. I'll allow 17 it. Go ahead. 18 THE WITNESS: I don't recall. 19 BY MR. PALMER: 20 Q. Did you have any further discussion with 21 Sergeant Pfarr about that topic? 22 A. No. 23 Q. When you encountered Sergeant Pfarr, do you 24 remember, approximately, where you were in the building? 25 A. I believe it was near the upstairs bathroom Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1359 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 263 1 near our investigations unit between there and our 2 sergeant's office. 3 Q. Is there a hallway somewhere between those two 4 locations? 5 A. There is. 6 Q. Okay. Were you carrying something? 7 A. I don't remember. Shirt stays, maybe. 8 Q. Other than the shirt stays, do you recall 9 engaging in any other official business while you were 10 talking with Sergeant Pfarr? 11 A. No. 12 Q. Were you conducting any detective case 13 follow-up on anything? 14 A. That morning? 15 Q. Yeah. 16 A. No. I came in specifically for the overtime 17 shift. 18 Q. Did Mr. Waddell eventually arrive for the 19 shift? 20 A. Yes. 21 Q. At about what time? 22 A. 11: 15, or so. 23 Q. So it sounds like there's about a ten-minute 24 window after you left Sergeant Pfarr's company before 25 you encountered Mr. Waddell? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1360 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 264 1 A. Approximately. 2 Q. Do you know what you were doing in that period 3 of time? 4 A. Finishing getting dressed for my shift. 5 Q. Didn't go to the Detective Bureau and start 6 working on cases? 7 A. I don't recall. I don't recall. 8 Q. Did Mr. Waddell dress out in a uniform? 9 A. Yes. 10 Q. And did you two go out on patrol? 11 A. We did. 12 Q. Was it a foot patrol? Bike patrol? Car? Do 13 you recall? 14 A. I take a car downtown, park it, and I go out on 15 foot. 16 Q. So, sounds like, predominantly, foot patrol, at 17 least, for the enforcement activity? 18 A. Correct. 19 Q. At some point during that shift, did you 20 discuss with Mr. Waddell being late? 21 A. Can you clarify your question? 22 Q. At some point during that shift, you go in 23 service maybe in the car while driving downtown or while 24 you two were walking downtown engaging in the CAT shift, 25 did you two have any discussion about the fact that he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1361 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 265 1 was late and what the reasons were for that? 2 A. Yes. 3 Q. Okay. What was the discussion about? 4 A. He told me he had been pulled into the 5 sergeant's office by Sergeant Pfarr and spoken to about 6 being late. 7 Q. Did he tell you what he told Sergeant Pfarr? 8 A. I believe he said it was in regards to 9 childcare, the reason he was late. 10 Q. Did he explain anything else? 11 A. He had prior permission from Lieutenant Smith. 12 Q. How did he state that? 13 A. I believe he stated it just that way, that he 14 had previous permission from Lieutenant Smith to be late 15 due to the fact that he didn't have childcare for a 16 small window of time. 17 Q. Did he give you any more detail about whatever 18 discussion he and Lieutenant Smith had in that regard? 19 A. No. 20 Q. Did he tell you when it happened? 21 A. No. 22 Q. Where it occurred? 23 A. No. 24 Q. The detailed exchange give and take between him 25 and Lieutenant Smith, he didn't get into that much Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1362 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 266 1 detail? 2 A. No. 3 Q. All he said to you, that you recall, is he had 4 authority given by Lieutenant Smith to be late sometime 5 before this shift October 19th due to scheduling 6 something with his kids or wife? 7 A. Correct. 8 Q. Am I missing anything else in there? 9 A. No. If I could clarify one thing? 10 Q. Sure. 11 A. Once I was ready for work, I didn't sit in the 12 locker room while Kevin changed. So I don't know after 13 he changed -- I wasn't present when he was pulled into 14 the sergeant's office, but what I was doing at that 15 time, I could have been placing things in a patrol 16 vehicle, I could have been sitting at my desk in 17 investigations. I don't know. I wouldn't have been 18 hanging around the sergeant's office, waiting for him. 19 So there's probably a 10-minute or 15-minute 20 window of time where we were separated while he was 21 getting ready and was being spoken to. 22 Q. Fair enough. I appreciate that. But did you 23 have to wait for Officer Waddell to get ready to go on 24 the shift? 25 A. I don't recall. I don't recall. It's not like Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1363 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 267 1 I was sitting with my arms folded in the parking lot. 2 I'm sure there was something else I was doing. 3 Q. So you didn't go out on the CAT shift until 4 Officer Waddell got there? 5 A. Correct. We went together. 6 Q. At that time, was there some importance level 7 attached to it being two officers? 8 A. It was scheduled for two officers. So if I 9 left him at the station, I would have to return shortly 10 thereafter to pick him up. 11 MR. PALMER: Okay. Thank you. No further 12 questions. 13 THE HEARING OFFICER: Cross-examination? 14 MS. CASTILLO: Thank you. 15 16 CROSS-EXAMINATION 17 BY MS. CASTILLO: 18 Q. So to follow along, could you have left him and 19 come back and picked him up? 20 A. Could I have? Yes. 21 Q. Okay. When you had that conversation with 22 Officer Waddell about the prior permission with the 23 small window for scheduling issues, was it specific -- 24 do you recall specific to the October 19th shift or just 25 a small window? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1364 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 268 1 A. A specific date wasn't mentioned. 2 Q. Okay. 3 A. Like, today or last week or -- 4 Q. Or yesterday or whenever? 5 A. Correct. 6 Q. Okay. And did you ever later recall talking to 7 Sergeant Pfarr again about any detective investigations 8 or reports or anything like that in that morning time? 9 A. It's possible. Before he was promoted, I 10 worked with Sergeant Pfarr in investigations on several 11 major cases, some of them currently active, and so we've 12 always discussed cases and things of that nature. So 13 it's possible, but it's nothing that I recall. 14 Q. Okay. But at the point when you had the 15 conversation with him that morning, you were 16 half-dressed? 17 A. Right. I had my uniform shirt on and shorts 18 and flip-flops because I needed my shirt stays. 19 Q. Okay. Do patrol officers normally walk around 20 the station like that? 21 A. It's not a regular occurrence. 22 Q. Okay. So it would be, kind of, something that 23 would stand out, maybe? 24 A. Yeah. 25 Q. Okay. When you were interviewed about this by Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1365 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 269 1 the investigator who was looking into this, this was 2 approximately a month after October 19th, right? 3 A. I believe so. 4 Q. Okay. And when you received the text message 5 about Officer Waddell being a little bit late, did you 6 notify anyone? 7 A. No. 8 Q. Okay. 9 A. Just responded to him. 10 Q. You said that your understanding, based on the 11 four or five times that you worked the CAT shift, was 12 that it was a 4:00 to 5:00 end time? 13 A. I believe so. 14 Q. Okay. And several weeks in advance, you knew 15 who your partner would be? 16 A. Yes. 17 Q. Okay. But it's not always a set partner, 18 correct? 19 A. No. It changes as availability changes. 20 Q. Okay. And the partner list is what is posted, 21 right? 22 A. Correct. 23 Q. Okay. So do you have any idea of why Officer 24 Waddell would have texted you, specifically? 25 A. We knew that we were going to be partnered up Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1366 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 270 1 that day. 2 Q. Okay. Did you ever take a picture of the text 3 message conversation? 4 A. No. 5 Q. Okay. Did that text message say he was going 6 to be late or might be late? Do you know what the exact 7 words were? 8 A. I don't recall. 9 Q. Okay. So as you sit here today, can you say 10 with any certainty what those words were in terms of 11 specifics? 12 A. Not specifically, no. 13 Q. Okay. 14 A. It was just a heads-up that he was, 15 potentially, going to be late, or he was going to be 16 late. 17 Q. So potentially or maybe or going to be? 18 A. Something along those lines. 19 Q. Okay. So a courtesy text? 20 A. Correct. 21 Q. Okay. When you do the overtime on your time 22 card for this CAT shift, does it say the time period in 23 which you work or just the hours? 24 A. Just the hours. 25 Q. Okay. And then when you met with Sergeant Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1367 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 271 1 Pfarr in the hallway when you had the conversation with 2 him about Officer Waddell, did you show him the text 3 message? 4 A. I don't recall. I think I just told him that I 5 got the text message. 6 Q. Okay. And you just testified on direct that 7 during the time period with you're there for the CAT 8 shift, you're only supposed to be working on CAT shift 9 business; is that right? 10 A. Correct. In the downtown area on foot -- 11 Q. Okay. 12 A. -- as much as possible. 13 Q. Okay. So that would include reports, et 14 cetera, related to CAT business, correct? 15 A. Sure. 16 Q. So even if you're in the station, that would -- 17 I know. CAT business. I'm sorry. 18 THE HEARING OFFICER: My cat is, no doubt, 19 doing his business at home, as we speak. 20 BY MS. CASTILLO: 21 Q. So if you were waiting, theoretically, for 22 Officer Waddell, there were CAT-related things you could 23 have been doing in the station, CAT-related things? 24 A. Potentially, yes. 25 Q. All right. And you believe he arrived Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1368 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 272 1 somewhere around 11: 15? 2 A. Yes. 3 Q. Okay. Do you recall having a conversation with 4 Officer Waddell, asking Officer Waddell why Sergeant 5 Pfarr was looking for him before 11: 00? 6 A. I believe I mentioned it to him, yes. 7 Q. Because you had gotten there early, right? 8 A. Correct. 9 Q. Okay. And do you remember what Officer 10 Waddell's response was? 11 A. I don't. I don't. It was just a -- as you 12 mentioned earlier, it was just a courtesy, letting him 13 know that the sergeant was looking for him. 14 Q. And that was before you had told him that you 15 were aware Officer Waddell was going to be a little bit 16 late, right? 17 A. It was after. So I had run into Sergeant Pfarr 18 in the hallway, he told me -- he asked me if I had seen 19 Kevin, I told him that I'd received a text message he 20 was going to be late, and then, at some point in time, I 21 ran into Kevin and I told Kevin the sergeant was looking 22 for him. 23 Q. And this was before 11: 00? 24 A. It would have been after 11: 00. 25 Q. What time was it around? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1369 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 273 1 A. Probably when he got there. I can't pinpoint 2 it. 3 Q. No. I mean not when you talked to Kevin 4 Waddell. When you had the conversation with Sergeant 5 Pfarr. I'm sorry. 6 A. The only time that I recall talking to Sergeant 7 Pfarr was five to ten minutes before 11: 00. 8 Q. Before 11: 00? 9 A. Correct. 10 MS. CASTILLO: Okay. I don't have anything 11 else. 12 THE HEARING OFFICER: Anything on re-direct? 13 MR. PALMER: Yes. 14 15 REDIRECT EXAMINATION 16 BY MR. PALMER: 17 Q. Maybe I misunderstood some of your -- at least, 18 one part of your cross-examination. Let me go back and 19 hit it. 20 Counsel was asking you a series of questions 21 about your discussion with Mr. Waddell after you two 22 went in service and were on the CAT shift. 23 A. Okay. 24 Q. You've got that time in your head now? 25 A. Yeah. Sure. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1370 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 274 1 Q. And you had a brief discussion with Mr. Waddell 2 about him being late and the fact that he had approval, 3 some kind of authority from Lieutenant Smith. Do you 4 recall that? 5 A. Yes. 6 Q. Was it your impression of that discussion that 7 whatever approval he was telling you he received from 8 Lieutenant Smith was for being late on that shift? 9 A. Specific to that -- the impression that I got, 10 that it was a blanket permission, like, I'm on -- these 11 days that I'm signed up to work overtime, I have 12 permission from Lieutenant Smith to be late. He didn't 13 say, specifically, I had permission from Lieutenant 14 Smith to be late today. 15 Q. Okay. 16 A. It was just a general -- it was a general 17 statement that he made, not specific to a date and time. 18 Q. In your experience working the CAT shift, was 19 that consistent with how the CAT shift was run? 20 MS. CASTILLO: Objection. Relevance. 21 THE HEARING OFFICER: Overruled. You can 22 answer. 23 THE WITNESS: It's scheduled from 11: 00 to 24 4:00. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1371 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 275 1 BY MR. PALMER: 2 Q. Okay. I'm going to show you appellant's 3 exhibit. I only really want you to -- well, review it 4 and take as much time as you need and tell me when 5 you're done. 6 A. Okay. Okay. 7 Q. First off, do you recognize Appellant's B? 8 A. Do I recognize... 9 Q. Do you recognize the document that is marked 10 Appellant's B? 11 A. Looks familiar. 12 Q. Purports to be an e-mail from Sergeant Pfarr 13 and others? 14 A. Sure. 15 Q. And are you in that string? 16 A. I am. 17 Q. Do you remember, specifically, getting this? 18 A. I don't remember, specifically, getting it, but 19 my name's on there and I'm sure it was lurking 20 somewhere. 21 Q. Is it consistent with other e-mails you 22 received about the CAT shift and who was assigned? 23 A. Yes. 24 Q. And it would come out sometime in advance, like 25 this one did? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1372 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 276 1 A. Yes. 2 Q. In the introductory paragraph, if you review 3 that, do you see where it said the time period the CAT 4 shift runs? 5 A. I do. 6 Q. And what does it say? 7 A. It says, "The shift started from 11: 00 to 16: 00 8 hours downtown on foot." 9 Q. And that's consistent with your understanding? 10 A. Yes. 11 MR. PALMER: Thank you. Nothing further. 12 MS. CASTILLO: Can I see that, since you have 13 it out? 14 MR. PALMER: You have your own. 15 MS. CASTILLO: I know, but you have it out. 16 17 RECROSS-EXAMINATION 18 BY MS. CASTILLO: 19 Q. This was after the date we were talking about, 20 right, this e-mail, I'm sorry, November 8th, 2013? 21 A. Correct. It is dated November 8th, 2013. 22 Q. And the text issue that we're talking about is 23 in October, correct? 24 A. That is correct. 25 MS. CASTILLO: Okay. Thanks. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1373 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 277 1 THE HEARING OFFICER: Anything else? 2 MS. CASTILLO: No. 3 THE HEARING OFFICER: Anything else? 4 MR. PALMER: No. 5 THE HEARING OFFICER: Can we excuse this 6 witness? 7 MR. PALMER: Yes. 8 MS. CASTILLO: Yes. 9 THE HEARING OFFICER: Detective, you're 10 excused. Run out of here before someone changes their 11 mind. 12 MS. CASTILLO: We admonish all witnesses, 13 right? 14 THE HEARING OFFICER: Yes. I wanted to remind 15 you not to discuss your testimony with anybody until 16 this case is all over. 17 THE WITNESS: Understood. 18 THE HEARING OFFICER: Thank you. 19 MR. PALMER: We're going to get to our next 20 witness. 21 THE HEARING OFFICER: I'm sorry? 22 MR. PALMER: We're going to get our next 23 witness rolling. My understanding is he's pretty close. 24 So if we can take a break till then? 25 THE HEARING OFFICER: Who is it going to be? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1374 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 278 1 MR. PALMER: Lieutenant John Bledsoe. 2 (Recess.) 3 THE HEARING OFFICER: Good afternoon, 4 Lieutenant. Thanks for coming to join us. I'm Chris 5 Cameron. I'm the hearing officer. It's my job to make 6 sure we get your testimony. Can we begin by getting you 7 to raise your right hand? Do you affirm the testimony 8 that you are about to give will be truth, the whole 9 truth and nothing but the truth? 10 THE WITNESS: Yes, I do. 11 THE HEARING OFFICER: Put your hand down. 12 Could you please state your name for the record and 13 spell it so the court reporter can get it? 14 THE WITNESS: It's John Bledsoe, B-L-E-D-S-O-E. 15 THE HEARING OFFICER: Thank you. You may 16 proceed. 17 MR. PALMER: Thank you. 18 19 DIRECT EXAMINATION 20 BY MR. PALMER: 21 Q. Good afternoon. Would you tell us by whom you 22 are employed, please? 23 A. I'm employed by the City of San Luis Obispo 24 Police Department. 25 Q. In what capacity? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1375 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 279 1 A. I'm a lieutenant. 2 Q. How long have you been a lieutenant? 3 A. About two and a half years. 4 Q. How long, total time, in law enforcement? 5 A. Over 28 years. 6 Q. Can you give us a brief description of some of 7 the different assignments you've done in that time 8 period? 9 A. I've worked patrol, I've worked special 10 enforcement team, I've worked narcotics, on the S.W.A.T. 11 team, investigations, administration, traffic. Pretty 12 much, sums it up. 13 Q. What was your assignment in 2013? 14 A. I was the detective lieutenant, my current 15 assignment is now. 16 Q. In that position, are you in charge of a 17 certain number of police sergeants? 