Loading...
HomeMy WebLinkAboutAdministrative Record Part 4WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 399 1 Exhibit 19? 2 MS. CASTILLO: Yes. 3 THE HEARING OFFICER: Okay. 4 BY MS. CASTILLO: 5 Q. Steering wheel, right? 6 A. What's your question? 7 Q. Well, that's where the knife was being used, is 8 what you said, the center console area? 9 A. The steering wheel is not located in the center 10 console. 11 Q. Well, you said something about a center 12 console. What was it about the center console? 13 A. The center of the steering wheel. 14 Q. Oh, the center of the steering wheel. Okay. 15 And that's where the knife was with the 16 leather, right? 17 A. Yeah. 18 Q. Okay. And that's where you didn't need to 19 verbalize something that you would have both been 20 seeing, right, because he was standing right next to 21 you? 22 MR. PALMER: Objection. Speculation. 23 BY MS. CASTILLO: 24 Q. Is that what you just said? I'm sorry. 25 THE HEARING OFFICER: Well, we can have it read Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1496 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 400 1 back if you want to know what he just said. Do you want 2 to read it back? 3 (Record read by the court reporter.) 4 BY MS. CASTILLO: 5 Q. Did you make any nonverbal cues to Sergeant 6 Pfarr now at this point where you're seeing the knife 7 and the leather thing? 8 A. Not that I recall. 9 Q. Okay. But that's what partners and police 10 officers do, right? 11 A. It's a very vague question. 12 Q. Okay. Sorry. You had no role at the scene, 13 right? 14 A. No. 15 Q. Were you just, like, a looky-loo? 16 A. If that's how you want to label it. 17 Q. And that's why you're not on the radio log as 18 being there? 19 A. Correct. 20 Q. You just didn't put yourself on scene, you were 21 there for the 10 to 15 minutes? 22 A. When there's a serious incident like that and 23 sources are being utilized, I kept myself available for 24 radio traffic. 25 Q. Okay. Now, your testimony is that you're Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1497 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 401 1 seeing actual damage to the emblems, right? 2 A. Uh-huh. 3 Q. Okay. 4 THE HEARING OFFICER: I'm sorry. You've got to 5 say yes or no. 6 THE WITNESS: Yes. 7 BY MS. CASTILLO: 8 Q. So elaborate on this. Tell us about the 9 damage. 10 A. Which part? 11 Q. Well, you said you were seeing -- you saw bent 12 Bs, or something? 13 A. I saw a damaged rear emblem. The wings were 14 bent outwards. The steering wheel was not damaged, to 15 my recollection, because it was already damaged in the 16 traffic collision. So that part gets torn when the air 17 bags deploy, and the center cap would not have been 18 damaged because it's meant to be removed. 19 Q. Oh, it's meant to be removed? And you know 20 this why? How? 21 A. Because I'm familiar with cars. 22 Q. Bentleys? 23 A. Car wheels are usually similar. 24 Q. Okay. So this thing that -- the thing that was 25 removed -- wait. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1498 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 402 1 THE HEARING OFFICER: We're talking about the 2 wheel, not the steering wheel right now; is that 3 right? 4 MS. CASTILLO: Right. 5 BY MS. CASTILLO: 6 Q. So that was meant to be removed? Is that what 7 you're saying? 8 A. If you need to do something to the wheel, yes. 9 Q. Okay. And so then this Bentley, that part that 10 was B that has wings, that was damaged? 11 MR. PALMER: Objection. Misstates the 12 evidence. Oh, sorry. Withdraw it, when you put the 13 wings at the end. 14 BY MS. CASTILLO: 15 Q. Is that what you're saying? 16 THE HEARING OFFICER: Is that what you're 17 saying? 18 THE WITNESS: Are we talking about the trunk 19 now? 20 THE HEARING OFFICER: That's the issue. We 21 don't know. Just so we don't spend all day on this, he 22 testified the wings were getting bent on the emblem 23 being removed from the trunk; is that right? 24 THE WITNESS: That's correct. 25 THE HEARING OFFICER: There would be no wings Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1499 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 403 1 that would be separate on the wheel cover because it 2 would be one little piece; is that right? 3 THE WITNESS: Yes. 4 THE HEARING OFFICER: Okay. 5 BY MS. CASTILLO: 6 Q. Did you see the wings before? 7 A. Yes. 8 Q. Okay. Did you document the actual damage that 9 you just witnessed? 10 A. No. 11 Q. Did you talk about it with Sergeant Pfarr? 12 A. Yes. 13 Q. You talked about the damage on the wings? 14 A. Not specifically, no. 15 Q. Okay. Wait. Not specifically talked about 16 damage, or what did you specifically talk about? 17 A. It's a loaded question. You're just trying 18 to -- 19 THE HEARING OFFICER: Well, she's allowed to 20 put words in your mouth. It's cross-examination. So if 21 you don't understand the question, she can rephrase it. 22 If you understand it, you need to answer. 