18 A. Yes. 19 Q. And in that position, do you have supervision 20 authority over a certain number of detectives? 21 A. Yes. 22 Q. In 2013, did you specifically supervise 23 Sergeant Chad Pfarr? 24 A. No. He was not under my direct supervision. 25 Q. Okay. Who was Sergeant Chad Pfarr under the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1376 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 280 1 direct supervision of? 2 A. Chad Pfarr was under the direct supervision of 3 Lieutenant Jeff Smith. 4 Q. Occasionally, though, do your lieutenants kind 5 of overlap with supervising sergeants, depending upon 6 certain circumstances? 7 A. Yes. 8 Q. What would some of those be? 9 MS. CASTILLO: Can I, real quick, have him turn 10 over his materials? 11 THE HEARING OFFICER: Oh, yeah. If we need you 12 to look at something, or whatever, we'll do that all in 13 good time. Thank you. 14 THE WITNESS: I'm sorry. Could you repeat the 15 question? 16 MR. PALMER: Could we have it reread? 17 (Record read by the court reporter.) 18 THE WITNESS: If a sergeant is working an 19 overtime shift on a different rotation, if they work a 20 special assignment or they're on a search warrant, 21 working a collateral assignment, such as S.W.A.T., which 22 Sergeant Pfarr is now working, a variety of different 23 assignments like that. 24 BY MR. PALMER: 25 Q. Do you recall when Sergeant Pfarr was promoted Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1377 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 281 1 to sergeant? 2 A. Yes, I do. 3 Q. And why do you have a pretty good memory of 4 that? 5 A. Because I was promoted to lieutenant at that 6 same time. 7 Q. When was that? 8 A. In January of 2013. 9 Q. Do you recall, approximately, when in January 10 of 2013? 11 A. I believe it was January 30th, 31st. 12 Q. Early part of it? 13 A. Late part. 14 Q. I mean early part of 2013? 15 A. Yes. 16 Q. Okay. Do you recall a time period in San Luis 17 Obispo Police Department during 2013 that it became 18 publicized that the department was testing for detective 19 positions? 20 A. Yes. It was late 2013. 21 Q. And I'd ask you if you can or can't pinpoint 22 that any more other than late 2013. And if you can't, 23 that's fine. 24 A. It was sometime around October. 25 Q. Okay. Now, did the publication of detective Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1378 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 282 1 testing prompt one of your sergeants to come to you with 2 some information -- 3 MS. CASTILLO: Objection -- 4 BY MR. PALMER: 5 Q. -- or a sergeant come to you with this 6 information? 7 THE HEARING OFFICER: We've got to get there 8 somehow. I'm going to allow that. Go ahead. 9 THE WITNESS: Yes. 10 BY MR. PALMER: 11 Q. And who was it that came to you with that 12 information? 13 A. It was Sergeant Pfarr. 14 Q. What were the circumstances of your meeting 15 with him? 16 A. Sergeant Pfarr came into my office to discuss 17 some of the candidates that were thinking about testing 18 for the detective and special enforcement team 19 assignments. 20 Q. Who spoke first? He or you? 21 A. He did. 22 Q. And did he open up with that topic or did you 23 have some discussion about other stuff before that? 24 A. I believe he opened up with it. 25 Q. What else did he tell you? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1379 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 283 1 A. He had some concerns about one of the 2 candidates. 3 Q. Which one? 4 A. It was Officer Waddell. 5 Q. In what capacity? 6 A. He had some integrity issues. 7 Q. Did he explain to you what was that -- what 8 that was based on? 9 A. Yes, he did. 10 Q. What did he say? 11 A. There was an incident involving a DUI traffic 12 collision where Officer Waddell had made some comments 13 to him, and I'm not sure if they were verbally or text 14 message, but had communicated with him, somehow, about 15 taking a hood ornament or some sort of a part from the 16 vehicle that was involved in the collision, I believe it 17 was a Bentley, and he talked about taking one of those 18 as a souvenir. 19 Q. Did Sergeant Pfarr explain to you what his 20 reaction to that event at the time was? 21 A. He did. I believe Sergeant Pfarr was somewhat 22 confused and wasn't certain if -- initially, if Kevin 23 was joking about it or was serious about taking the 24 part. 25 Q. Did Sergeant Pfarr tell you anything about the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1380 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 284 1 car parts in particular and what happened with them? 2 A. Not that I recall, no. 3 Q. Did he tell you anything about whether the car 4 parts were actually taken from the scene or left? 5 A. I believe they were left. 6 Q. Do you remember in what context he put that? 7 A. No. 8 Q. Okay. And did Sergeant Pfarr explain to you 9 how -- strike that. Let me do it this way. 10 When Sergeant Pfarr explained his -- when 11 Sergeant Pfarr brought this to your attention, was this 12 the first time that you -- and I'll do it this way 13 first -- had ever heard of that accident happening in 14 the past? 15 A. No. 16 Q. You'd heard of the accident? 17 A. Yes. 18 Q. Tell me the context of that. 19 A. I believe it came on a night watch recap. 20 After a day shift or night shift when a significant 21 event happens, a sergeant or watch commander will 22 generally put out a recap of the event, and I believe 23 that one even came out on a media release because of the 24 significance of that crash and I just remember it coming 25 out because of the Bentley and a picture of the driver Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1381 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 285 1 and she was arrested for DUI. 2 Q. Okay. Prior to Sergeant Pfarr coming to you 3 sometime in October of 2013 and expressing what he did 4 to you in that meeting, was that the first time that 5 you'd ever heard of any particular involvement by 6 Mr. Waddell on this accident? 7 A. Yes. 8 Q. Okay. How did -- if Sergeant Pfarr explained 9 it to you, how did that event gel in his mind with the 10 open detective positions motivating him to come to you? 11 Did he explain that to you? 12 A. Well, I believed that he -- 13 MS. CASTILLO: Objection. Non-responsive. 14 THE HEARING OFFICER: What was the question? 15 Can you read that back? 16 (Record read by the court reporter.) 17 THE HEARING OFFICER: There were several 18 questions there. So pick one and answer it. Actually, 19 why don't you break it down a little bit, make it easier 20 for him. 21 MR. PALMER: Sure. 22 BY MR. PALMER: 23 Q. You previously testified that there was some 24 moniker of the open detective positions, which, 25 according to Sergeant Pfarr, motivated him to come to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1382 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 286 1 see you? 2 A. Yes. 3 Q. Did Sergeant Pfarr explain more detail as to 4 why the event connected up with the publication of the 5 open detective positions? 6 A. Yes. 7 Q. What did he say? 8 A. He was concerned about the integrity issues 9 that dealt with that. 10 Q. Okay. Did you find that important? 11 A. Absolutely. 12 Q. Why? 13 A. Because integrity is a huge part of this job, 14 not just for detectives, but for anybody in this 15 profession, that he was concerned about the team 16 environment in detectives and wanted to let me know that 17 that was a concern of his for someone coming back into 18 the bureau. 19 Q. Okay. Do you think that Sergeant Pfarr -- when 20 you were getting this information from Sergeant Pfarr, 21 did you think, in your mind, that he probably should 22 have told somebody about this before several months went 23 by? 24 A. Absolutely. 25 Q. Did you tell Sergeant Pfarr to do something Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1383 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 287 1 with that information? 2 A. Yes, I did. 3 Q. What did you tell him? 4 A. I told him to notify his lieutenant. 5 Initially, I asked him if he had notified his lieutenant 6 about it and he did not and I told him that he needed to 7 do so. The reason he hadn't is because he didn't think 8 that Kevin took the part initially. So he thought that 9 he had handled the situation. 10 Q. And who was his lieutenant? 11 A. Lieutenant Smith. 12 Q. Lieutenant Smith was Sergeant Pfarr's direct 13 supervisor? 14 A. Yes. 15 Q. All right. So you get this information 16 sometime in October of 2013. 17 Do you have the authority, as a lieutenant of 18 police, to initiate an internal affairs investigation to 19 be done? 20 A. No. 21 Q. Who has that authority in the San Luis Obispo 22 Police Department? 23 A. The chief of police. 24 Q. Would that apply to sergeants of police, as 25 well, in the San Luis Obispo Police Department? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1384 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 288 1 A. They do not have the authority. 2 Q. All right. I'm going to change gears a little 3 bit, different topic. Okay? 4 A. Yes, sir. 5 Q. Again, how long have you been a lieutenant? 6 A. Two and a half years. 7 Q. Does part of your ancillary duties as a police 8 lieutenant require you, from time to time, to conduct 9 internal affairs investigations? 10 A. Yes. 11 Q. And I know you call them IAs here, don't you? 12 A. I think they're investigative inquiries. 13 Q. Whether it's administrative -- 14 A. Administrative inquiries. 15 Q. Whether it's administrative investigation or 16 internal affairs, you know what I'm talking about? 17 A. Yes, sir. 18 Q. Okay. Did you conduct an internal affairs 19 investigation for the San Luis Obispo Police Department 20 on another event involving Mr. Waddell? 21 A. Yes. 22 Q. What was that event? Just give us a brief 23 summary. 24 A. I was contacted by Captain Storton, who told me 25 that Officer Waddell was involved in an incident Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1385 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 289 1 regarding, possibly, providing false information to 2 Sergeant Pfarr. Sergeant Pfarr had checked the schedule 3 one day and found that Officer Waddell hadn't reported 4 to work on a day that he was -- had signed up for some 5 overtime. He had texted -- Sergeant Pfarr had texted 6 Waddell and asked him if he was coming in. Waddell had 7 texted him back saying I'm on my way, or something to 8 that effect. 9 In the meantime, Sergeant Pfarr had telephoned 10 Lieutenant Smith to ask him if he had put him on the 11 schedule or if he had canceled that overtime, and before 12 Lieutenant Smith had called Sergeant Pfarr back, Kevin 13 had called -- texted Sergeant Pfarr back and notified 14 him via text that he had spoken to Lieutenant Smith in 15 the locker room the previous day and he had been given 16 permission to come in to work a half an hour late. 17 When Sergeant Pfarr found out that that was not 18 true, according to Lieutenant Smith, after they had had 19 a conversation, that's when the internal affairs 20 investigation was opened. 21 Q. And who directed you to do that? 22 A. Captain Storton. 23 Q. And was this based, also, on a written 24 memorandum prepared by Sergeant Pfarr? 25 A. Yes, sir, it was. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1386 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 290 1 Q. Do you see the exhibit notebook there in front 2 of you? 3 A. I do. 4 Q. Can you pull that over to you? Turn to Exhibit 5 9. Tell me when you're there. 6 A. I'm there. 7 Q. After you review Exhibit 9 sufficiently, can 8 you tell me if you recognize it? 9 A. Yes. This is the memorandum that Sergeant 10 Pfarr had written. 11 Q. Early on in your investigation, did you possess 12 this? 13 A. Yes. 14 Q. Give me a minute or two, please. 15 THE HEARING OFFICER: Okay. 16 BY MR. PALMER: 17 Q. And did you conduct this internal affairs 18 investigation, as assigned? 19 A. Yes, I did. 20 Q. Did you conduct interviews concerning that 21 investigation? 22 A. Yes. 23 Q. Did you interview Sergeant Pfarr? 24 A. Yes. 25 Q. Lieutenant Smith? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1387 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 291 1 A. Yes. 2 Q. Detective Stahnke? 3 A. Yes. 4 Q. And did you record those interviews? 5 A. Yes, I did. 6 Q. Ultimately, did you interview Mr. Waddell? 7 A. Yes. 8 Q. Do you recall the date on which you did that 9 interview? 10 A. I believe it was December 12th, 2013. 11 Q. And did some of the information that you 12 received from Mr. Waddell lead to follow-up interviews? 13 A. Yes. 14 Q. With Sergeant Pfarr? 15 A. Yes. 16 Q. And Lieutenant Smith? 17 A. Yes. 18 Q. And at least one civilian? 19 A. Yes. 20 Q. Do you remember who that was? 21 A. It was a lady that owned the dance studio down 22 in Grover Beach. I don't recall her name without 23 looking at my notes. 24 Q. And, finally, did you prepare a written report 25 when you finished your investigation? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1388 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 292 1 A. Yes. 2 Q. And did you submit that report to somebody? 3 A. Yes. 4 Q. Who? 5 A. To Captain Staley. The chief, via Captain 6 Staley. 7 Q. Would you turn to Exhibit 7, please? Take a 8 moment. Look at 7. Tell me when you're done. 9 A. Yes. This is my report. 10 Q. Does it contain summaries of the interviews 11 that you did? 12 A. Yes. 13 Q. Does it also contain findings of misconduct on 14 your part? 15 A. Yes. 16 Q. And what findings of misconduct did you make? 17 A. I found that Officer Waddell was dishonest and 18 I sustained the fact that he provided false information 19 to Sergeant Pfarr during this incident and that he was 20 tardy to work. 21 Q. Okay. Let's stick with that for a minute. 22 Tardy to work, I get. 23 A. Yes. 24 Q. Can you tell me what part of the finding of 25 dishonesty as it relates to his interaction with Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1389 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 293 1 Sergeant Pfarr did you sustain? 2 A. The fact that he claimed that he received 3 permission from Lieutenant Smith to come in late to work 4 on October 19th. He told Sergeant Pfarr that he had 5 received that permission when, in fact, he had not 6 received that permission. That's what I sustained, that 7 he had not gotten permission. 8 Q. What was the truth? 9 A. I'm sorry. What was the truth? 10 Q. What was the truth? 11 A. That he had not gotten permission to show up 12 late for work that day. 13 Q. Did you find that Mr. Waddell did have some 14 kind of conversation with Lieutenant Smith the day 15 before October 19th? 16 A. He had seen him in the locker room and they had 17 had -- they exchanged hello's or hi's or pleasantries. 18 That was about it. 19 Q. Did you also sustain a finding that Mr. Waddell 20 had lied to Sergeant Pfarr not only in the text, but in 21 their verbal interaction? 22 A. Yes. 23 Q. Based on the same reasoning? 24 A. Yes. 25 Q. Is there -- why don't you go to Page 12 of Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1390 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 294 1 Exhibit 7, please. On the bottom of Page 12 -- I'll 2 wait till everybody gets there. 3 THE HEARING OFFICER: Okay. 4 BY MR. PALMER: 5 Q. On the bottom of Page 12, you see the headnote 6 that says, "Interview with Shannon Freeby"? 7 A. Yes. 8 Q. Track below that headnote and tell me which 9 paragraphs specifically relate to the summary of your 10 interview with Shannon Freeby. 11 A. I'm sorry. I don't understand that. 12 Q. Start with the headnote that says, "Interview 13 with Shannon Freeby." 14 A. Right. 15 Q. Let me pinpoint. Does the first paragraph 16 under the headnote particularly pertain to your 17 interview with Sergeant -- not Sergeant -- Shannon 18 Freeby? 19 A. Yes. 20 Q. Does the next paragraph pertain to your 21 interview with Shannon Freeby? 22 A. Yes. 23 Q. And then it goes over to Page 13? Top of Page 24 13, is that also part of the paragraph that begins at 25 the bottom of Page 12? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1391 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 295 1 A. Yes. 2 Q. Does the next interview -- next paragraph 3 pertain to the interview with Shannon Freeby? 4 A. No. 5 Q. Okay. What transition are you making there? 6 A. That's my conclusion. 7 Q. So if we interlineated a headnote of, maybe, 8 opinions and conclusions -- 9 A. Correct. 10 Q. -- would that be accurate? 11 A. I should have put a heading on there. 12 Q. Okay. The remainder of Page 13 over to Page 13 14, which ends the exhibit, is that, pretty much, your 14 analysis of this entire case? 15 A. Yes, it is. 16 Q. Okay. Did you also conclude and make a finding 17 that Mr. Waddell was dishonest with you in your 18 interview with him on December 12th, 2013? 19 A. Yes. 20 Q. In what ways? 21 A. Based on his overall behavior, the fact that he 22 was extremely nervous beyond the point that he couldn't 23 form a complete sentence when asked specific questions, 24 he was sweating profusely, which was kind of beyond 25 normal for someone in an interview in that setting that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1392 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 296 1 would be telling the truth, in my opinion. He was 2 visibly shaking at times. I would have to repeat 3 questions. He would not answer questions directly. He 4 had to be asked multiple times, even probed by his 5 attorney, to answer the question and to respond 6 directly. I -- 7 Q. Let me stop you for a second. 8 A. Yes. 9 Q. I think everybody around this table, and 10 perhaps a lot of people outside, would acknowledge that, 11 in that setting, there's going to be some nervousness. 