23 THE WITNESS: Can you rephrase your question? 24 BY MS. CASTILLO: 25 Q. What, specifically, did you talk about in terms Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1500 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 404 1 of damage? 2 A. To what part? 3 Q. The B. 4 A. Which B? 5 Q. The B wings. 6 A. There are B wings on the wheel, there are B 7 wings on the steering wheel and there are B wings on the 8 trunk. 9 THE HEARING OFFICER: I think we're talking 10 about the trunk; is that right? 11 MS. CASTILLO: Well, I'm talking about the only 12 damage that you saw Officer Waddell allegedly do. 13 THE WITNESS: Specifically, where? 14 MS. CASTILLO: Good question. 15 THE WITNESS: On the trunk? 16 BY MS. CASTILLO: 17 Q. You're the one who is bringing this up. Where 18 did you see him cause damage? 19 A. On the trunk. 20 Q. Okay. Did you talk about that specific damage 21 with your supervisor who was standing right there? 22 A. No. 23 Q. Okay. Did you talk about that specific damage 24 with anyone? 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1501 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 405 1 Q. Did you tell the insurance adjustor, hey, you 2 know, that damage was not from the collision, that was, 3 actually, from our officer, I saw it? 4 A. No. 5 Q. Really? You didn't? 6 A. No. 7 Q. Okay. Oh. 8 THE HEARING OFFICER: Where are we going? 9 MS. CASTILLO: 11. 10 THE HEARING OFFICER: Department 11. 11 BY MS. CASTILLO: 12 Q. Have you seen these photographs before? 13 A. Yes. 14 Q. When did you see these? 15 A. Last week. 16 Q. Last week? 17 A. Yeah. 18 Q. When? 19 A. I don't remember. From the lawyer. 20 Q. This lawyer? 21 A. Yes. 22 Q. Mr. Palmer? Okay. 23 Can you flip through all these photographs and 24 tell me if you've seen all of these photographs before? 25 A. I believe I saw all of those. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1502 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 406 1 Q. Okay. Can you tell us which photographs? 2 Because they have little letters at the bottom 3 somewhere, or they did. 4 A. They're up on the right corner? 5 THE HEARING OFFICER: Those are the page 6 numbers. 7 MR. PALMER: There are some. 8 MS. CASTILLO: Your witness book -- we labeled 9 ours. We didn't label that witness book. 10 MR. PALMER: The witness did at some point. 11 THE WITNESS: This one has a C. 12 MS. CASTILLO: Oh, they're at the top there. 13 THE HEARING OFFICER: Yeah. 14 BY MS. CASTILLO: 15 Q. Can you show us which photo shows these damaged 16 wings? 17 A. None of those. 18 Q. So are these the before pictures? 19 A. I didn't take the photos. So I can't tell you. 20 Q. Well, but this is the trunk, right? 21 MR. PALMER: Which one are you pointing at? 22 MS. CASTILLO: This would be C, 11-C. 23 THE HEARING OFFICER: Okay. 24 THE WITNESS: Okay. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1503 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 407 1 BY MS. CASTILLO: 2 Q. And this is the Bentley emblem on the trunk, 3 right? 4 A. That would be the Bentley emblem. 5 Q. The one you were just testifying, right? 6 A. Yeah. 7 Q. And so this would be the one that would have 8 had the damage that you just talked about, right? 9 A. Yes. 10 Q. Okay. So this must be the before picture then, 11 right -- 12 A. Yes. 13 Q. -- the before damage? Before Waddell, right? 14 A. Or it could be after. It's against a black 15 background. So you wouldn't be able to see depth in 16 that photo that night. 17 Q. Are you guessing or are you just -- 18 A. I'm giving you a probable reason. 19 THE HEARING OFFICER: All right. We don't want 20 any probabilities or guessing. Do you know whether this 21 is a before or after photo? 22 THE WITNESS: No. 23 THE HEARING OFFICER: Okay. 24 BY MS. CASTILLO: 25 Q. But you would agree with me there's no damage Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1504 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 408 1 on this photo, right? 2 THE HEARING OFFICER: That wasn't his 3 testimony. 4 MS. CASTILLO: Well, I'm asking now. 5 THE HEARING OFFICER: All right. 6 THE WITNESS: So you're asking for my opinion 7 now? 8 MS. CASTILLO: Yes. 9 THE WITNESS: I wouldn't say that that photo 10 shows that there is no damage. 11 BY MS. CASTILLO: 12 Q. So you can't give an opinion either way? 13 A. Correct. 14 Q. Okay. Where were you standing when you were 15 observing all of this, now that you have photographs to, 16 kind of, have a point of reference? 17 A. Different spots at different times. 18 Q. Were you following Officer Waddell around? 19 A. No. 20 Q. Did Sergeant Pfarr follow Officer Waddell 21 around? 22 A. No. 23 Q. Did Sergeant Pfarr ask you to follow Officer 24 Waddell around? 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1505 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 409 1 Q. So were you standing behind Officer Waddell 2 when he was in the trunk area? 3 THE HEARING OFFICER: Are we pointing to a 4 particular page of Exhibit 11? 5 MS. CASTILLO: I was, but we don't need to. 6 BY MS. CASTILLO: 7 Q. I mean, were you standing behind him? 8 A. I don't recall where I was standing. 9 Q. Okay. Were you standing behind him when he was 10 in the steering wheel area? 11 A. To the side, behind. I don't know where. 12 Q. Okay. And the wheel, which you don't remember 13 which side you were on, right? 14 A. It was at the front, but no, not what side 15 because I can't remember if it was upside down. 16 Q. So, somehow, you were at the front of the car, 17 the back of the car and the side of the car? 18 A. Uh-huh. 19 Q. Wherever Officer Waddell was, too? 20 A. At times. 21 Q. Okay. Back to your transcript. It's my Page 22 6. So I have no idea what it would be in there for you. 23 A. What's it addressing? 24 Q. The steering wheel. You're asked, "What do you 25 think he moved to, or do you remember?" I think it's, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1506 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 410 1 probably, the next page right here. Right here. Okay? 2 MR. PALMER: What page are we on? 3 THE WITNESS: I'm on Number 4. 4 MR. PALMER: 4? 5 THE WITNESS: Yeah. At the bottom. 6 THE HEARING OFFICER: Page 4 of Department 19. 7 BY MS. CASTILLO: 8 Q. Okay. And you're asked that question and you 9 answer, "I think it was -- was it the steering wheel 10 emblem? Does he go to cut that off," right, "or cut 11 that out," right? 12 A. Yeah. 13 Q. You're asking that question back to the 14 investigator? 15 A. I was trying to jog my memory, yes. 16 Q. Why are you asking the investigator to jog your 17 memory? 18 MR. PALMER: Objection. He just answered it. 19 BY MS. CASTILLO: 20 Q. I'm asking you why would you ask a question of 21 someone else? 22 THE HEARING OFFICER: I'll allow it. You can 23 answer, if you know. 24 THE WITNESS: I don't recall. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1507 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 411 1 BY MS. CASTILLO: 2 Q. Did the investigator jog your memory as to what 3 you saw? 4 A. No. 5 Q. Okay. Because his response is, "I don't know," 6 and then he asks you, "Did you see him trying to remove 7 the steering wheel emblem?" And you say, "trying to 8 remember," right? 9 A. Uh-huh. 10 Q. And you say, "He got something from the car 11 that Sergeant Pfarr made him put back," right? 12 A. Yes. 13 Q. Okay. So your testimony today is that he has a 14 knife and he's cutting with leather, right? 15 A. Am I allowed to read further? 16 Q. Well, I'm just asking you. Was there something 17 else that jogged your memory? 18 A. Like, from the investigator's standpoint? 19 Q. Well, from -- 20 THE HEARING OFFICER: From any standpoint. 21 MS. CASTILLO: Right. 22 THE WITNESS: In talking about it, it made my 23 memory refreshed, yes. 24 BY MS. CASTILLO: 25 Q. Talking about it with... Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1508 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 412 1 A. Lieutenant Proll. 2 Q. Okay. So then Lieutenant Proll says, "So let 3 me ask you specifically. Do you remember seeing Officer 4 Waddell trying to remove the steering wheel emblem?" 5 And you say, "I want to say I remember," and then you, 6 kind of, talk about the -- you know, where the air bag 7 is, right? 8 A. Yes. 9 Q. And you say, "I think that's what he may have 10 gotten that he may have had to put back." 11 A. Yes. 12 Q. Okay. Again, your testimony today was he had a 13 knife, there's leather involved. 14 Okay. Where did -- where was the jogging of 15 the memory with the knife and the leather and the 16 cutting? 17 A. I don't recall. 18 Q. Where did that come from? 19 A. I don't recall. 20 Q. Did that just materialize today? 21 A. No. 22 Q. When did that come up? 23 A. I don't remember. 24 Q. Where in this transcript do we see knife, 25 leather, cutting? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1509 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 413 1 THE HEARING OFFICER: If this is just a test of 2 how well he can read a transcript, I don't really need 3 that. I already read it. I saw references to knives 4 and leather, and whatever. I -- I mean, what are you 5 trying to do here? 6 BY MS. CASTILLO: 7 Q. I want to know, was there something that the 8 investigator said to you -- 9 A. No. 10 Q. -- that reminded you about knives and leather? 11 A. No. 12 Q. At some point, you, then, have another 13 conversation about a center emblem, right? 14 A. Of the wheels? 15 Q. Well, what is -- you say center emblem, meaning 16 the Bentley emblem, right? 17 THE HEARING OFFICER: Is there a particular 18 place in the transcript? 19 MS. CASTILLO: Same page, yes. 20 THE WITNESS: Are we doing this 21 chronologically? 22 THE HEARING OFFICER: Well, it's Page 5 of the 23 transcript, Department 19, you have in front of you. So 24 there's a question about that middle thing -- 25 MS. CASTILLO: Right. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1510 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 414 1 THE HEARING OFFICER: -- where it says, "but he 2 goes to the center emblem out of the wheels." Is that 3 what you're talking about? 4 MS. CASTILLO: Right. 5 THE HEARING OFFICER: Okay. 6 THE WITNESS: Yes. 7 BY MS. CASTILLO: 8 Q. So that's now -- now he leaves the steering 9 wheel, right? 10 A. Correct. 11 Q. Okay. So when he left the steering wheel, did 12 he have something in his hands that was made to put back 13 before he went to the wheels? 14 A. I don't recall that. 15 Q. Okay. But you had -- in your interview, you 16 said, "I think that's what he was forced to put back 17 when he was confronted by Sergeant Pfarr," right? 18 A. Yeah. 19 Q. Okay. Did you actually see cutting or do you 20 think he ripped it at one point, right? 21 A. Yeah. 22 Q. Okay. And you never saw anything in an 23 evidence bag, right? 24 A. No. 25 Q. Okay. And then when Sergeant Pfarr said, let's Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1511 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 415 1 get out of here before we're in the IA, he kind of 2 laughed about it, right? 3 A. Yes. 4 Q. It wasn't, I'm really angry, right? 5 I mean, he turned red earlier, you said, and 6 there was that nonverbal cue, but he also, at this 7 point, kind of laughed and said, let's get out of here, 8 right? 9 MR. PALMER: Objection. Misstates the 10 testimony and misstates the transcript. 11 THE HEARING OFFICER: I didn't hear anything 12 about laughing. Did he laugh? 13 THE WITNESS: No. 14 BY MS. CASTILLO: 15 Q. Well, you said, I think, he said -- oh, you 16 kind of laughed? 17 A. Yeah. 18 Q. Okay. Did he react to your laughter? 19 A. We parted ways. I don't know his reaction. 20 Q. You didn't see a reaction. Okay. 21 THE HEARING OFFICER: Is that a no? 22 THE WITNESS: Correct. No. 23 THE HEARING OFFICER: You've got to say it out 24 loud so she can get it. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1512 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 416 1 BY MS. CASTILLO: 2 Q. And did you talk to the tow truck driver, at 3 all? 4 A. Not that I recall, no. 5 Q. And you -- okay. So you don't know what, if 6 anything, he saw, at all? 7 A. No. 8 Q. Okay. Even though you told IA that you 9 probably thought that he didn't see what was going on, 10 you just don't know now? 11 A. What are you referring to? 12 Q. Nevermind. 13 And after this happened in February, did you 14 ever hear about this again in the department? 15 A. Just when I was asked to come to the 16 lieutenant's office. 17 Q. But no one else talked about it in small talk 18 in the hallway, like, can you believe Waddell did that, 19 or -- 20 A. No. 21 Q. It wasn't a big thing around the department, 22 right? 23 A. Not at staff level. A patrol officer, no. 24 Q. Okay. And Officer Kevany was there, too, 25 right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1513 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 417 1 A. Correct. 2 Q. Okay. 3 THE HEARING OFFICER: Anything else? 4 MS. CASTILLO: Just one minute. I think I'm on 5 the last pages. 6 THE HEARING OFFICER: Okay. 7 MS. CASTILLO: I just want to double-check 8 before I let him go. 9 BY MS. CASTILLO: 10 Q. You never saw Sergeant Pfarr on the phone, 11 correct, after this? 12 THE HEARING OFFICER: I'm sorry. He never saw 13 him on the phone? 14 MS. CASTILLO: On the phone at the scene. 15 THE WITNESS: I don't remember. 16 BY MS. CASTILLO: 17 Q. Like, as he -- you didn't drive away with him 18 in the same car, correct? 19 A. No. 20 Q. Okay. And you didn't see him on the phone as 21 he was driving away, right? 22 A. Not that I remember, no. 23 Q. Okay. And your impression was that the Bentley 24 metal was cheap metal and, therefore, it was just 25 bending really easily? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1514 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 418 1 A. Thin, not cheap. 2 Q. Your words -- 3 A. If I said cheap, then that's fine, but, yeah, 4 it was thin metal and it bent easily. 5 Q. Okay. So if you said cheap metal, then -- 6 okay. 7 A. Yes. That's fine. 8 Q. I don't know what page it is on yours. It's 9 one of the last pages. 10 A. Okay. 11 Q. It says that you believe that the result of 12 this would have been, basically, what I got for the 13 walker on the write-up. What does that mean? 14 THE HEARING OFFICER: I'd like to be able to 15 follow along. Could you -- 16 MS. CASTILLO: I don't know what page it is. 17 I'm trying to reference -- 18 THE HEARING OFFICER: What are the first few 19 words? It's Officer Benson's testimony you're looking 20 for? 21 MS. CASTILLO: Yes. 22 THE HEARING OFFICER: What does it say on your 23 document? 24 MS. CASTILLO: The start of my page is, "that 25 for personal gain," but I don't know what the start -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1515 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 419 1 THE HEARING OFFICER: "That for personal 2 gain"? 