12 A. Sure. 13 Q. Would you agree with that? 14 A. Absolutely. 15 Q. Was this the first internal affairs 16 investigation you'd ever done? 17 A. No. 18 Q. Was this the first interview of a subject 19 officer you'd ever done? 20 A. No. 21 Q. They're always a little bit nervous? 22 A. Absolutely. 23 Q. Was this different in some way? 24 A. Yes. 25 Q. How? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1393 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 297 1 A. Just the facts that I pointed out. When asked 2 specific questions that were yes or no in response, he 3 wouldn't answer yes or no. He would stutter and stumble 4 and answer in complete incomprehensive paragraphs and 5 wouldn't answer them directly. There were times that he 6 had to be prompted by his attorney to answer the 7 question and directed, so I take that as a no, can you 8 re-ask the question at times. So his nervousness went 9 beyond that of a normal interview. 10 Q. Did you and I meet yesterday morning? 11 A. Yes, we did. 12 Q. Did I ask you to do some homework between 13 yesterday and today? 14 A. Yes. 15 Q. What did I ask you to do? 16 A. You asked me to review my reports and study 17 them and make sure that I came in here with the 18 knowledge of my reports and tell the truth. 19 Q. And did we also talk about the subject matter 20 yesterday that we've been talking about today? 21 A. Yes. 22 Q. Did I ask you to go home and review your 23 interview transcript with Mr. Waddell? 24 A. Yes. 25 Q. And pick out a couple of examples of what Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1394 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 298 1 you're talking about? 2 A. Yes. 3 Q. Did you do that? 4 A. Yes. 5 Q. Can you take us through that, please? 6 A. Many of the points that he alluded to on many 7 occasions were the facts that he did not -- when he 8 tried to explain to Sergeant Pfarr that he had told -- 9 that he'd got permission from Lieutenant Smith, they 10 weren't that I got permission yesterday, they were, 11 well, I got permission in the past, but he never told 12 him that. It was -- but that's how he tried to explain 13 it. 14 So not only did he -- he came in and he 15 received -- or he texted Lieutenant Smith -- I'm 16 sorry -- Sergeant Pfarr, he texted him that I got 17 permission from Lieutenant Smith yesterday, said I could 18 come in late or at 11: 30, he's okay with that, he then 19 went into his office -- Sergeant Pfarr's office and then 20 verbally told him that, but he never told him that, 21 well, I got permission from him a while back and that 22 was a blanket statement, because I specifically asked 23 him when he got permission in the past from Lieutenant 24 Smith to come in late, did you think that was a blanket 25 statement that you could come in any time you want late, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1395 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 299 1 and he said yes, and he felt that he could come in 2 late. 3 Q. Did I provide you with the actual transcript of 4 your interview with Mr. Waddell? 5 A. Yes. 6 Q. In that book, in the exhibit book, if you turn 7 to Exhibit 21, take a look at 21 and tell me when you're 8 done. 9 A. What part of it do you want me to look at? 10 Q. Does that look like the transcript of the 11 interview that I gave you yesterday? 12 A. Yes. 13 Q. And did you spend some time with that? 14 A. I did. 15 Q. Do you have your own copy in your book there? 16 A. I do. 17 Q. Did you highlight some -- did you highlight and 18 mark some areas that you thought illustrated what you 19 explained? 20 A. I did, yes. 21 Q. Can you take us through and give us a page 22 reference and paragraph? First off, actually, before 23 you do that -- 24 A. Sure. 25 Q. -- did you -- at the beginning -- at some time Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1396 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 300 1 in the beginning of the interview, did you advise 2 Mr. Waddell that he had to tell the truth in this 3 interview? 4 A. Well, I ordered him that he had to speak to us, 5 yes. 6 Q. And did you warn him that false statements 7 would result in severe disciplinary action? 8 A. Absolutely. Yes. 9 Q. Tell us where you want to go to first. 10 A. The first part I highlighted was on Page 5 at 11 the very bottom. 12 Q. Paragraph begins, "Yes, that's" -- 13 A. Yes. 14 Q. -- "when I texted"? 15 A. Yes. 16 Q. Take us through it. 17 A. Before that, I was questioning him about the 18 text messages and I said, and then you again texted 19 him -- or texted him back saying you, basically, had 20 talked to Smith yesterday about coming in at 11: 00 21 hours, which meant 11: 30, and he said fine no problem. 22 I'm sorry? 23 MS. CASTILLO: Did you read 11: 30? I didn't -- 24 THE WITNESS: I was reading mine from here. 25 That should have been 11: 30 hours. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1397 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 301 1 MS. CASTILLO: So the transcript's wrong? 2 THE WITNESS: I don't know if they mistyped 3 that or I said it wrong, but he was coming in at 11: 30 4 hours, not 11: 00. 5 THE HEARING OFFICER: So the record just 6 reflects that the transcript that we're looking at here 7 on Page 5 of Department's 21, the thing you were talking 8 about, it says coming in at 11: 00 hours; is that 9 right? 10 THE WITNESS: Yes, sir. 11 THE HEARING OFFICER: But your testimony is 12 that that's not an accurate whatever? 13 THE WITNESS: According to Sergeant Pfarr, he 14 had talked to Lieutenant Smith about coming in at 11: 30 15 hours instead of 11: 00 hours. So I'm not sure if that's 16 correct or not, but he had talked about coming in a half 17 an hour late. 11: 00 hours was the time he was supposed 18 to come in. 19 MR. PALMER: Right. 20 THE WITNESS: So regarding his statement when 21 responding to that, he said, yes, that's what I texted 22 him. So he admitted that he texted him that, but, 23 again, that message is not what my intention was. My 24 intention is that message was, actually, I had talked to 25 him yesterday. So he admits here that he talked to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1398 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 302 1 Lieutenant Smith yesterday, not that I had seeked 2 approval for coming in late on this day and that message 3 is wrong. 4 So he continues, throughout his testimony, to 5 allude or imply that he talked to Lieutenant Smith 6 yesterday. He never really says that he gave me 7 permission yesterday, but he implies during this entire 8 interview that, well, I talked to Lieutenant Smith 9 yesterday, he gave me permission to come in at 11: 30. 10 That was the testimony, I felt. On Page 6, in the long 11 paragraph -- 12 BY MR. PALMER: 13 Q. Begins Waddell? 14 A. Begins, "that's," yes, sir. In the second 15 paragraph, I highlighted -- it was -- it's kind of hard 16 to read because it doesn't really form complete 17 sentences. "It was that, not that. I didn't seek 18 permission from this for this particular day. I know 19 that I didn't have permission for this day to come in 20 late. Again, my explanation was that I was trying to 21 convey in the text message was that I had permission in 22 the past and so that this message was me trying to 23 convey I had permission before. So I thought it would 24 be okay if I just came in a little late -- bit late for 25 the shift." Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1399 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 303 1 Q. What's the problem with that statement? 2 A. That he's saying that he knew he wasn't 3 supposed to come in late, but he implied that he spoke 4 to Lieutenant Smith, he implied to Sergeant Pfarr that I 5 spoke to Lieutenant Smith and he said I could come in 6 late. 7 Q. Did Mr. Waddell acknowledge in this paragraph 8 that he did not have permission to come in late on 9 October 19th? 10 A. He says, "I didn't have permission to come in 11 late on this date." 12 Q. Yet, did you find that's the exact thing that 13 he said to Sergeant Pfarr? 14 A. I don't know if that's the exact thing he said 15 to Sergeant Pfarr. 16 Q. That's the precise notion that he conveyed to 17 Sergeant Pfarr, that he had specific permission? 18 A. Yes, yes. He did -- that's what he implied to 19 Sergeant Pfarr, that he did have specific permission. 20 That's what the text implied, as well. 21 Q. Anything else? 22 A. Right down below on this, on Waddell, and it 23 begins, "uh," again and a couple sentences down where he 24 says, "He asked me, you know, if I got approval from 25 Smith and I said, well, I, again, I said that I had Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1400 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 304 1 approval before. Um, I think what I probably tried -- 2 what I conveyed to him was probably that I had got 3 permission for this incident, but I don't remember 4 exactly what the conversation was in detail of what I 5 would have said to him or how I worded things." 6 So when he said I had gotten permission for 7 this incident, to me, that implies that he got 8 permission for this incident. I don't -- I can't see 9 that any other way. 10 Q. Did you, in your review of this transcript, 11 note any times when Mr. Waddell was directly 12 contradicting the previous statements he'd made? 13 A. Yes, I did. 14 Q. Can you find that? 15 A. On Page 11, all the way at the bottom. 16 Q. Still on Exhibit 21? 17 A. Yes. On the -- on my name, Bledsoe, second to 18 the last one where I said, "Okay. Let's go back to the 19 18th though when you were in the locker room with 20 Lieutenant Smith and he was in there. Did you have a 21 conversation with him this day?" He said no. 22 Q. And why is that contradictory to what he said 23 before? 24 A. Because he says that he's had -- he's had 25 conversations with him and he talked to him, and you go Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1401 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 305 1 to the very next page on Page 12 and it says, "Did you 2 tell Sergeant Pfarr," at the very top, "you had a 3 conversation in the locker room with Lieutenant Smith, 4 though?" 5 "I think I might have said I talked to him." 6 So that's contradictory to what -- if he told 7 Sergeant Pfarr he had a conversation with him, yet, he 8 told me he didn't, that contradicts what he said. 9 Q. Okay. Would it be safe to say that you found a 10 few references going through the transcript today and -- 11 today and yesterday that you could articulate today? If 12 I asked you to, would you go through the transcript ad 13 nauseam? 14 A. Yes. 15 Q. Is there any other part of the transcript that 16 I haven't asked you about that's different from what 17 we've been talking about that you think is important? 18 A. No. I think it all, kind of, flows the same -- 19 Q. Same way? 20 A. -- throughout the whole transcript. 21 Q. Okay. After you completed your interview with 22 Mr. Waddell on December 12th, 2013 -- about what time 23 did you start your interview? 24 A. It was in the afternoon. I have to refer to 25 it. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1402 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 306 1 Q. On Page 1 of Exhibit 21, the introductory 2 paragraph talks about beginning at 3:33 in the 3 afternoon. Does that sound about right? 4 A. Yes. 5 Q. Do you remember how long your interview went? 6 A. It was over an hour, approximately an hour. 7 Q. At some point, you stopped the interview to 8 excuse Mr. Waddell? 9 A. Yes. 10 Q. Did you then subsequently have some sort of 11 face-to-face meeting with others in the department? 12 A. Yes. 13 Q. And what was that about? 14 A. I notified Captain Storton and probably Captain 15 Staley, as well, of my opinions of this interview and my 16 findings. 17 Q. If the interview ended somewhere around 4:30 18 p.m., what was the time span of the interview ending and 19 you talking to the captains? 20 A. Probably within the hour. Probably half-hour, 21 an hour. 22 Q. Was that a pre-planned meeting or something you 23 called or something they wanted you to do, or what? 24 A. No. I just make it a point to notify my 25 supervisors when I'm involved in situations like this, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1403 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 307 1 especially something of this significance. 2 Q. Okay. So who was present at the meeting? 3 Captain Storton? 4 A. I wouldn't say it was a meeting, but I notified 5 him. 6 Q. At the discussion, who was present at the 7 meeting -- at the discussion? 8 A. Captain Storton. 9 Q. Anybody else? 10 A. Captain Staley might have been there. I don't 11 recall, specifically. 12 Q. Police chief? 13 A. Actually, I do remember going into the chief's 14 office and discussing this with him, yes. 15 Q. Is this still on December 12th? 16 A. Yes. 17 Q. And did you explain and discuss your reaction 18 to having interviewed Mr. Waddell that day? 19 A. Yes. 20 Q. What did you tell him? 21 A. I told him that I believed he was dishonest 22 during his questioning about this incident with Sergeant 23 Pfarr. 24 Q. Did you give him details? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1404 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 308 1 Q. Briefly? 2 A. Yes. 3 Q. What were they? 4 A. That I felt that he was dishonest and that he 5 lied to Sergeant Pfarr and that he was dishonest in the 6 interview, as well. 7 Q. Do you know what the purpose of having that 8 discussion with you was, if any? 9 A. Of having with them? 10 Q. Yes. 11 A. It was some significant integrity issues having 12 an officer out in the field that's not being honest. 13 Q. Do you know if there's any pending decision 14 that had to be made? 15 A. Yes. 16 Q. What? 17 A. Removing him from the field, administrative 18 leave. 19 Q. Okay. And how did the -- whoever was at the 20 meeting, the two captains, the chief, all three of them 21 or some part of them, what was their reaction to your 22 information? 23 A. The decision was made that he was going to be 24 taken out of the field and put on administrative leave. 25 Q. And do you know if that happened that same day? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1405 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 309 1 A. Yes, it did. 2 MR. PALMER: Nothing further. 3 THE HEARING OFFICER: Cross-examination? 4 MS. CASTILLO: Yes, please. 5 6 CROSS-EXAMINATION 7 BY MS. CASTILLO: 8 Q. You believe that -- well, first, hi. 9 A. Hi. 10 MR. PALMER: I'm sorry. I missed that first 11 one. 12 MS. CASTILLO: Hi. 13 MR. PALMER: Hi. Got you. 14 THE HEARING OFFICER: Being friendly. Need a 15 couple minutes? 16 MS. CASTILLO: Yes, please. 17 THE HEARING OFFICER: Need five? Ten? 18 MS. CASTILLO: Ten. 19 THE HEARING OFFICER: Okay. Let's take ten. 20 (Recess.) 21 THE HEARING OFFICER: Back on the record. 22 Cross-examination of Bledsoe. Ms. Castillo. 23 BY MS. CASTILLO: 24 Q. So, Lieutenant, you've been a police officer 25 for 28 years? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1406 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 310 1 A. Yes. 2 Q. And how long a lieutenant? 3 A. About two and a half years. 4 Q. And how long were you a sergeant prior to that? 5 A. Almost ten years. 6 Q. And any law enforcement experience other than 7 San Luis Obispo P.D.? 8 A. Yes. I've worked at the Irvine Police 9 Department for eight and a half years and Orange County 10 Sheriffs about two and a half and I was a reserve in 11 Fresno County for about a year and a half. 12 Q. And I see special enforcement detail. What was 13 that? 14 A. Basically, narcotics and gangs down in Irvine, 15 as well as narcotics team and S.W.A.T., and, up here, I 16 was a narcotics team, SORT, is what they called it, 17 Situation Oriented Response Team, which is now our SET 18 team, and traffic officer and traffic sergeant. 19 Q. Okay. And then you said administration is -- 20 A. I was the administrative sergeant -- 21 Q. Okay. 22 A. -- in charge of -- basically, it's overseeing 23 people going to schools and doing administrative 24 functions with the department, training in 25 administration duties. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1407 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 311 1 Q. Does that include supervising records? 2 A. No. 3 Q. Okay. For department. 4 THE HEARING OFFICER: Are you picking this up 5 okay? 6 THE COURT REPORTER: Yeah. 7 THE COURT: Sometimes it's good if you turn 8 this way. She's doing good. So I'm going to move over 9 here. 10 THE WITNESS: Sorry. I'll try to be neutral. 11 BY MS. CASTILLO: 12 Q. And then you said you were in detectives? 13 A. I'm in detectives now. 14 Q. Oh, okay. Were you only in detectives as a 15 lieutenant or... 16 A. Yes. But Special Enforcement Team is an 17 investigative function. 18 Q. Okay. And how many police reports do you think 19 you've written over the course of your career? 20 A. Thousands. 21 Q. And interviews, how many, do you think, of 22 those you've conducted? 23 A. I'd have to say thousands. I don't know. A 24 lot. 25 THE HEARING OFFICER: Gazillions, maybe. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1408 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 312 1 BY MS. CASTILLO: 2 Q. Okay. And did you ever go to, they call them, 3 IA schools or internal affairs schools? 4 A. Yes. I went to IA school. 5 Q. When was that? 6 A. Probably around 2008 or '09. 7 Q. Was that with San Luis Obispo P.D.? 8 A. Yes. 9 Q. Okay. And prior to Officer Waddell's 10 investigation that you just testified about, which we've 11 been calling the CAT investigation, had you conducted 12 any other internal affairs investigations for San Luis 13 Obispo P.D.? 14 A. Yes. 15 Q. Approximately, how many? 16 A. Three, I think. 17 Q. Okay. And were those under the direction of 18 then Chief Gesell? 19 A. Not all of them. Chief Linden was here prior. 20 Q. Okay. 21 THE HEARING OFFICER: I'm sorry. The chief? 22 THE WITNESS: Linden, L-I-N- D-E-N. 23 THE HEARING OFFICER: Okay. Thank you. 24 BY MS. CASTILLO: 25 Q. So, primarily, did you get your assignment to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1409 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 313 1 do this investigation from Captain -- from which 2 captain? 3 A. Captain Storton is the one that assigned me. I 4 worked directly under his supervision. 5 Q. Okay. Is there one captain that handles 6 administrative duties and one captain that handles 7 patrol duties? 8 A. There's an operations captain, which is Captain 9 Staley's function, and an administrative captain, which 10 is Captain Storton. Captain Storton oversees my 11 detectives and records and dispatch administration. 12 Q. Okay. 13 A. So he's my direct boss. 14 Q. Captain Storton? 15 A. Storton, yes. 16 Q. Okay. And so is he the one you would report 17 to, for the most part, on this case? 18 A. Yes. 19 Q. Now, you said that the detective positions came 20 up in October of 2013? 21 A. I think the memo initially came out, but the 22 position opened -- we put them out a couple months in 23 advance. So the memos came out in advance and I think 24 the positions, actually, were coming up that -- I think 25 January, or so. I don't recall, specifically, but they Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1410 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 314 1 come out in advance -- a couple months in advance of the 2 positions actually being filled. 3 Q. So you can submit an interest memo and then -- 4 A. Correct. 5 Q. -- go through the process and then get the 6 position? 7 A. Correct. 8 Q. So when the position is opened, then you apply, 9 oral boards and all of that, right? 10 A. Yes. 11 Q. So what is the process to becoming a detective? 12 Tell us. 13 A. Well, initially, you have to be qualified. You 14 have to be here a minimum of a year and you have to meet 15 their minimum qualifications, to being off probation, 16 and depending on how many people put in, you can be on 17 probation if no one else puts in, but, generally, it's 18 at least a year working here. 19 After the memos are accepted, there's an oral 20 interview and then we will go to a staff meeting, and 21 usually it's a staff decision. We'll go round table and 22 discuss, by staff, who is the person's initial 23 supervisor and we'll go by, pretty much, how the person 24 was rated during the interview, and that doesn't always 25 determine who gets selected. It's kind of the need of Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1411 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 315 1 the department, the position and the person for 2 developmental purposes. There's a variety of reasons 3 why we might put a person in the position, but it's 4 just, usually, oral board and staff decision. 5 Q. Okay. And so, really, to be eligible, you only 6 have to have worked here one year, unless you're on 7 probation and, really, no one else is interested? 8 A. I believe that's for -- for that detective 9 position, yes. 10 Q. Okay. And then you write an interest memo. 11 Do officers usually submit a resume or 12 something with that? 13 A. Yeah. And that would go to the administrative 14 sergeant -- 15 Q. Okay. 16 A. -- and they would choose a calendar date for 17 the interview and that sort of thing. 18 Q. Okay. And who sits on the oral boards? 19 A. It varies. Sometimes it will be -- the 20 administrative sergeant will sometimes make that 21 selection, sometimes it will be the detective 22 lieutenant. Usually, we get someone from outside of the 23 department, usually one person and then a couple people 24 from within a department, a former detective or a 25 sergeant, lieutenant and someone outside. It can vary. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1412 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 316 1 Q. And sometimes the outside person is to just 2 kind of have an independent perspective; would you 3 agree? 4 A. Yes. 5 Q. And when you said their initial supervisor, 6 that would be their direct supervisor, right, getting 7 input from their direct supervisor? 8 A. During the staff meeting, we'll go round table 9 and talk about each candidate and their qualifications 10 and who should be selected when we're making the 11 selection for the position. 12 Q. Okay. Is that staff meeting a group staff 13 meeting? 14 A. It's sergeants and above and supervisors from 15 records and dispatch, as well. 16 Q. Okay. Are there many staff meetings? 17 A. Once a month. 18 Q. Okay. And so when Sergeant Pfarr came to you, 19 specifically, was that a mini detective staff meeting? 20 A. That wasn't even a meeting. It was just him 21 and I. 22 Q. Okay. Was that documented for the purposes of 23 the upcoming staff meeting for detective candidate 24 selection? 25 A. There was no documentation. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1413 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 317 1 Q. Okay. Did that get brought up when there was a 2 detective opening selection or is that after this whole 3 investigation happened? 4 A. It didn't get brought up because Kevin never 5 put in for the position. 6 Q. Okay. When was that opening, again? 7 A. I think it was in January -- 8 Q. Oh, okay. 9 A. -- when those positions were filled. 10 Q. In January 20 -- 11 A. '14. 12 Q. 2014? 13 A. Yes. 14 Q. When he was on administrative leave? 15 A. Yes. I believe so. 16 Q. Okay. When Sergeant Pfarr came to you with 17 these integrity issues, did you document them, in any 18 way? 19 A. No. 20 Q. You had testified just on direct examination 21 that there was, you know, concern about significant 22 integrity issues with an officer out in the field that 23 is dishonest. Those were your findings, right? 24 A. Yes. 25 Q. But those were only because you made findings, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1414 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 318 1 right, not just because you had concern from one 2 supervisor? 3 A. That was after a complete investigation. That 4 was not after -- when the sergeant -- there was 5 nothing -- with Sergeant Pfarr's and I's conversation, 6 that was just a conversation. There was nothing -- 7 there was nothing proven in that. It was just a 8 conversation and his opinion. 9 Q. No reason to even, kind of, look into it at 10 that point, right? 11 A. It was a concern of his and that's why I didn't 12 review it any further and I wasn't his supervisor and he 13 had no evidence that any wrongdoing was done. That's 14 why I told him, if it's a concern, bring it to 15 Lieutenant Smith so that the information is there. 16 Q. And Lieutenant Smith is your peer? 17 A. Yes. 18 Q. Okay. And did you follow up with Lieutenant 19 Smith that his subordinate had done as you directed him 20 to do? 21 A. Not immediately, no. We may have discussed it 22 months down the road, but not immediately. We worked 23 different shifts and I didn't see him that often. 24 Q. So you didn't follow up to see if he had 25 followed your order about that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1415 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 319 1 A. I did not. I told Sergeant Pfarr to do that. 2 Q. Okay. And, after all, it was just an opinion, 3 right? 4 A. That's the perception I got, yes. 5 Q. When you did interview him on the texting, CAT 6 investigation, he did give you a lot of opinions in that 7 interview, as well, correct? 8 A. Sergeant Pfarr? 9 Q. Yeah. 10 A. Yes. 11 Q. Okay. So you went through the transcript that 12 Mr. Palmer gave you, right? 13 A. Yes. 14 Q. When was the first time you saw this 15 transcript? 16 A. Yesterday. 17 Q. First time, ever? 18 A. First time I've seen the entire transcript, 19 yes. 20 Q. Did you compare it to the audio? 21 A. No. 22 Q. Okay. Can you flip through the book and find 23 the audio recordings of your interviews with your 24 witnesses? 25 A. Do you remember what number that is? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1416 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 320 1 Q. No. 2 A. The audio recordings? 3 THE HEARING OFFICER: The transcript? 4 MS. CASTILLO: No. Your audio recordings that 5 you did with your witnesses. 6 MR. PALMER: Everybody in the room, except him, 7 knows they're not there. 8 THE HEARING OFFICER: Thank you for pointing 9 that out because I was mystified, too. 10 MR. PALMER: I'm not trying to be a jerk, 11 but... 12 BY MS. CASTILLO: 13 Q. Have you reviewed this entire packet? 14 A. I have not. 15 Q. Have you listened to the audio recently? 16 A. Not recently. 17 Q. Did you listen to the audio when you wrote your 18 summaries? 19 A. Thoroughly. 20 Q. You did? 21 A. Yes. 22 Q. Okay. 23 A. If you compare my report to this transcript, 24 which I did, you'll find that they are verbatim, pretty 25 close. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1417 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 321 1 Q. Okay. 2 A. In the quotations. 3 Q. Okay. You made some comments about your 4 opinions regarding the appearance and demeanor of my 5 client. Do you remember that? 6 A. Yes. 7 Q. What were you wearing that day when you 8 interviewed him? 9 A. A shirt and tie like I am today. 10 Q. What was he wearing that day? 11 A. I don't recall. Specifically, I don't recall. 12 Q. Do you know if he was wearing a full suit? 13 A. I think he is wearing casual clothes like -- a 14 suit -- I believe -- I don't specifically remember. He 15 wasn't wearing a uniform. 16 Q. So was it casual clothes or was it -- 17 A. I don't remember. 18 Q. Okay. How many times had you interviewed him 19 in the internal affairs process previously? 20 A. None. I've never interviewed him in that type 21 of a process. 22 Q. So when your comparison was that he seemed 23 extra nervous compared to everyone else, you were just 24 comparing him to everyone else, not him previously, 25 correct? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1418 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 322 1 A. Not necessarily. I've had many conversations 2 with Kevin before. 3 Q. No. I'm saying in an internal affairs 4 situation. True? 5 A. I don't know that I can compare him with 6 everybody else. I'm just watching his behavior, 7 individually. 8 Q. Well, my question was, you said he seemed more 9 nervous than other people do in this situation. That's 10 fair to say, right? 11 A. If I said that, I felt that he was more nervous 12 than he should have been in a situation like that for 13 someone that's telling the truth and should be telling 14 the truth. 15 Q. You did tell him that he was there to be 16 interviewed about false statements, though, right? 17 A. Yes. That's what the allegations were. 18 Q. Okay. So right after you interviewed him, you 19 went to the captains and gave them a briefing, right? 20 A. Yes. 21 Q. After you made your findings, right? 22 A. Yes. 23 Q. And then you talked to the chief, right? 24 A. Yes. 25 Q. And that was a Skelly officer, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1419 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 323 1 A. Eventually, yes. 2 Q. Okay. And this interview with my client lasted 3 about an hour, right? 4 A. Approximately, yeah. 5 Q. And I believe Mr. Palmer helped you with the 6 time at 3:30 being the time that you interviewed 7 Mr. Waddell? 8 A. I believe so. 9 Q. Okay. What time is 16: 55? 10 A. That would be 4:55 p.m. 11 Q. Okay. So 3:33. About an hour -- 12 A. An hour and 20 something. 13 Q. Okay. So at 4:33, or 4:30, you finished your 14 interview with my client, thereabouts, right, if it 15 lasted an hour? 16 A. Yes. 17 Q. And then you made your findings, right? 18 A. Yes. 19 Q. And then you made your notifications to the 20 captain and the chief, right? 21 A. Yes. 22 Q. And then you walked over and interviewed 23 Lieutenant Smith at 16: 55 on December 12th, 2013? I 24 think it is Page 15 in this transcript. 25 MR. PALMER: 15? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1420 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 324 1 THE HEARING OFFICER: Which exhibit number are 2 we looking at? 3 MS. CASTILLO: 15. 4 THE HEARING OFFICER: Exhibit Department's 5 15? 6 MS. CASTILLO: Right. 7 BY MS. CASTILLO: 8 Q. That is what it says, correct, at the top? 9 A. Yes. 10 Q. Okay. So -- and that was right after you 11 finished your interview with Officer Waddell, right? 12 A. I don't recall interviewing Lieutenant Smith on 13 the 12th after my interview with Kevin. 14 Q. Okay. 15 A. I don't have my file here. So my notes would 16 be in that, but I don't know. 17 Q. You had homework last night to review your 18 entire file, right? 19 A. I didn't have my file. 20 Q. What homework did you do last night? 21 A. I reviewed the transcripts that I have here. 22 Q. So the homework that you were given by 23 Mr. Palmer only included reviewing the transcripts that 24 he made and gave to you last night? 25 A. No. I reviewed my report, as well, my Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1421 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 325 1 investigative report, and then the transcripts. 2 Q. The transcripts would also include that of 3 Lieutenant Jeff Smith, though, right? 4 A. But these don't have my handwritten notes. 5 This might be correct. I just don't recall if that's 6 accurate there. I don't remember interviewing 7 Lieutenant Smith directly after that interview with 8 Kevin or not. 9 Q. Okay. But you reviewed your report, right? 10 A. Yes. 11 Q. So it would have -- 12 A. And it very may well have been because it was 13 only then that during the initial interview with Kevin 14 that he revealed to me that Lieutenant Smith had given 15 him permission in the past. So I may have went back and 16 interviewed Lieutenant Smith right after that. 17 Q. Okay. Let's talk about that. 18 A. Okay. 19 Q. So on Page 15, it's your Page 2 -- 20 A. Yes. 21 MR. PALMER: I'm sorry. Where are we? 22 MS. CASTILLO: You're at Page 2 of your 23 exhibit. 24 MR. PALMER: Of which one? 25 MS. CASTILLO: 15. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1422 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 326 1 MR. PALMER: Okay. Thank you. 2 BY MS. CASTILLO: 3 Q. Can you just read from the top -- my numbers 4 are different -- to refresh your recollection? 5 A. Where would you like me to start? 6 Q. Did you review this transcript yesterday, or do 7 you need more time? 8 A. No, I did not review this. I just reviewed my 9 transcript interview with Kevin Waddell. 10 Q. Oh. Okay. Well, I'll give you a little more 11 time to look. I will refer you to you asking Lieutenant 12 Smith, "Do you have any of the sent e-mails that you 13 sent for CAT overtime regarding" -- " regarding that." 14 Do you see that? It's -- 15 A. Yes, yes. 16 Q. Okay. And Lieutenant Smith says, "I just had. 17 I don't. I wish I did." Do you see that? 18 A. Yes. 19 Q. And you say, "The sent items to?" 20 A. Yes. 21 Q. And it says, "Because I deleted all of them." 22 A. Yes. 23 Q. "I -- Sergeant Pfarr might," and you see that, 24 right? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1423 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 327 1 Q. And then he says, hey -- well, summarizing, 2 maybe go ask Sergeant Pfarr, right? 3 A. Yes. 4 Q. Okay. So then go back to Page 1 and then where 5 you see where it says, "Do you have any saved e-mails 6 from Officer Waddell asking for time off for come in 7 work late or early," at the bottom, do you see that? 8 A. Yes, I do. 9 Q. And he says, "No. I don't have any. I deleted 10 because I just emptied it two days ago." 11 A. Okay. 12 Q. This is in December 20 -- I'm sorry 12/ 12/2013, 13 right? 14 A. Yes. 15 Q. And when were you told to start doing an 16 investigation on this CAT situation with Officer Waddell 17 and Lieutenant Smith and Sergeant Pfarr? 18 A. When Captain Storton instructed me to, 19 initially, back in October. 20 Q. Okay. And, obviously, Lieutenant Smith knew 21 about this in October, right? 22 A. Not necessarily. I don't discuss internal 23 affairs investigations with -- the details of what 24 they're all about with other people not involved. 25 Q. Okay. But did you have any conversation during Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1424 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 328 1 the times you were interviewing Lieutenant Smith where 2 he had said, um, I talked to Sergeant Pfarr on the 19th 3 and he said, um, I think you were lying and -- 4 A. At this point in time, he knew about it. Yes, 5 he knew about this. 6 Q. So he's deleting e-mails when he knows about 7 it? Is that what this says? 8 A. Apparently, he deleted e-mails. 9 Q. Officers in your police department know about 10 Penal Code Section 135.5, right? 11 MR. PALMER: Objection. Relevance. 12 THE HEARING OFFICER: Well, they know about it, 13 I guess. I don't know. Are you going to make an 14 accusation here? 15 MR. PALMER: They always do. 16 THE HEARING OFFICER: I'm going to allow it. 17 Go ahead. 18 BY MS. CASTILLO: 19 Q. They do, right? 20 A. I can't tell you if they do not or not. 21 Q. Do you? 22 A. Not necessarily, no. 23 Q. Destroying, concealing, altering evidence in an 24 internal affairs investigation? I mean, I don't want to 25 quote it because I don't know exactly the verbatim, but Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1425 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 329 1 it is exactly that. Do they know about that? They all 2 go to AI school, right? 