3 MS. CASTILLO: Would be the start of my page, 4 but it's in the middle of a paragraph. 5 THE HEARING OFFICER: Oh. Well, tell me what 6 the words are at the beginning of what he says so that I 7 can find it. 8 MS. CASTILLO: His answer is, "Basically, what 9 I got for the walker on the write-up." 10 THE HEARING OFFICER: Okay. That's on Page 15 11 towards the bottom of Department 19. 12 MR. PALMER: Thank you. 13 BY MS. CASTILLO: 14 Q. So my question is, what does that mean? 15 MR. PALMER: Well, I would object if it asks 16 him to disclose some contents of his confidential 17 personnel file. 18 BY MS. CASTILLO: 19 Q. Is that what that means? 20 THE HEARING OFFICER: Do you know what that's 21 about? 22 THE WITNESS: I'm still having trouble. 23 MR. PALMER: Page 15. 24 THE WITNESS: Oh, yeah. I don't have a problem 25 saying. That was a supervisor's note for horseplay in Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1516 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 420 1 the locker room. It was an informal thing. 2 MS. CASTILLO: I have walker. So that's why. 3 MR. PALMER: I have locker. 4 MS. CASTILLO: I just didn't know what that 5 meant. 6 MR. PALMER: Which one's right? 7 THE WITNESS: Locker. 8 THE HEARING OFFICER: Okay. 9 BY MS. CASTILLO: 10 Q. So that should be locker room, right? 11 A. Correct. 12 THE HEARING OFFICER: Another point for the 13 certified court reporter. 14 MS. CASTILLO: I'll send an errata. 15 BY MS. CASTILLO: 16 Q. So when Lieutenant Proll asked you what you 17 thought this was, you said it could be a theft? 18 A. Yeah. On the next page. 19 Q. Okay. And this wasn't a joke, right, in your 20 mind? 21 A. In my mind, no. 22 MS. CASTILLO: Okay. All right. Nothing else. 23 THE HEARING OFFICER: Anything on re-direct? 24 MR. PALMER: I did, but it went away. So no. 25 THE HEARING OFFICER: So can we excuse Officer Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1517 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 421 1 Benson then? 2 MS. CASTILLO: Yes. And I don't plan to 3 subpoena him now. 4 THE HEARING OFFICER: Thank you, Officer 5 Benson. Appreciate it. You're excused. 6 THE WITNESS: Thank you. 7 THE HEARING OFFICER: Run out of here before 8 somebody changes their mind. Thanks. 9 THE WITNESS: Thanks. 10 THE HEARING OFFICER: I'd like to stay on the 11 record for a second to take care of some exhibits. Is 12 that one of them? 13 MS. CASTILLO: I would like to have my 14 transcript, and since you have yours, added. 15 THE HEARING OFFICER: Oh, all right. Okay. So 16 we need to mark, as -- is this going to be E, 17 Appellant's E? 18 MS. CASTILLO: It will be Appellant's E. 19 THE HEARING OFFICER: Transcript of Officer 20 Benson by Lieutenant Proll; is that right? 21 Can we take care of some other business while I 22 wait for those copies? 23 MR. PALMER: As far as I'm concerned, yes. 24 MS. CASTILLO: Yes. 25 THE HEARING OFFICER: All right. So Appellant Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1518 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 422 1 D, an e-mail by... 2 MS. CASTILLO: Bledsoe. 3 THE HEARING OFFICER: Yes, Lieutenant Bledsoe 4 to Lieutenant Proll, dated February 5, '14. Any 5 objection to the admission of that? 6 MR. PALMER: No. 7 THE HEARING OFFICER: Okay. That objection -- 8 Appellant's D is admitted. 9 And then there was a whole bunch of department 10 exhibits we've been talking about today. Most recently, 11 I believe, we were talking about Department's 19, the 12 transcript of interview of Officer Benson by Lieutenant 13 Proll on February 5th, 2014. This is the department's 14 version. Any objection to the admission of that? 15 MS. CASTILLO: No. I think we're both going 16 to... 17 THE HEARING OFFICER: Okay. You're putting in 18 your own vote. We'll get that one in. 19 We also spent a lot of time talking about 20 Department 7, which is a memorandum by Lieutenant 21 Bledsoe to Chief -- is it Gesell -- GESELL. Dated March 22 3rd, 2014. Any objection to 7? 23 MS. CASTILLO: No. 24 THE HEARING OFFICER: Okay. 7 is admitted. 25 And then we had a whole bunch of others. Would Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1519 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 423 1 you care to go through them? 2 MR. PALMER: Sure. 3 THE HEARING OFFICER: And help us remember 4 which ones they are. Let's see. 13. We talked about 5 13, didn't we? Interview of Lieutenant Jeff Smith by 6 Lieutenant John Bledsoe, November 15th -- 7 MR. PALMER: Yes, we did. 8 THE HEARING OFFICER: -- 2013. Any objection 9 to 13? 10 MS. CASTILLO: No. 11 THE HEARING OFFICER: Okay. 12 MR. PALMER: We talked about 14. 13 THE HEARING OFFICER: Any objection to 14? 14 MR. PALMER: Stahnke. 15 MS. CASTILLO: Oh, no. 16 MR. PALMER: And 15. 17 THE HEARING OFFICER: So 14 is admitted. And 18 15? 19 MS. CASTILLO: Right. 15 -- 14, no objection; 20 15, no objection. 21 THE HEARING OFFICER: Okay. 22 MR. PALMER: We, basically, went through all of 23 these. 24 THE HEARING OFFICER: 16, interview of Sergeant 25 Pfarr by the Lieutenant Bledsoe, December 13, 2013. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1520 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 424 1 MS. CASTILLO: No objection. 2 THE HEARING OFFICER: Okay. So -- 3 MR. PALMER: 17, I don't think we talked about 4 today, but it came up yesterday. It might already be 5 in. I don't know. 6 THE HEARING OFFICER: It is not in and -- 7 MS. CASTILLO: I can state, for the record, I'm 8 not going to object to his transcripts. I'm planning on 9 bringing my own transcripts. 10 THE HEARING OFFICER: I understand. I didn't 11 mark it up. So if we talked about it, I didn't make any 12 note. Oh, wait -- no, I did not make any notes. 13 So any objection to 17, or are we going to 14 cross that bridge when we come to it? 15 MS. CASTILLO: I'm not going to object to 16 transcripts. 17 THE HEARING OFFICER: All right. So then 17 is 18 in. That means 18 is in. We already admitted 19. So 19 20, 21 and 22 are also transcripts. Those come in, too. 20 MS. CASTILLO: Correct. 21 THE HEARING OFFICER: All right. Going back to 22 the beginning then, the only documents we haven't dealt 23 with are 1 through 6 and 8. Oh, and the photographs of 24 the damaged Bentley. You withdrew those, right? 25 MR. PALMER: Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1521 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 425 1 THE HEARING OFFICER: Okay. So 1 through 6 and 2 8, can we deal with any of those now? 3 MS. CASTILLO: Here. This is for you. 4 THE HEARING OFFICER: Thank you. While we're 5 thinking about that, we're going back to Appellant's E. 6 This is a certified transcript of an audio recording of 7 an interview of Officer Greg Benson. This was on 8 February 5th, 2014; is that right? This is the 9 certified version of the transcript we were discussing 10 earlier as Department's 19. Any objection to the 11 admission of E? 12 MR. PALMER: No. 13 THE HEARING OFFICER: That objection -- 14 Appellant's E is admitted. 15 So going back to the department's exhibits, the 16 municipal code sections and the personnel rules and regs 17 would seem to not be much of an issue. Can we admit 18 those? 19 MS. CASTILLO: I'll stipulate to 1 and 2. 20 THE HEARING OFFICER: Okay. Very good. 21 Then we have the Vehicle Code Section 10852, 22 breaking and removing vehicle parts. 23 MS. CASTILLO: I have an issue with that, but 24 that's for a different day. 25 MR. PALMER: The document, itself, is just -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1522 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 426 1 MS. CASTILLO: I know you're going to do all 2 that, but I have something to say about that later. 3 THE HEARING OFFICER: All right. Well, I'm 4 going to -- 5 MS. CASTILLO: It's judicial notice -- 6 THE HEARING OFFICER: I'm going to admit it for 7 what it's worth. That's right. I can read that law for 8 myself, but there it is, easy to find. 9 Do you want to deal with 4, 5 and 6 now, 10 Mr. Palmer? 11 MR. PALMER: Sure. We can. 12 THE HEARING OFFICER: 4, notice of decision of 13 disciplinary action dated October 1, 2014. Any 14 objection? 15 MS. CASTILLO: Wait a minute. Which is this? 16 5? 17 THE HEARING OFFICER: This is 4. 18 MS. CASTILLO: I am going to have -- I'm not 19 going to stipulate to 4 because of some issues. 20 THE HEARING OFFICER: Is there an objection 21 that you would like to note for the record, particular 22 one? 23 MS. CASTILLO: Not yet, just given the fact 24 that that was the whole chief Skelly thing that I'm 25 going to subpoena. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1523 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 427 1 THE HEARING OFFICER: All right. We'll deal 2 with that later then. What about 5? 3 MS. CASTILLO: Same. 4 THE HEARING OFFICER: All right. And 6? 5 MS. CASTILLO: We haven't heard from this 6 captain yesterday. 7 THE HEARING OFFICER: Wait until we get to 8 Captain Staley's testimony? That's fine. And then that 9 leaves 8. That's Chief Gesell and Lieutenant Proll. So 10 we're going to hold off on that, too, I guess? 11 MS. CASTILLO: Right. 12 THE HEARING OFFICER: All right. So we'll deal 13 with those later. 14 MR. PALMER: 9 and 10? 15 THE HEARING OFFICER: 9 and 10 are already in. 16 12 is already in and everything else is in. 17 While we're still on the record, I had a couple 18 more things. I was wondering, if there's no dispute as 19 to them, if I could fill them in, and it has to do with 20 the identities of some personnel that were referred to 21 today and yesterday. All I have to do is find them. 22 MR. PALMER: I'm sorry. I missed the 23 introductory comment. 24 THE HEARING OFFICER: I was trying to get the 25 full identities of some personnel that were referred to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1524 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 428 1 in testimony yesterday and, possibly, today. Officer 2 Chitty, is that -- the first name on Officer Chitty? 