3 A. Sure. No, they don't all. 4 Q. Okay. Anyways, so did you, as you're 5 investigating this, send a public records request or 6 something to get those e-mails that were deleted? 7 A. No, I did not. 8 Q. Okay. But you have access that I don't have 9 access to in the department to get e-mails that are -- 10 have been deleted from your systems, right, as an 11 investigator? 12 A. I'd have to go through our IT department and 13 they may or may not. 14 Q. Like subpoenas? I mean, that's what I have to 15 do. What do you have to do? 16 A. I'd have to go through our IT department to get 17 that. 18 Q. So did you do that? 19 A. I did not. 20 Q. Why? 21 A. I didn't think to do that. 22 Q. But you went to IA school? 23 A. That's correct. 24 Q. Okay. So -- okay. Did you make any findings 25 about Lieutenant Smith when you did this interview when Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1426 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 330 1 he said he was deleting evidence at 16: 55 hours? 2 MR. PALMER: Objection. Misstates the 3 evidence, argumentative. 4 THE HEARING OFFICER: I think you made your 5 point on this. So let's move on to something else. 6 BY MS. CASTILLO: 7 Q. Can you please turn to Exhibit -- Department's 8 Exhibit 21, Page 12? 9 On direct examination, you said that there was 10 some findings that you made specific to the fact that 11 Officer Waddell, in your interview with him, said that 12 he had talked to him, hadn't talked to him, that kind of 13 conversation. Do you remember that? 14 A. I'm sorry. About what? 15 Q. There was testimony on direct examination where 16 you were asking Officer Waddell had he seen Lieutenant 17 Smith in the locker room the day before, right? 18 A. Yes. 19 Q. Had there been conversation, right? 20 A. Yes. 21 Q. And Officer Waddell, according to this 22 transcript, said, "I think I might have said that I 23 talked to him. Well, we exchanged pleasantries." Do 24 you see that part of the transcript? 25 A. Yes, I do. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1427 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 331 1 Q. Okay. "I mean, we didn't have a conversation 2 per se, I -- the conversation, we didn't talk at length 3 about anything. We might have said hi, hey, how's it 4 going," right? 5 A. Yes. I see that. 6 Q. So that -- you had an issue with that being a 7 conversation versus an exchange of pleasantries and that 8 was a determinate factor in whether or not he had been 9 honest to you? 10 A. I had an issue with that because I don't 11 believe he told Sergeant Pfarr that. He told me that, 12 but he told Sergeant Pfarr that he spoke with Lieutenant 13 Smith in the locker room. He didn't go into detail -- 14 well, we didn't have a -- we just explained -- we just 15 had pleasantries. He said he talked with Lieutenant 16 Smith in the locker room. 17 Q. Okay. And, at some point, you, as the 18 fact-finder, because you're making findings, this comes 19 down to Kevin's explanation and Sergeant Pfarr's 20 interpretation, right? 21 A. And the text messages. 22 Q. Obviously, and the text message that you have, 23 the one screen shot, right? 24 A. That said a lot, yes, to me. 25 Q. Okay. I got it. On the conversation that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1428 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 332 1 Sergeant Pfarr had with Officer Waddell was not 2 recorded, was it? 3 A. No. 4 Q. We don't have a transcript that you just got 5 yesterday of that, do we? 6 A. No. 7 Q. Okay. You did find out that Officer Waddell 8 did have daughters in dance, though, right? 9 A. Yes. 10 Q. You were able to corroborate that, yes? 11 A. Yes. 12 MS. CASTILLO: Okay. I think that's all. 13 THE HEARING OFFICER: Do you want a break? 14 MS. CASTILLO: For my... 15 THE HEARING OFFICER: Do you still have some 16 more questions? 17 MS. CASTILLO: My direct. 18 THE HEARING OFFICER: Oh, you're done for now? 19 MS. CASTILLO: Right. 20 THE HEARING OFFICER: Well, then let's see if 21 we have any more questions on re-direct. 22 MR. PALMER: I do. 23 THE HEARING OFFICER: Okay. Go ahead. 24 /// 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1429 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 333 1 REDIRECT EXAMINATION 2 BY MR. PALMER: 3 Q. Okay. I want to tee back up the part of your 4 testimony where you were talking with Sergeant Pfarr, 5 Sergeant Pfarr came to you and gave you information 6 about the Bentley event. Got that? 7 A. Yes. 8 Q. I think, again, your best recollection, that 9 was in October of 2013? 10 A. Somewhere around there, yes. 11 Q. Okay. And you told him to tell Lieutenant 12 Smith? 13 A. Yes. 14 Q. Would it be your expectation that Sergeant 15 Pfarr, pretty quickly after he left your office, went 16 and told Lieutenant Smith the same thing he told you? 17 A. Yes. 18 Q. At that point, are you still in -- are you 19 still involved in the situation? 20 A. No. 21 Q. Are you out of it? 22 A. I would expect to be, yes. 23 Q. Whose -- in whose camp is it now? 24 A. Sergeant Pfarr's and Lieutenant Smith's. 25 Q. Okay. Any further looking into the Bentley Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1430 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 334 1 event, was that a decision that you were required to 2 make? 3 A. No, that was not. 4 Q. Okay. I'm going to ask you to do what we 5 sometimes refer to as toggling. Can you go to Exhibit 6 7, please? Are you at Exhibit 7? 7 A. Yes, I am not. 8 Q. Double-check. 9 A. That was upside down. Okay. Now I am. 10 Q. Okay. And we've established previously, and 11 concur with me again right now, that Exhibit 7 is your 12 internal affairs investigation report? 13 A. Yes. 14 Q. And did you summarize each of the interviews 15 that you did in this report? 16 A. Yes. 17 Q. Could you go to Page 3, please? Actually, 18 sorry, stay on Page 1. Do you see the headnote, 19 "Synopsis"? 20 A. Yes. 21 Q. The first line in the paragraph under 22 "Synopsis," does that refresh your memory as to the date 23 on which you were assigned to do this investigation? 24 A. Yes. 25 Q. What date were you assigned? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1431 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 335 1 A. Monday, October 28th, 2013. 2 Q. Okay. October 28th, 2013. Page 3, please. 3 On Page 3, does it begin where you summarized 4 your interview with Sergeant Pfarr? 5 A. Yes. 6 Q. And your interview with Sergeant Pfarr, 7 according to your summary, occurred on what date? 8 A. November 15th, 2013. 9 Q. Now, here's where we're going to do the 10 toggling. If you hold your place there at Exhibit 7, 11 Page 3, and flip to Exhibit 12, you see why we call it 12 toggling? 13 A. Yes. 14 Q. What is Exhibit 12? 15 A. It's a transcript interview of Sergeant Pfarr 16 by myself. 17 Q. Would this be the -- strike that. 18 The opening paragraph is attributed to you? 19 A. Yes. 20 Q. And it gives the day's date for the interview 21 of what? 22 A. November 15. 23 Q. If you toggle back from the first page of 24 Exhibit 12 to Page 3 of Exhibit 7, does that comport 25 with your summary? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1432 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 336 1 A. Yes. 2 Q. Now if we go back to 12, what time of day did 3 you do the interview? 4 A. 9:03. 5 Q. All right. So I'm going to write down here, 6 Pfarr, 11/ 15, 9:03 a.m. Okay? 7 A. Yes. 8 Q. The next interview you did, go back to Exhibit 9 7, was when? 10 A. I'm sorry. The next interview? 11 Q. Yes, sir. 12 A. November 15th. 13 Q. And you're picking that up from what page of 14 Exhibit 7? 15 A. Page 4, and it was with Lieutenant Smith at 16 09: 23 hours. 17 Q. Okay. November 15th, 09: 23? 18 A. Yes. 19 Q. Hold your position there on Page 4 of Exhibit 7 20 and flip over to Exhibit 13. What is Exhibit 13? 21 A. It's my interview transcript with Lieutenant 22 Smith. 23 Q. Does Exhibit 13 appear to be the transcript of 24 the interview you summarized back on Page 4 of Exhibit 25 7? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1433 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 337 1 A. Yes, it does. 2 Q. Do the dates line up, November 15, 9:23, on 3 both exhibits? 4 A. Yes. 5 Q. What's the next interview you did? 6 A. Would be with Detective Stahnke. 7 Q. And you're picking that up on what page of 8 Exhibit 7? 9 A. Page 6. 10 Q. What date? 11 A. It was on November 18th, 2013. 12 Q. November 18? 13 A. Yes. 14 Q. If you hold your place on Page 6 of Exhibit 7 15 and go to Exhibit 14, what's Exhibit 14? 16 A. My interview transcript with Detective Stahnke. 17 Q. Does 14 appear to be the transcript interview 18 that you summarized on Page 6 of Exhibit 7 of your 19 report? 20 A. Yes. 21 Q. Is there a date and stamp time of when you 22 began the interview? 23 A. Yes. 24 Q. On Exhibit 14, what's the date stamped? 25 A. November 18th, 11: 52 a.m. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1434 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 338 1 Q. If you go back to Page 6 of Exhibit 7, did you 2 actually give a time start in your summary? 3 A. Not on all of them. 4 Q. Okay. Now, we've seen three transcripts where 5 you open the interview with a date and time recordation. 6 Is that something you learned to do? 7 A. Yes. 8 Q. Where? 9 A. IA school, regular interview interrogation 10 school. 11 Q. Did you also do that in criminal investigative 12 interviews you did? 13 A. Yes. 14 Q. If they were recorded? 15 A. Yes. 16 Q. Okay. So, now, I've written down Pfarr, 17 November 15th at 9:03; Smith, November 15th at 9:23; and 18 then Stahnke, November 18. 19 So you did two interviews regarding this event 20 on November 15? 21 A. Yes. 22 Q. And then we have Stahnke on November 18. Okay. 23 What's the next interview you did? 24 A. It was Kevin Waddell. 25 Q. All right. And what date and time, according Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1435 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 339 1 to your summary, Exhibit 7? 2 A. December 12th, 2013, at 15: 33 hours. That's 3 3:33 p.m. 4 Q. And you're picking that up on Page 6, still, of 5 Exhibit 7? 6 A. Yes. 7 Q. So you only did one interview on November 18th; 8 am I picking that up right? 9 A. Yes. 10 Q. And that would have been Stahnke? 11 A. Yes. 12 Q. Okay. If you, again, keep your place, toggle 13 between Page 6 of Exhibit 7 to Exhibit 21. This is one 14 we've been spending a lot of time on, right? 15 A. Yes. 16 Q. What's 21? 17 A. My interview transcript with Kevin Waddell. 18 Q. Does Exhibit 21 appear to be a transcript of 19 the summary of your interview that you attributed 20 Exhibit 7, Page 6? 21 A. Yes. 22 Q. And did you give a time and date stamp? 23 A. Yes. 24 Q. On Exhibit 21? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1436 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 340 1 Q. What is it? 2 A. December 12th, 2013, 3:33 p.m. 3 Q. Does that comport with your summary when you 4 said 15: 33? 5 A. Yes. 6 Q. Is that the same hour and time? 7 A. Yes, it is. 8 Q. Now, if you go back to Exhibit 7, your summary 9 of Kevin Waddell's interview goes on for some number of 10 pages. 11 THE HEARING OFFICER: Is there a question or 12 are you just waiting for him to catch up? 13 MR. PALMER: Yeah. I'm waiting for him to 14 catch up. 15 THE HEARING OFFICER: Okay. 16 BY MR. PALMER: 17 Q. Did you find the end of the summary of 18 Mr. Waddell's -- 19 A. Yes. 20 Q. And what page does that end on Exhibit 7? 21 A. Page 11. 22 Q. What's the next interview you did? 23 A. Lieutenant Smith. 24 Q. This is an interview or a reinterview? 25 A. It's a reinterview. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1437 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 341 1 Q. What day? 2 A. December 12th, 2013. 3 Q. Is there a time depicted in your summary? 4 A. I did not put a time on this. 5 Q. Can you keep your place on Page 11, Exhibit 7, 6 and go to Exhibit 15? 7 A. Yes. 8 Q. What's Exhibit 15? 9 A. My reinterview with Lieutenant Smith. 10 Q. On what day? 11 A. December 12th, 2013, at 16: 55 hours. 12 Q. Does Exhibit 15 appear to be the transcript of 13 the interview or reinterview that you summarized on Page 14 11 of Exhibit 7? 15 A. Yes. 16 Q. And what time is depicted not in your summary, 17 but in the transcript? 18 A. 16: 55 hours. 19 Q. And what regular time is that? 20 A. That's 4:55 p.m. 21 Q. So I've written down what we've done now. We 22 did Mr. Waddell, December 12th at 3:33 a.m., correct? 23 A. Yes. 24 Q. And that lasted about how long? 25 A. About an hour, or so. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1438 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 342 1 Q. And then you reinterviewed Smith that same day 2 at 4:55 p.m.? 3 A. Yes. 4 Q. Did you do anything else on December 12th -- 5 strike that. 6 Did you do any other interview on December 7 12th? 8 A. No. 9 Q. Okay. Then what was the next thing you did 10 related to this case? 11 A. Notified my captain. 12 Q. All right. So when your -- and did that lead 13 to the discussion that we've had about administrative 14 leave with pay? 15 A. Yes. 16 Q. All right. How long did the reinterview with 17 Lieutenant Jeff Smith last, which began at 4:55 p.m.? 18 A. It was only a couple of minutes long. Less 19 than five minutes. 20 Q. I think the transcript's only two pages. 21 A. Yeah. 22 Q. What was the purpose of reinterviewing 23 Lieutenant Smith here? 24 A. To clarify with him whether or not he had given 25 Kevin permission to take time off in the past or come in Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1439 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 343 1 early or leave -- come in late or leave early on prior 2 shifts. 3 Q. And did Lieutenant Smith react to that 4 information? 5 A. Yes. 6 Q. What did he say? 7 A. He said that he did not want to be flexible for 8 that overtime shift because of -- the CAT overtime 9 was -- not specifically saying, but CAT overtime was a 10 politically-motivated position at that time, it was a 11 new position, and he didn't -- he wasn't going to be 12 flexible. He wanted the hours to be 11: 00 to 16: 00, 13 which is 4:00, on that. 14 Q. Did you open up that issue on Page 1 the 15 transcript, Exhibit 15, down at the bottom? 16 A. I'm sorry. Page 1? 17 Q. Page 1 of Exhibit 15, right down at the bottom, 18 there's a notation of you speaking. 19 A. Page 1 of 15? 20 Q. Yes, sir. 21 A. Yes. 22 Q. And then go over to Page 2, top of the page. 23 What was Lieutenant Smith's response? 24 A. Yes. 25 Q. What was it? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1440 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 344 1 A. He would have granted that permission for 2 specific days, not on a regular basis. 3 Q. And look at your next question. What's the 4 purpose of your next question? 5 A. My purpose was because I had asked Kevin if -- 6 specifically, if -- when he got permission, did you just 7 think that that was a blanket statement -- I asked 8 Lieutenant Smith if he'd given a blanket statement 9 permission. 10 Q. So was this here about blanket statement based 11 upon what Mr. Waddell told you in his interview with 12 you? 13 A. Yes. 14 Q. And what did Lieutenant Smith respond? 15 A. He said, no, that would be contradictory to 16 what the overtime was for. 17 Q. Then this interview ends with Lieutenant Smith, 18 right? 19 A. Yes. 20 Q. Fairly short interview? 21 A. Yes. 22 Q. And how long do you think it takes you to meet 23 up with the captains and the chiefs, and whoever captain 24 and chief are? 25 MS. CASTILLO: Objection. Misstates testimony. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1441 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 345 1 THE HEARING OFFICER: In what respect? 2 MS. CASTILLO: Well, are we saying after or 3 before? Okay. Vague as to time. 4 THE HEARING OFFICER: Okay. 5 BY MR. PALMER: 6 Q. If I misspoke, let me re-tee it up. 7 This interview -- the reinterview with 8 Lieutenant Smith happens December 12th, 2013, begins at 9 4:55 p.m. and is relatively short. 10 After it ended, how long do you think what time 11 took place between the end of the reinterview with 12 Lieutenant Smith and your meeting up with the captains 13 and the chief and whoever was there for this discussion 14 of this administrative hearing? 15 MS. CASTILLO: Objection. Misstates testimony. 16 His testimony was that he met and then -- he met after 17 Waddell's interview. 18 THE HEARING OFFICER: Um, I'm not sure -- 19 you're adding some people that he didn't meet with? Is 20 that your position? 21 MS. CASTILLO: The testimony of Lieutenant 22 Bledsoe was that, after the interview with Officer 23 Waddell, he met with the captains and the chief. 24 MR. PALMER: Let me withdraw it and go back. 25 THE HEARING OFFICER: Okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1442 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 346 1 BY MR. PALMER: 2 Q. Do you have a clear recollection now as to 3 whether or not you met with the chief and the captain 4 after Mr. Waddell's interview and before the reinterview 5 of Lieutenant Smith, or was it after both interviews? 6 Does that help you? Go ahead. 7 A. Yes, I do. 8 Q. Okay. What was it? Which was it? 9 A. I left for my interview with Officer Waddell 10 and I went back and I spoke with Lieutenant Smith. I 11 reinterviewed him and then I met with the captains. 12 Q. Okay. Do you remember about what time? 13 A. I met with the captains shortly after I met 14 with Lieutenant Smith. It was right after the interview 15 with him. 16 Q. Okay. And the subject matter of that 17 discussion with the captain and the chief, again, was 18 what? 19 A. His deception during the interview, his not 20 being honest during the interview. 