3 CAPTAIN STALEY: Christopher. 4 THE HEARING OFFICER: And Officer Cudworth? 5 CAPTAIN STALEY: Robert. 6 THE HEARING OFFICER: And they're officers? 7 That's their rank; is that correct? 8 CAPTAIN STALEY: Correct. 9 THE HEARING OFFICER: And then there's a 10 Sergeant Goodwin. First name? 11 CAPTAIN STALEY: Janice. 12 THE HEARING OFFICER: J-A-N-I-C-E? 13 CAPTAIN STALEY: Correct. 14 THE HEARING OFFICER: Okay. And then we 15 already have Officer Kevany is Colleen; is that right? 16 CAPTAIN STALEY: Yes. 17 THE HEARING OFFICER: Okay. So I just wanted 18 to do a little housekeeping there. 19 Are there any more department witnesses for 20 today? 21 MR. PALMER: No, sir. 22 THE HEARING OFFICER: All right. So let's go 23 off the record for a second. 24 (Discussion off the record.) 25 THE HEARING OFFICER: So the department, just Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1525 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 429 1 to confirm, you have no more witnesses for today; is 2 that right? 3 MR. PALMER: Correct. 4 THE HEARING OFFICER: Okay. So we're going to 5 stand in recess until July 9, which is our next hearing; 6 although, there is this issue of the Pitchess motion 7 involving Sergeant Pfarr. So we will try to resolve 8 that by telephone conference or, otherwise, before too 9 long. All right? 10 MS. CASTILLO: Okay. 11 THE HEARING OFFICER: Thank you, everybody. 12 (The proceedings adjourned at 4:15 p.m.) 13 14 15 16 17 18 19 20 21 22 23 24 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1526 WADDELL ARBITRATION, DAY 2 6/26/2015 McDANIEL REPORTING Page: 430 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 1527 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 431 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 III PAGES 431- 719 Hiring Authority. ) TRANSCRIPT OF PROCEEDINGS SAN LUIS OBISPO, CALIFORNIA THURSDAY, JULY 9, 2015 9:14 A.M. - 5:41 P.M. REPORTED BY MELISSA PLOOY, CSR #13068 MCDANIEL REPORTING Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1528 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 432 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, JULY 9, 2015, COMMENCING AT THE 6 HOUR OF 9:14 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 3333 CONCOURS STREET BUILDING 4, SUITE 4100 17 ONTARIO, CALIFORNIA 91764 909) 466-5600 18 KASEY@GCHATTORNEYS.COM 19 FOR THE HIRING AUTHORITY: 20 JONES & MAYER 21 BY: GREGORY P. PALMER, ESQ. 3777 NORTH HARBOR BOULEVARD 22 FULLERTON, CALIFORNIA 92835 714) 446-1400 23 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 1529 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 433 1 I N D E X 2 WITNESS DIRECT CROSS REDIRECT RECROSS 3 LIEUTENANT JEFF SMITH 441 489 679 704 4 5 6 I N D E X T O E X H I B I T S 7 APPELLANT'S MARKED ADMITTED 8 EXHIBIT F 505 598 9 EXHIBIT G 519 598 10 EXHIBIT H 525 598 11 EXHIBIT I 561 598 12 EXHIBIT J 604 -- 13 EXHIBIT K 607 -- 14 EXHIBIT L 610 -- 15 EXHIBIT M 633 651 16 EXHIBIT N 660 679 17 18 19 20 21 22 23 24 25 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1530 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 434 1 THE HEARING OFFICER: Good morning, everyone. 2 It's Thursday, July 9, 2015, and we're here for day 3 three of the appeal in the matter of the termination of 4 Officer Kevin Waddell. This is CSMCS Case Number 5 ARB14-0209. I'm Chris Cameron. 6 It appears that all the parties are here, but 7 just for the record, could I have the appearances of 8 counsel, first of all, on behalf of the department. 9 MR. PALMER: Good morning. Greg Palmer for the 10 City of San Luis Obispo Police Department. 11 THE HEARING OFFICER: Okay. Along with 12 Ms. Dietrick and Captain Staley? 13 MR. PALMER: Correct. 14 THE HEARING OFFICER: And on behalf of the 15 appellant? 16 MS. CASTILLO: Kasey Castillo of Gaspard, 17 Castillo, Harper, with the appellant, who is present, as 18 well as Mrs. Waddell, who is also present as an 19 observer. 20 THE HEARING OFFICER: Hello there. Thank you 21 very much. 22 Before we get started with the proceedings for 23 day three, there was, at least, one piece of business 24 that I wanted to note for the record, then I can take up 25 anything else the parties might have. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1531 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 435 1 During the last hearing when we got together, 2 the appellant made it known that it was going to be 3 serving some Pitchess motions. So I just wanted to 4 record for the record what I've received. I have, I 5 believe, four separate motions from the appellant, 6 noticing for July 23rd, the following motions: First of 7 all, a notice of motion and motion for the discovery and 8 disclosure of peace officer personnel file Pitchess 9 motion of Sergeant Chad Pfarr, same thing with respect 10 to Lieutenant Jeff Smith, same thing with respect to 11 Lieutenant John Bledsoe and same thing with respect to 12 Lieutenant Bill Proll. 