21 Q. And the reason for having that meeting was a 22 decision? 23 A. A decision to place him on administrative 24 leave. 25 Q. Do you know if that was made that day? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1443 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 347 1 A. Yes, it was. 2 Q. Do you know about when? 3 A. It was later in the evening. I don't recall 4 exactly what time the chief and the captains made that 5 decision. 6 MR. PALMER: We're going to have copies made of 7 this. For now, I'm not going to write on it because 8 it's an original copy, but I'd like to have the 9 memorandum -- the City of San Luis Obispo Police 10 Department Memorandum dated December 16th, 2003, memo to 11 file from Captain Storton marked as Exhibit 23. 12 THE HEARING OFFICER: Are you going to ask the 13 witness about this? 14 MR. PALMER: Yes, I am. 15 THE HEARING OFFICER: Could we take a recess 16 and have it copied? 17 MR. PALMER: Sure. 18 THE HEARING OFFICER: Because I can't really 19 follow along, and I think everyone needs a copy. 20 MS. CASTILLO: Is it from the witness? 21 MR. PALMER: No. 22 MS. CASTILLO: Okay. I see. I didn't see his 23 name on it. 24 MR. PALMER: Right. It's just to refresh his 25 memory. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1444 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 348 1 THE HEARING OFFICER: But you want to offer it 2 into evidence? 3 MR. PALMER: I can just show it to the witness 4 and see if -- 5 THE HEARING OFFICER: If you -- if he's not 6 going to authenticate it, he's just going to refresh his 7 recollection, we don't need to have copies made. 8 MR. PALMER: Let's see if that works. 9 BY MR. PALMER: 10 Q. The memo has been previously described, 11 Lieutenant. Look it over. I know it's not your memo, 12 but look it over and tell me when you're done. 13 A. Yes. I remember Officer Waddell signing this. 14 Q. Okay. Was there some other document 15 accompanying this memorandum? 16 A. I believe there was a form that Officer Waddell 17 had to sign, an administrative notice. 18 Q. Okay. And does that help refresh your memory 19 as to what time on December 12th that all occurred? 20 A. Yes. 21 Q. What is it? 22 A. 19: 35 hours. 23 Q. Which would be? 24 A. 7:35 p.m. 25 Q. Does that line up in terms of your interview Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1445 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 349 1 with Mr. Waddell, your reinterview with Mr. Smith and 2 then the events that happened later that day? 3 A. Yes, it does. 4 MR. PALMER: Nothing further. 5 THE HEARING OFFICER: Cross? 6 MS. CASTILLO: Yes. 7 8 RECROSS-EXAMINATION 9 BY MS. CASTILLO: 10 Q. So regarding the timing of your reinterview 11 with Sergeant -- I'm sorry -- Lieutenant Smith, so now 12 it was before your discussion with the captains and the 13 chief. 14 Did you -- when you talked to them, did you 15 say, there might have been e-mails, but they're deleted, 16 but maybe Sergeant Pfarr has them, before we put him on 17 administrative leave? 18 A. No. Because the topic of e-mails never came up 19 from Officer Waddell. So I wasn't sure -- I don't 20 believe they did. I don't remember them coming up from 21 him. 22 Q. Let me get your transcript. Well, first, let's 23 look at your -- 24 A. During my interviews with him. 25 Q. First, look at your summary -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1446 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 350 1 A. Okay. 2 Q. -- in 7. 3 A. Number 7? 4 Q. Yes. 5 A. Okay. 6 Q. Okay. You said these summaries are verbatim 7 like your transcript, right? 8 MR. PALMER: Objection. Misstates the 9 evidence. 10 THE HEARING OFFICER: Which summaries are we 11 talking about? 12 BY MS. CASTILLO: 13 Q. Your summaries in 7, you compared it to your 14 transcript, right? 15 A. In the quotes that I put in my summary, they're 16 verbatim to the transcript that I read. 17 Q. Oh, the quotes. 18 A. Not every one of them. 19 Q. The quotes are, not the summaries? 20 MR. PALMER: Objection. Misstating the 21 evidence. He clearly stated that only as to the Waddell 22 interview. 23 THE HEARING OFFICER: Okay. Fine. The quotes 24 are verbatim, not the summary. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1447 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 351 1 BY MS. CASTILLO: 2 Q. Is that right? 3 A. When I quoted something, it was verbatim, it 4 was to the transcript. 5 Q. The quotes, right? 6 A. Correct. 7 Q. Okay. But the summaries are not the -- are not 8 verbatims, they're summaries, right? 9 A. Correct. 10 Q. And they're your summaries, right? 11 A. Correct. 12 Q. Okay. So do you want to look at the toggling 13 transcript of Lieutenant Smith's reinterview that you 14 did on the 12th right after you had the interview with 15 Officer Waddell? 16 A. Okay. 17 Q. Okay. And you talked about these e-mails, 18 okay, that didn't get -- 19 THE HEARING OFFICER: Are we talking about 20 Department 15 -- 21 MS. CASTILLO: Yes. 22 THE HEARING OFFICER: -- or some other 23 document? 24 MR. PALMER: Should be 15. 25 THE HEARING OFFICER: Okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1448 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 352 1 THE WITNESS: Well, again -- 2 MS. CASTILLO: Wait, wait. 3 THE HEARING OFFICER: Hold on. Let's let her 4 ask a question. 5 THE WITNESS: Sure. 6 BY MS. CASTILLO: 7 Q. So do you want to review that transcript to 8 refresh your memory and then review your summary before 9 I ask you a specific question? 10 A. Okay. 11 Q. Okay. Do you want to review your summary? 12 A. What part of it would you like me to read? 13 Q. I'm just asking you, do you want to review it? 14 THE HEARING OFFICER: Why don't you just ask 15 him a question, and if we don't get anywhere, he can 16 review it. 17 BY MS. CASTILLO: 18 Q. Okay. This -- well, in the interview with 19 Officer Waddell, he had said that he had had past 20 permission from Lieutenant Smith, correct? 21 A. That's what he said, yes. 22 Q. Okay. And when he had talked about this with 23 you, did you ask any type of foundational questions as 24 to what type of permission, was it in writing, was it 25 conversation? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1449 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 353 1 You know, what kind of conversation did you 2 have with him during that interview to elicit that 3 information from him? 4 A. I don't believe I did. 5 Q. Okay. So you didn't ask him if it was in 6 writing, via e-mail, or anything like that? 7 A. No. 8 Q. Okay. Then you -- well, first, where was 9 Officer Waddell's interview? 10 A. It was in the human resources building in City 11 Hall. 12 Q. So City Hall? 13 A. Yes. 14 Q. Where was Lieutenant Smith interviewed? 15 A. In his office. 16 Q. At the police department? 17 A. Yes. 18 Q. They're not in the same building? 19 A. No. 20 Q. Where is -- okay. Tell me how far away they 21 are. I don't live here. 22 A. The police department is a couple blocks away 23 over on Santa Rosa and Walnut and City Hall is down the 24 street over a couple blocks, a couple blocks this way. 25 Q. And did you have a prearranged -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1450 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 354 1 THE HEARING OFFICER: From the building we're 2 sitting in? 3 THE WITNESS: Yes, sir. 4 THE HEARING OFFICER: It should reflect. Okay. 5 Go ahead. 6 BY MS. CASTILLO: 7 Q. Did you have a prearranged meeting with all the 8 captains and the chief and everyone on the 12th after 9 you met with Lieutenant Smith to give him a briefing? 10 A. No. 11 Q. Okay. So you talked to Officer Waddell about 12 this permission that he understands, right? He conveys 13 this to you? 14 A. He told me he had prior permission. 15 Q. Okay. And you don't ask him how, but he gives 16 you whatever information he has, right, and then you go 17 and have another interview with Lieutenant Smith and 18 there's a conversation in this interview, reinterview, 19 with Lieutenant Smith about e-mails that are specific to 20 the CAT shift, right? 21 A. Uh-huh. 22 Q. And he says, I don't have them anymore, but 23 Sergeant Pfarr might, right? 24 A. Yes. 25 Q. And does he go into any kind of description Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1451 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 355 1 about what, exactly, these e-mails might contain? 2 A. Um, I recall him -- just what's in the 3 transcript. Uh, I don't recall, specifically, other 4 than him not wanting to be very flexible on the hours. 5 He wanted them to be specific to the 11: 00 to 4:00 in 6 the afternoon. 7 Q. Okay. In this reinterview with Lieutenant 8 Smith, you asked Lieutenant Smith if he has ever given 9 Officer Waddell permission to either come in late or 10 leave early from a CAT shift, right? 11 A. Yes. 12 Q. And he, in your summary, says he has given 13 Waddell permission in the past, but could not recall any 14 specific dates or times, right? 15 A. Yes. 16 Q. Did he say this was a verbal conversation? 17 A. I didn't ask. I don't recall. 18 Q. Did he say it could have been by e-mail? 19 A. I don't recall. 20 Q. Did you ask? 21 A. No. Probably not. 22 Q. There are other officers that are referenced in 23 this Waddell IA. Did you follow up with them in the 24 course of your investigation? 25 A. Follow up with them on what? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1452 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 356 1 Q. Like, has Lieutenant Smith given you past 2 permission to do this kind of thing? 3 A. As far as being flexible? 4 Q. Yeah. 5 A. Um, I don't know of other officers that have 6 worked the CAT overtime that I had interviewed that were 7 involved in this. 8 Q. I know not involved in this, but, obviously, 9 there's a bunch of officers who routinely sign up for 10 CAT, right? 11 A. Apparently, yeah. 12 Q. And there's -- it's posted so everyone who 13 walks down the hallway can see who these people are, 14 right? 15 A. I don't know if it was posted or not. I work 16 detectives. I don't associate too much with the CAT 17 overtime. 18 Q. Who knows about CAT overtime in order to do -- 19 A. Probably all the officers. And there's no CAT 20 overtime anymore. It's not as fluent as it was. 21 Q. Did you interview -- 22 A. Obviously, you don't understand the dynamics of 23 the department. 24 Q. No, I don't, but did you try to understand the 25 dynamics of the CAT program? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1453 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 357 1 A. I did, and I knew that officers were signing up 2 for it -- 3 Q. Okay. 4 A. -- and that it was an 11: 00 to 4:00 shift that 5 officers signed up for. I knew that Officer Waddell had 6 received e-mails because of the 11: 00 to 4:00 because he 7 mentioned it in one of the transcripts here and during 8 my interview. 9 Q. Let me stop you. 10 A. Okay. 11 Q. You just said that you didn't remember that in 12 his interview. 13 A. No. During the interview, he had mentioned 14 something about the 11: 00 to 4:00 e-mail. He never 15 mentioned to me that he had sent an e-mail requesting 16 time off to Lieutenant Smith, but he had mentioned 17 something about the 11: 00 to 4:00 shift and that 18 Lieutenant -- this is where he contradicts the time and 19 being flexible because he said that Lieutenant Smith's 20 always flexible and he lets people adjust their shifts 21 all the time. Lieutenant Smith said he didn't, it was 22 very specific, but he knew of the 11: 00 to 4:00 shift 23 that he wasn't very flexible -- that Smith wasn't very 24 flexible on, and I have it highlighted in one of the 25 transcripts here. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1454 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 358 1 Q. Did you ask Officer Waddell, do you have these 2 e-mails? 3 A. No, I didn't. 4 Q. Why? 5 A. He admitted that he -- that he knew of the 6 e-mail. I didn't think it was that relevant at the time 7 and that wasn't my concern. 8 Q. The past practice that he just described to you 9 was not relevant? 10 MR. PALMER: Well, objection -- 11 THE WITNESS: No. 12 MR. PALMER: -- misstates the evidence, 13 misstates testimony. 14 THE HEARING OFFICER: His testimony is what it 15 is. 16 BY MS. CASTILLO: 17 Q. This is Appellant's Exhibit B. Have you ever 18 seen this kind of posting of the CAT schedule before? 19 THE HEARING OFFICER: Do you have a copy to put 20 in front of him? Is that one of the documents here, or 21 is that his copy? 22 MS. CASTILLO: That's a copy on the table. 23 THE HEARING OFFICER: Got it. 24 THE WITNESS: I have not seen this document 25 before, no. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1455 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 359 1 BY MS. CASTILLO: 2 Q. Have you seen a -- 3 A. I've seen similar documents like this, but not 4 this one. 5 Q. I mean, like, a posting of who is going to work 6 what shift on CAT? 7 A. No. I haven't paid attention to the CAT 8 overtime shifts. That's not something that's under my 9 scope. 10 Q. I know, but you were doing an investigation on 11 the CAT overtime shifts. 12 A. I was doing an investigation on Officer 13 Waddell's dishonesty, not on the CAT overtime shifts. 14 Q. Okay. Would you agree with me that it's 15 important to keep your internal affairs investigation 16 separate from any other internal affairs investigation 17 that's going on with Lieutenant Waddell? 18 A. Not Lieutenant Waddell. 19 Q. I'm sorry. Officer Waddell. 20 A. Yes. 21 Q. So you were not involved in the Bentley 22 investigation, right? 23 A. Other than being interviewed briefly for it, I 24 was not. 25 Q. Okay. And you didn't have anything to do with Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1456 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 360 1 the recommendation at the end towards penalty, right? 2 A. No. 3 Q. And who was the investigator on that interview? 4 A. Lieutenant Proll was the one that interviewed 5 me. 6 Q. And why did you send him your investigation on 7 this? 8 A. Why did I send Lieutenant Proll -- 9 Q. Right. 10 A. -- my investigation on this? 11 Q. Yes. 12 A. I don't know why. 13 Q. Via e-mail? 14 A. I don't know. 15 Q. You don't know, either, why? 16 A. I don't know. 17 THE HEARING OFFICER: You're asking whether he 18 did or when he did? 19 MS. CASTILLO: No. Why he did. 20 THE HEARING OFFICER: Okay. 21 THE WITNESS: I don't know. Maybe it had some 22 relevance to something he was investigating. I don't 23 know. 24 BY MS. CASTILLO: 25 Q. Your completed investigation had relevance to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1457 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 361 1 something he was investigating on the Bentley IA? 2 A. It may have. I don't know. 3 MS. CASTILLO: Okay. I have nothing further. 4 THE HEARING OFFICER: Anything on redirect? 5 MR. PALMER: Yes. 6 7 REDIRECT EXAMINATION 8 BY MR. PALMER: 9 Q. The last set of questions was kind of strangely 10 worded. 11 Do you have a recollection of sending 12 Lieutenant Proll your investigation of the CAT event? 13 A. I don't. 14 Q. Do you have a recollection of him asking for 15 it? 16 A. No. 17 Q. Do you have a recollection of somebody asking 18 you to do it? 19 A. No. 20 Q. Are you still -- turn to Exhibit 15. Page 1 of 21 Exhibit 15, are you there? 22 A. Yes. 23 Q. Jumping off of some points that Ms. Castillo 24 attempted to make in recross. Do you see the large 25 paragraph in the middle? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1458 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 362 1 A. Yes. 2 Q. Right below that is a statement attributed to 3 you, starts off, "Did Officer Waddell." Do you see 4 that? 5 A. Yes. 6 Q. In that question, do you ask him, Lieutenant 7 Smith, if Mr. Waddell ever contacted him through several 8 means, phone, e-mail, text, or any other way of 9 communicating, asking to come in later, come in early? 10 Is that the substance of your question there? 11 A. Yes. 12 Q. And I don't want you to read his entire answer, 13 but what's the first word that he uses in utterance to 14 your question? 15 A. He says no. 16 Q. All right. So at that point, do you think 17 there's any e-mails out there attributed to Lieutenant 18 Smith involving Mr. Waddell that have anything to do 19 with coming in late or leaving early? 20 A. I didn't believe there was, no. 21 Q. Assuming Lieutenant Smith is telling you the 22 truth, right? 23 A. Yes. 24 Q. Did Mr. Waddell specifically tell you he 25 recalls there being, in existence, an e-mail in some Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1459 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 363 1 time in the not too distant past before October 19th, 2 2013, where he specifically got permission from 3 Lieutenant Smith to come in late on October 19th? Did 4 he tell you there's an e-mail existence about that? 5 A. No. 6 Q. Whether you asked him or not, did he tell you 7 that? 8 A. No. 9 Q. Did Mr. Waddell tell you, in any interview you 10 had with him, that there is, in existence, an e-mail 11 between him and Lieutenant Smith sometime prior to 12 October 19th that he can do what he wants, he can be 13 loosey-goosey with the time that he comes and leaves on 14 the CAT shift? Did he tell you there's an e-mail 15 existence about that? 16 A. No. 17 MR. PALMER: Nothing further. 18 THE HEARING OFFICER: Re-cross? 19 MS. CASTILLO: I'll save it for my direct. 20 THE HEARING OFFICER: Okay. So are we done 21 with Lieutenant Bledsoe for today? 22 MS. CASTILLO: With the admonishment, I'd say 23 yes, unless... 24 THE HEARING OFFICER: Is that okay, Greg? 25 MR. PALMER: Yes. That's fine. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1460 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 364 1 THE HEARING OFFICER: So, Lieutenant, you're 2 done for today. And I don't think you're coming back 3 for the department's case-in-chief, right? 4 MR. PALMER: No. 5 THE HEARING OFFICER: And so you may be 6 recalled -- 7 MS. CASTILLO: Wait. One more question. 8 THE HEARING OFFICER: I spoke too slowly. 9 BY MS. CASTILLO: 10 Q. Remember I just asked you about that, why you 11 sent that to Proll? 12 A. Yes. 13 MR. PALMER: Can I... 14 MS. CASTILLO: Yeah. Sorry. 15 THE HEARING OFFICER: Is this a new document? 16 MS. CASTILLO: Sure. 17 THE HEARING OFFICER: Are we offering it into 18 evidence? 19 MS. CASTILLO: Yeah. We don't have copies 20 right now, but I wasn't expecting to do that today. So 21 this is -- 22 THE HEARING OFFICER: Do you mind if I take a 23 look? 24 MS. CASTILLO: Yeah. I'll make copies. 25 THE HEARING OFFICER: I'd like to follow along. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1461 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 365 1 MS. CASTILLO: We're on D now? D. 2 THE HEARING OFFICER: There's some attachments. 3 All right. Well, why don't you describe it and then see 4 what we can do with it, Ms. Castillo. 5 BY MS. CASTILLO: 6 Q. I'm showing you what is going to be labeled as 7 Appellant's D. This appears to be an e-mail. You're 8 John Bledsoe, right? 9 A. Yes. 10 Q. This looks like it's to Bill Proll. That's the 11 other IA investigator in this issue, right? 12 A. Yes. 13 Q. This says AI copy, right? 14 A. I don't know. I haven't seen it yet. 15 Q. Okay. I'm describing it, but I don't know. 16 THE HEARING OFFICER: Date? Is there a date on 17 it? 18 THE WITNESS: Yes. It's Wednesday, February 19 5th, 2014. 20 THE HEARING OFFICER: Okay. 21 BY MS. CASTILLO: 22 Q. And that says Waddell AI, 13004-P for doc. Is 23 this your investigation that you were doing? 24 A. That's the IA number, yes. 25 Q. Okay. What are all these attachments here? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1462 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 366 1 A. That's the IA number. The attachment may be 2 the -- I don't know what the images are. It could be 3 the report. You know, in management, we share 4 information. 5 Q. Okay. So I asked you why you would do that and 6 you said you didn't know. 7 Do you know now, having refreshed your memory 8 by seeing it, that you did send it to him and it was 9 this, and around the same period, do you know why -- 10 MR. PALMER: Well, I would object lack of 11 foundation. It just shows the title of the -- I know 12 what it says. I just can't tell what it is, actually, 13 that is attached. With that proviso... 14 THE HEARING OFFICER: So with that proviso, 15 what? 16 MR. PALMER: He can answer the question, if 17 it's okay with you. 18 THE HEARING OFFICER: Go ahead. 19 THE WITNESS: I would have to assume that he 20 thought that there was something relevant for my case 21 into his that he wanted to look at. I don't know. 22 BY MS. CASTILLO: 23 Q. And so you just -- do you know -- I mean, 24 because this doesn't say, hey, send me that, this shows 25 you just sending it to him. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1463 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 367 1 Do you remember having a conversation where he 2 asked for it or were you -- I mean, do you remember? 3 A. I don't remember a specific conversation, but 4 in management meetings and management, we share this 5 information and this isn't -- this isn't information 6 that we bring to regular staff and such. We -- 7 Q. Let me ask you, though. 8 A. Sure. 9 Q. You're a witness in that case, though, right, 10 the Bentley case? You just said you were interviewed? 11 A. Yeah, I was interviewed. 12 Q. Okay. So -- okay. So -- okay. 13 And that was also about Officer Waddell's 14 integrity, right, that case, too? 15 A. I'm not sure what the details of that were. 16 Q. But you were interviewed, right? 17 A. I was interviewed. I wasn't a witness. I was 18 just interviewed. I don't know what I witnessed. 19 MS. CASTILLO: I mean, I can make -- I don't 20 think we probably don't want to leave with this 21 document. This will be Appellant D. There's a copier. 22 Can we make three copies? 23 THE HEARING OFFICER: Can we finish with this 24 witness or are we done with this witness? 25 MS. CASTILLO: I would like to move this in. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1464 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 368 1 THE HEARING OFFICER: I understand. I'm just 2 trying to figure out if we can let him go. 3 MS. CASTILLO: I'm done with him, yes. 4 THE HEARING OFFICER: So we need to keep him 5 around and ask him more questions? 6 MS. CASTILLO: No, if you're done with him. 7 THE HEARING OFFICER: Do you have anything else 8 of Lieutenant Bledsoe, Mr. Palmer, now that we've had 9 some more questions? 10 MR. PALMER: I don't think so at this time. 11 THE HEARING OFFICER: Okay. So we're going to 12 excuse you, Lieutenant, at this time. You're subject to 13 recall when the appellant puts on their case-in-chief. 14 So you're not to discuss your testimony with anyone. 15 THE WITNESS: Yes, sir. 16 THE HEARING OFFICER: And we may see you again 17 sometime. Thank you very much. 18 So let's take a break to get copies of that 19 made and talk about what's happening next. 20 (Recess.) 21 THE HEARING OFFICER: We're back on the record, 22 ready for our next witness. 23 Good afternoon, sir. My name is Chris Cameron. 24 I'm the hearing officer. It's my job to make sure that 25 we get your testimony. So let's begin by getting you to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1465 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 369 1 raise your right hand. Do you affirm that the testimony 2 that you are about to give will be the truth, the whole 3 truth and nothing but the truth? 4 THE WITNESS: Yes, I do. 5 THE HEARING OFFICER: You can put your hand 6 down. Could you please state your name for the record 7 and spell it for our court reporter? 8 THE WITNESS: My name's Greg Benson, G-R-E-G, 9 B- E-N-S-O-N. 10 THE HEARING OFFICER: Thank you. Go ahead. 11 MR. PALMER: Thank you. 12 13 DIRECT EXAMINATION 14 BY MR. PALMER: 15 Q. Could you tell us by whom you are employed, 16 please? 17 A. By the San Luis Obispo Police Department. 18 Q. In what capacity? 19 A. As a patrol officer. 20 Q. How long have you been so employed? 21 A. With the San Luis Obispo Police Department, 22 I've been here approximately two and a half years. 23 Q. Any prior service with another law enforcement 24 agency before San Luis Obispo? 25 A. Yes. The Pismo Beach Police Department. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1466 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 370 1 Q. For how long? 2 A. Approximately five years. 3 Q. On February 22nd, 2013, were you on duty and 4 employed as a San Luis Obispo police officer? 5 A. Yes, I was. 6 Q. And on that date, sometime during that date, 7 did you get assigned a radio call about a traffic 8 collision? 9 A. No, I did not. 10 Q. Sometime during that date, did you go to a 11 traffic collision? 12 A. Yes, I did. 13 Q. Somewhere in the town? 14 A. Yes. 15 Q. And where was that traffic collision? 16 A. It was at the corner of Orcutt and Johnson. 17 Q. Were you dispatched to the scene? 18 A. No. 19 Q. Did you just, kind of, slide by? 20 A. Yes. 21 Q. Is there a reason why? 22 A. Due to it being a Bentley and a severe traffic 23 collision caught my interest. 24 Q. So you drove by. 25 Were there other San Luis Obispo Police Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1467 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 371 1 Department officers present when you drove by? 2 A. Yes, there was. 3 Q. And did you stop and get out? 4 A. Yes. 5 Q. Who was there? Do you recall? 6 A. Officer Kevany, Officer Waddell and Sergeant 7 Pfarr, by my recollection. 8 Q. Now, were you -- what time did your duty 9 status -- what time did you go on duty that day? 10 A. 19: 00 hours. 11 Q. Okay. How long after the original traffic 12 collision call came out did you slide on by? 13 A. I'd estimate, approximately, 20 to 30 minutes. 14 Q. And how much time did you spend at the scene? 15 A. Approximately, 10 to 15 minutes. 16 Q. Okay. While you were on scene, did you -- 17 first off, do you know Mr. Waddell here? 18 A. Yes, I do. 19 Q. How do you know him? 20 A. He was a coworker. 21 Q. Okay. Did you work with him from time to time? 22 A. Yes. 23 Q. Same shift, overlapping shifts? 24 A. Yes. 25 Q. Would you say you know him well? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1468 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 372 1 A. No. 2 Q. Okay. While you were at the scene for the 15 3 minutes, or so, that you were there, did you see 4 Mr. Waddell doing something with regard to the Bentley? 5 A. Yes, I did. 6 Q. What did you see? 7 A. Um, I saw him try to get the rear emblem off 8 and then the steering wheel emblem off and the wheel 9 emblem off. 10 Q. Let's take those things separately. All right? 11 A. Yes, sir. 12 Q. Describe exactly for the hearing officer what 13 you saw Mr. Waddell doing to the Bentley emblem on the 14 rear portion of the car. 15 A. Um, while I was looking at the car, I saw 16 Officer Waddell speak to the tow truck driver. I wasn't 17 close enough to hear exactly what was being said, but it 18 sounded like something to the effect that he was asking 19 for something to get the emblem off. While I was 20 looking at the car, I saw him try to get the rear truck 21 emblem off, but it was bending because the center part 22 was mounted to the trunk. After that, he went to the 23 steering wheel. 24 Q. We'll get to the steering wheel. Let me break 25 it down into a couple of parts. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1469 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 373 1 Did you see him doing something to the rear 2 Bentley emblem before he had whatever interaction with 3 the tow truck driver? 4 A. Yes. 5 Q. Okay. And what was he doing -- before the 6 interaction with the tow truck driver, what was he doing 7 to the Bentley? 8 A. Trying to get the emblem off with just his 9 fingers. 10 Q. How long did you see him engaging in that 11 conduct? 12 A. A minute or less. 13 Q. And then he had some interaction with the tow 14 truck driver? 15 A. Yes. 16 Q. Could you get -- could you get -- strike that. 17 How far away from Mr. Waddell and the Bentley 18 and the tow truck driver were you when this interaction 19 occurred? 20 A. Anywhere between five to ten feet. 21 Q. Was there other activities going on around you? 22 A. Yeah. 23 Q. Did you catch any part of the verbal 24 interaction between Mr. Waddell and the tow truck 25 driver? Did you catch any part of it? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1470 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 374 1 A. Um, no. Not really. 2 Q. You just saw some sort of verbal interaction? 3 A. Yes. 4 Q. Did Mr. Waddell go toward the tow truck driver? 5 A. I believe so. 6 Q. Did he stay with the tow truck driver for some 7 time? 8 A. Not an extended period of time. 9 Q. At sometime, he leaves the presence of the tow 10 truck driver? 11 A. Yes, sir. 12 Q. Does he have something in his hand? 13 A. I believe so. 14 Q. What? 15 A. I believe it was a screwdriver. 16 Q. Why do you believe that? 17 A. That's what I recall. 18 Q. Did you actually see a screwdriver or see 19 something else that you thought was a screwdriver, or 20 what? 21 A. I believe it was a screwdriver. 22 Q. And where does he go? 23 A. To the rear trunk. 24 Q. What does he do? 25 A. Tries to pry off the rear emblem. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1471 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 375 1 Q. Was he moving it, at all? 2 A. The two wings that come out from the center of 3 the B bent out. 4 Q. Was he able to get the entire emblem off the 5 vehicle? 6 A. No. 7 Q. Was Mr. Waddell saying anything to anybody else 8 at the scene while he was engaging in this conduct, 9 besides the tow truck driver? You already talked about 10 that. 11 A. I do not recall. 12 Q. Making any verbal conversations? 13 A. I'm sure there was small talk, but nothing that 14 I can remember. 15 Q. All right. Again, how much time does he spend 16 with the screwdriver at the rear emblem? 17 A. A minute or less. 18 Q. What does he do? 19 A. Moves to the steering wheel. 20 Q. And then what? 21 A. Tries to get the center emblem off. 22 Q. Does he use any tool? 23 A. I believe he used a knife, but I don't 24 remember, exactly. 25 Q. Do you know where he got the knife? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1472 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 376 1 A. No. 2 Q. Is it typical that patrol officers carry 3 knives? 4 A. Yes. 5 Q. What did he do with the knife and the steering 6 wheel? 7 A. I believe he tried to cut the leather portion 8 off the center of the steering wheel. 9 Q. Is there some sort of Bentley emblem or 10 insignia on the steering wheel? 11 A. Yes. 12 Q. Did you continue to watch him as he did that? 13 A. Not specifically, no. 14 Q. So your attention was distracted from time to 15 time? 16 A. Yeah. 17 Q. Did you notice he got the Bentley emblem off 18 the steering wheel? 19 A. I don't think he did. 20 Q. Okay. And did he move to another part of the 21 car? 22 A. Yes. 23 Q. What part? 24 A. The center cap to the wheel. 25 Q. Was there a Bentley insignia of some sort on Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1473 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 377 1 the center cap to the wheel? 2 A. Yes. 3 Q. What did it look like? 4 A. I believe it was a B with the wings, maybe, 5 coming out from it. 6 Q. Was the Bentley still upside down or on its 7 wheel, or do you know? 8 A. I don't recall. 9 Q. Do you know which wheel Mr. Waddell went to? 10 A. Um, would have been towards the front of the 11 car. 12 Q. So one of the front wheels? 13 A. Yes. 14 Q. What did he do at the wheel? 15 A. Tried to get the center cap out. 16 Q. What did he do? 17 A. I believe he got the center cap out. 18 Q. Physically, describe his movements. 19 A. He was using the tool that he was using on the 20 trunk to pop out the center cap. 21 Q. And doing what? 22 A. Prior method. 23 Q. Was he successful? 24 A. Yes. 25 Q. And when he got the center cap off the wheel, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1474 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 378 1 did you see him do something with it? 2 A. He held it in his hands. 3 Q. Did he move it anywhere? 4 A. Not that I recall. He was still in the 5 vicinity of the vehicle. 6 Q. During this time period moving from the back to 7 the steering wheel to the wheel, did Mr. Waddell make 8 any vocalizations? 9 A. Nothing that I noted. 10 Q. Do you know Sergeant Pfarr? 11 A. Yes. 12 Q. And he was at the scene, too? 13 A. Yes. 14 Q. While this event was going on, what was 15 Sergeant Pfarr doing? 16 A. He was in the area, just like I was. 17 Q. Was he watching part of that event, as well? 18 A. Yes. 19 Q. Did you see any reaction in Sergeant Pfarr? 20 A. Yes, I did. 21 Q. What was the reaction? 22 A. Uh, he looked at me and he started turning red. 23 Q. Okay. Let's breathe life into that. Do you 24 know Sergeant Pfarr? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1475 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 379 1 Q. Do you know him well? 2 A. Yes. 3 Q. Do you know him better than you do 4 Mr. Waddell -- 5 A. Yes. 6 Q. -- at this time? 7 A. Yes. 8 Q. Okay. Are you familiar -- do you have general 9 familiarity with how Sergeant Pfarr physically reacts to 10 stimulus? 11 A. Yes. 12 MS. CASTILLO: Can I say vague as to time? 13 When you say, "at this time," are you talking about now 14 or -- 15 MR. PALMER: I'll fix it. 16 THE HEARING OFFICER: You want to clarify the 17 time? 18 MR. PALMER: Sure. 19 BY MR. PALMER: 20 Q. How many months or years had you worked with or 21 alongside Sergeant Pfarr up to February of 2013? 22 A. Um, I got hired in December. So December to 23 February, but he was one of my training officers. So I 24 was able to get to know him better than most officers. 25 Q. I think we've, hopefully, pretty well Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1476 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 380 1 established that Sergeant Pfarr became a sergeant in 2 early 2013. Does that comport with your recollection? 3 A. Yes. 4 Q. Did you work with him as an officer? 5 A. Yes. We were in the same car. 6 Q. So you were partners? 7 A. Yes. 8 Q. Did you have a lot more interaction with 9 Sergeant Pfarr and Officer Pfarr than you did with 10 Mr. Waddell? 11 A. At that time, yes. 12 Q. Do you feel comfortable saying that you have a 13 pretty good working knowledge of how Sergeant Pfarr 14 reacts to stimulus? 15 A. Yes. 16 Q. In turning red, what does that mean to you in 17 terms of your knowledge of Sergeant Pfarr? 18 A. He was holding in his emotions because he was 19 getting upset. 20 Q. What did he do, if anything? 21 A. What was that? 22 Q. What did he do, if anything? 23 A. He looked at me and, to me, the look on his 24 face was like, is this really happening right now. 25 Q. Okay. And did he make any vocalization to you Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1477 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 381 1 or anybody else? 2 A. At that point, I think he confronted Officer 3 Waddell. 4 Q. What did he say or do? 5 A. He told him to put the part back into the car. 6 Q. Okay. And how did Mr. Waddell react to that? 7 A. He listened to him and put it back in the car. 8 Q. Okay. Did Sergeant Pfarr leave? 9 A. We both ended up leaving. 10 Q. Okay. When did you all leave in conjunction 11 with all this other conduct? 12 A. After Officer Waddell put the part back in the 13 car, we probably left within a couple minutes, few 14 minutes. 15 Q. Did Sergeant Pfarr leave before you? 16 A. Simultaneously. 17 Q. Did you and Sergeant Pfarr speak to one another 18 about this event before you both left? 19 A. Yes. 20 Q. What did you two say to each other? 21 A. He said let's get out of here -- something to 22 the effect of let's get out of here before we get 23 involved in his IA. 24 Q. And IA means... 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1478 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 382 1 Q. Internal affairs investigation? 2 A. Yes, sir. 3 Q. Did you clear the scene? 4 A. Yeah. 5 Q. Okay. Based upon everything you saw, from your 6 point of view and your knowledge of all the events and 7 Mr. Waddell and Sergeant Pfarr, what was your impression 8 of why Mr. Waddell was trying to and, indeed, did 9 accomplish the removal of at least the wheel cap Bentley 10 emblem from the Bentley? 11 A. It's not every day you see a Bentley crashed 12 and -- 13 MS. CASTILLO: Objection. Non-responsive. 14 THE HEARING OFFICER: Okay. I'm going to let 15 him get there. Go ahead. 16 THE WITNESS: As a souvenir. 17 BY MR. PALMER: 18 Q. What do you mean? 19 A. A Bentley emblem is something that you don't 20 see every day. So something that struck his interest. 21 Q. Was your conclusion in that regard based 22 upon -- strike that. 23 Was it your impression that he was taking the 24 Bentley emblem for his own personal gain? 25 A. Like, to sell? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1479 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 383 1 Q. Or to keep as a souvenir. 2 A. Yes. 3 THE HEARING OFFICER: How would he -- I don't 4 know how he would know that. 5 MR. PALMER: Strike that. 6 MS. CASTILLO: I'm fine with his question. 7 THE HEARING OFFICER: All right. If you want 8 to answer it, fine. 9 THE WITNESS: Like, just to keep in his 10 possession? 11 MR. PALMER: Yes. 12 THE WITNESS: Yes. 13 BY MR. PALMER: 14 Q. And you base that upon everything you saw that 15 night? 16 A. Yes. 17 Q. Was there any discussion of this being a joke? 18 A. Not that I heard. 19 Q. Did it appear, to you, that Sergeant Pfarr 20 reacted as though it was a joke? 21 A. No. 22 Q. When you left the scene, did you think that 23 there would be further inquiry about this event? 24 A. No. 25 Q. When you left the scene, what did you think? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1480 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 384 1 A. I thought he would just be talked to. I didn't 2 know what the process would have been. 3 MR. PALMER: Okay. Nothing further. 4 THE HEARING OFFICER: Cross-examination? 5 MS. CASTILLO: Yes. 6 7 CROSS-EXAMINATION 8 BY MS. CASTILLO: 9 Q. Okay. How long had you been a police officer 10 at this time? 11 A. Approximately seven years. 12 Q. And you were on probation at San Luis Obispo 13 P.D. at this time, right? 14 A. Yeah. 15 Q. And you think you were watching, perhaps, an 16 officer take a souvenir from a crime scene, right? 17 A. Uh, at the time, I don't know if it was a crime 18 scene. 19 Q. Okay. Well, there was, maybe, a DUI or, maybe, 20 potentially, manslaughter or, maybe, at least, a traffic 21 collision, right? 22 A. To my knowledge, at that time, it was just a 23 traffic collision. 24 Q. So you were, potentially, watching an officer 25 take a souvenir from a traffic collision, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1481 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 385 1 A. He had never successfully taken it. So it 2 never got to that point. 3 Q. Oh, okay. Um, so it was almost an attempted 4 something, right? 5 A. Yeah. I know it was addressed by a sergeant. 6 Q. And how was it addressed? 7 A. Telling him to put it back. 8 Q. Okay. And that was -- no further inquiry was 9 all that was needed, in your opinion, after seven years 10 of being a police officer? 11 A. Regarding what? 12 Q. You didn't think there was going to be any 13 further inquiry, right? 14 A. Not at my level. At a supervisor level. 15 Q. Okay. Did you document what you had seen that 16 night, for any reason? 17 A. Uh, I wasn't an investigating officer. 18 Q. No. I know, but did you document what you 19 witnessed, as a witness? 20 A. At that time, I didn't know what I was a 21 witness to and a sergeant was aware of what I was 22 seeing. 23 THE HEARING OFFICER: Well, she's asking a fair 24 question. Did you write this up, did you report it to 25 anybody, did you write an e-mail, did you make a note to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1482 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 386 1 yourself, any of that stuff? 2 THE WITNESS: I remember the incident and a 3 sergeant was aware that I was present at the time. 4 THE HEARING OFFICER: But you didn't make any 5 documentation? 6 THE WITNESS: No. 7 THE HEARING OFFICER: Okay. 8 BY MS. CASTILLO: 9 Q. And your impression of Sergeant Pfarr's 10 reaction was this was not a joke, right? 11 A. Correct. 12 Q. And you never had a conversation with Officer 13 Waddell about this, right? 14 A. After or during? 15 Q. Any time. 16 A. Um, not that I -- definitely, not after, and 17 then during -- like I said previously, there was small 18 talk, but I don't recall what was being said. 19 Q. Nothing about jokes, though, right? 20 A. No. 21 Q. And nothing about Bentley emblems, right? 22 A. Like, generically or... 23 Q. Well, does anything jump out at you in your 24 memory about Bentley emblems from Officer Waddell that 25 night? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1483 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 387 1 A. No. 2 Q. How many times had you worked with Officer 3 Waddell prior to that night in February? 4 A. We were on a night shift together, but he was 5 assigned to downtown bikes. So when I would go 6 downtown, we would interact, but that's why I didn't 7 know him as well as, like, a patrol officer where I 8 would respond to calls. 9 Q. Right. Unlike your partner, Sergeant -- now, 10 Sergeant Pfarr, right? 11 A. Yes. 12 Q. Okay. And Sergeant Pfarr said let's get out of 13 here before we get involved in his IA, and you agreed 14 with that, right? 15 A. Correct. 16 Q. And you simultaneously left, right? 17 A. Correct. 18 Q. Okay. And when you say he confronted him, 19 describe that more. 20 A. Like I said, I don't really remember what was 21 being said, but he was upset because of how his 22 mannerisms are and he told him to put it back. 23 Q. And you said he turned red, right? 24 A. Yeah. 25 Q. What time of day or night was this? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1484 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 388 1 A. Nighttime. 2 Q. What was the lighting like? 3 A. Streetlights and vehicle lights. 4 Q. Where was this in proximity to the streetlights 5 and vehicle lights? 6 A. I don't recall. 7 Q. Okay. Now, you said that there was a look that 8 you got from Sergeant -- now Sergeant Pfarr, or it was 9 then Sergeant Pfarr, too, right, that it was -- that 10 communicated to you kind of like, is he really doing 11 this, is this happening, right? 12 A. Uh-huh. 13 Q. Had you had that kind of look of communication 14 before? 15 A. Partners usually give each other nonverbal 16 cues. 17 Q. Okay. So you just know this from your 18 nonverbal cues with Sergeant Pfarr? 19 A. With most officers. 20 Q. Okay. Any other nonverbal cues with Sergeant 21 Pfarr that night? 22 A. No. 23 Q. Okay. And so were you on the same traffic 24 specialized training team that Officer Waddell was? 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1485 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 389 1 Q. Do you have any mechanical training that he 2 does? 3 A. No. 4 Q. You don't know about popping stuff off of cars 5 and stuff like that? 6 A. Do I know how to or why he would? 7 Q. I'm saying, mechanical training that he does. 8 A. No. 9 Q. Okay. You were sitting right next to Sergeant 10 Pfarr this whole time? 11 A. No. 12 Q. Where was Sergeant Pfarr? 13 A. It was a fluid scene. So people are walking 14 around and looking at different angles of the car. 15 Q. Okay. So when he gave you the look, where was 16 he? 17 A. I don't recall. 18 Q. Okay. Was it across-the-whole-scene look or 19 was it a standing-right-next-to-you look? 20 A. Within five feet. It was near the car. 21 Q. And at the point he gave you the look, what 22 were you both witnessing? 23 A. Uh, it was in the time frame of him trying to 24 remove emblems from the car. 25 Q. Which emblem? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1486 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 390 1 A. I don't recall. 2 Q. Well, I mean, since it was fluid, are we 3 talking about -- I mean, over the time period that this, 4 you know, emblem removal took place, how long are we 5 talking? 6 A. The whole time? 7 Q. Yeah. 8 A. Five minutes. 9 Q. Okay. From beginning of screwdriver possession 10 to putting the car parts back, how long? 11 A. About five minutes. 12 Q. Okay. Total, right? 13 A. About that. 14 Q. Okay. And during this period, how many feet 15 between you and Sergeant Pfarr? 16 A. Anywhere between two to ten feet. 17 Q. Was he moving around? 18 A. We both were. 19 Q. What are you doing? Walking around the car? 20 A. Back and forth. 21 Q. Talking to people? 22 A. Yes. 23 Q. Okay. And so Officer Waddell is right next to 24 where you are, right? So you can see all this going on? 25 A. Not always. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1487 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 391 1 Q. Well, but he's in plain sight, right? 2 A. Yeah. 3 Q. And a supervisor is in plain sight, right? 4 A. Yeah. 5 Q. And there's a bunch of fire personnel there, 6 too, right? 7 A. I don't remember if they were still on scene 8 when I was. 9 Q. But there was other police officers there, too, 10 right? 11 A. Yeah. 12 Q. There's no furtive movements going on here, 13 right? 14 A. To what? 15 Q. Well, with Officer Waddell. 16 A. To what? 17 Q. Well, trying to take these Bentley souvenirs, 18 right? 19 A. Like, was he trying to? 20 Q. Well, I mean -- 21 A. Yes. 22 Q. -- the furtive movements. I mean, there wasn't 23 any kind of -- I mean, you could see what he was doing, 24 right? 25 A. Like, was he trying to hide what he was doing? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1488 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 392 1 Q. Right. 2 A. No. 3 Q. You've never heard of Officer Waddell saying 4 anything about having a collection of car parts, right? 5 A. No. 6 Q. Okay. So you said that there was this 7 confrontation, right, where Officer Waddell was 8 confronted by Sergeant Pfarr, right? 9 A. Yes. 10 Q. And what was said? 11 A. As I said, I don't recall specifically, but it 12 was something to the effect of you need to put that 13 back. 14 Q. Did you read your transcript? 15 A. Yes. 16 Q. When did you do that? 17 A. Uh, just prior to coming here. 18 Q. Like, how long ago? 19 A. 30 minutes. 20 Q. And before that? 21 A. Last week. 22 Q. Last week? 23 A. Yeah. 24 Q. You got a transcript last week. 25 Did you read in your transcript where you said Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1489 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 393 1 that you could not hear the confrontation? 2 A. Uh, I don't recall, unless I have it in front 3 of me. 4 Q. No, I know. Well, wait. As you sit here 5 today, now you can remember what this gist of the 6 confrontation was? 7 A. I said I could tell what was being said, but 8 that's not saying specifically what is being said. 9 Q. Okay. Except when you were interviewed, you 10 said, "It wasn't like I could tell what was being said." 11 So I will refer you to -- oh, wait. Your transcript's 12 not in there. 13 MR. PALMER: Yeah, it is. 14 MS. CASTILLO: Oh, is it? 15 THE HEARING OFFICER: Towards the end? 16 MR. PALMER: 19. 17 MS. CASTILLO: Oh, 19. You're transcript has 18 different pages than mine. 19 MR. PALMER: That's true. 20 MS. CASTILLO: So you can look at yours in here 21 and I will find mine. Yours is 19. I don't know what 22 page yours will be on. I'll just go off of mine at this 23 point. 24 THE WITNESS: Where do you want me to look? 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1490 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 394 1 BY MS. CASTILLO: 2 Q. Well, let's just start from your whole 3 transcript. Okay. We can start on Page 6 for you right 4 here. Do you see where I'm looking at? 5 A. Yep. 6 Q. Okay. Sergeant Pfarr confronted him about that 7 and you were asked further, right? 8 A. Yes. 9 Q. And you say, "Yeah. It wasn't like I could 10 tell what was being said." 11 A. "I wasn't like," and then I stopped, comma. "I 12 could tell what was being said, kind of." So that would 13 mean I can kind of hear what's going on. 14 Q. Let me read what you said. "It wasn't like I 15 could tell what was being said, kind of." 16 MR. PALMER: Objection. Misreads. You've got 17 a comma in there. 18 THE HEARING OFFICER: It says what it says. I 19 see two commas. 20 MS. CASTILLO: Well, I have my certified one, 21 too. So I'm going to enter mine, as well. 22 THE HEARING OFFICER: Okay. 23 MR. PALMER: Get the recording, too? 24 MS. CASTILLO: Yep. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1491 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 395 1 BY MS. CASTILLO: 2 Q. "But you weren't," and then the answer is, "I 3 wasn't close to here," and your answer is, "Yeah," 4 right? 5 A. Kind of and yeah and two separate sentences say 6 I'm vaguely hearing something. 7 Q. Okay. Then it says, "Okay, but you weren't 8 close enough to hear it?" "I wasn't, yeah." This is on 9 Page 6 -- 10 A. I see it. 11 Q. -- right? 12 A. And then if you move down -- 13 Q. Wait. "Okay. Then my question is -- my 14 question is, and what do you think you heard or what do 15 you think they were talking about?" 16 So this is my question now. Are you guessing 17 what they were talking about? Because that is the 18 question here. 19 So at the point where you're answering this by 20 the investigator in this IA, are you guessing what 21 they're talking about or are you answering as to what 22 you can actually hear? 23 A. Are you asking me if I heard, verbatim, what 24 was said? 25 Q. I'm asking that -- this question that is being Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1492 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 396 1 asked by the interviewer says, "What do you think you 2 heard? What do you think they were talking about?" 3 The answer that you gave right above it was, "I 4 couldn't hear what they were saying, or I wasn't close 5 enough," and you greed with that. 6 So when you answer the next question, is it 7 because you are guessing at what they are saying or is 8 it because, as you sit here today, you now know, 9 suddenly, what they were saying? 10 A. I never admitted to saying that I knew exactly 11 what was said. 12 Q. Okay. Now, you see all this activity by 13 Officer Waddell, and you do not know if the car is 14 upside down or not, right? 15 A. No. 16 Q. Okay. And you go to this collision scene 17 because a Bentley is involved and that catches your 18 interest, right? 19 A. Yeah. 20 Q. And you're at the scene for 10 to 15 minutes, 21 tops, right? 22 A. I believe so. 23 Q. Okay. You see Officer Waddell trying to peel a 24 Bentley emblem off with his fingers? Is that your 25 testimony? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1493 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 397 1 A. Yeah. 2 Q. Okay. And you believe that that might 3 legitimately happen? 4 MR. PALMER: Objection. It's -- 5 MS. CASTILLO: I'm asking you an opinion now. 6 MR. PALMER: I don't know how he can answer 7 that. It's unanswerable. 8 BY MS. CASTILLO: 9 Q. Can you say that that could possibly happen? 10 A. No. 11 Q. Okay. 12 THE HEARING OFFICER: I'll allow that. Go 13 ahead. 14 BY MS. CASTILLO: 15 Q. Somewhere, somehow -- at first, he has this 16 screwdriver, right? 17 A. At first, before what? 18 Q. Well, at some point, Officer Waddell has a 19 screwdriver, right? 20 A. Yes. 21 Q. And then he has a knife, right? 22 A. Yes. 23 Q. Did you ever tell Sergeant Pfarr that you see 24 him with a knife? 25 A. I don't need to verbalize something we're both Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1494 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 398 1 seeing. 2 Q. Oh. So your testimony, as you sit here today, 3 is that Sergeant Pfarr must have also seen the knife? 4 A. We both see different things. 5 Q. Well, your testimony is, "I don't need to 6 verbalize something we're both seeing." 7 So were you standing at the same spot where 8 Sergeant Pfarr would have also been able to witness a 9 knife? 10 A. I don't recall. 11 Q. And so, by that, along those lines, would he 12 have also been able to see whatever you were seeing 13 where the knife would have been used, which would have 14 been, I guess, this steering wheel area now? 15 MR. PALMER: Objection. Speculation as to 16 where Sergeant Pfarr was looking. 17 THE HEARING OFFICER: Do you know where he was 18 looking? 19 THE WITNESS: No. 20 MS. CASTILLO: Right here, Proll says from the 21 steering wheel. 22 THE HEARING OFFICER: You want him to look at 23 something now? 24 MS. CASTILLO: Sure. 6. 25 THE HEARING OFFICER: Page 6 of Department Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1495