13 Now, there are a couple of variations with the 14 specific documents that are referenced, but I'm just 15 going to postpone the details of that until we take up 16 the merits of the motions. 17 And then I received from the department, from 18 the city, filed by Mr. Palmer, two documents, the 19 opposition of custodian of records of the San Luis 20 Obispo Police Department to appellant's motion for 21 discovery of peace officer personnel file information, 22 and it deals with all four of the motions just 23 mentioned, as well as a companion notice of motion and 24 motion to quash subpoenas duces tecum therein. 25 And, then, I take it -- and I think you said Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1532 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 436 1 before we went on the record, but, Ms. Castillo, there's 2 going to be a response to the motion to quash and, also, 3 a reply to the opposition; is that right? 4 MS. CASTILLO: Correct. 5 THE HEARING OFFICER: Okay. So what I 6 represented to the parties before we went on the record, 7 and I just want to make clear here, is we had talked 8 about possibly having a telephone conference, but in 9 light of the importance of these issues, both for the 10 privacy of the officers whose records are being 11 subpoenaed and, also, the importance to the appellant, 12 who is in termination proceeding, I think it's better if 13 I put those proceedings, including my ruling and 14 whatever reasons would accompany it, on the record. 15 So I'm going to put off until our next date of 16 hearing on July 23rd, taking up the matter formally. 17 I'll have the benefit of all the paperwork by then and 18 then the parties can take it from there. 19 MS. CASTILLO: And I think that if we could ask 20 that those individuals be ready and available by the 21 city, that would be very helpful for us. 22 THE HEARING OFFICER: And, I guess, along those 23 lines, to the extent that I would find good cause for 24 looking at any of the personnel files, to be able to 25 have them available so I could do an in-camera review. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1533 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 437 1 I'm not dealing anything about what I'm going to say 2 when the time comes because I'm still considering all 3 the paperwork, but I don't know how that works, but that 4 would be my preference. 5 MR. PALMER: And we understand that need. The 6 only thing I can say is the general comment, I've always 7 said to the extent the witness is available to us, we'll 8 make them available to Ms. Castillo. 9 I asked for, on June 29th, a list of witnesses 10 that we needed to contact to make sure they were 11 available for Ms. Castillo. She responded, but said 12 she'd only -- I don't want to misrepresent what she 13 said, but she responded in an e-mail saying that the 14 only two witnesses that needed to be produced by me 15 today were the two that I'm going to produce today. 16 THE HEARING OFFICER: Today, meaning July 17 9th? 18 MR. PALMER: That's correct. 19 THE HEARING OFFICER: That's fine. 20 MR. PALMER: And she didn't give me any idea in 21 looking forward, but in light of what you just said, we 22 will make inquiries and see if those four witnesses will 23 be available on the 23rd or 24th and make every effort 24 to do so. 25 MS. CASTILLO: And then in response -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1534 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 438 1 MS. DIETRICK: I'm sorry. I believe we may 2 already have information about the unavailability of 3 Lieutenant Proll. He is doing the Special Olympics 4 torch run of which he is one of the primary coordinators 5 of participants and he is involved in that out of state, 6 I believe, or out of the area and unavailable. 7 THE HEARING OFFICER: So both of the days we 8 have, he wouldn't be available? 9 MS. DIETRICK: That's correct. 10 THE HEARING OFFICER: Then we'll take that up 11 whenever we can. 12 MS. CASTILLO: And then I will e-mail you with 13 another -- if you rest today and we don't trail into 14 that date, then I will give you whoever I'm ready to go 15 with on those dates. 16 MR. PALMER: 10-4. 17 THE HEARING OFFICER: I did have one question 18 pertaining to this motion, which is, essentially, that 19 the custodian of records produce relevant documents. 20 For the record, for the department and/or the 21 city, who is your custodian of records? Who would -- 22 who should properly get that motion? I don't know 23 that -- I don't know how it affects what's been 24 presented, but I do note that the appellant or the 25 department has contended that service wasn't proper. So Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1535 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 439 1 who is supposed to get served? 2 MS. DIETRICK: Our administrative captain is 3 the custodian of record. 4 THE HEARING OFFICER: And that's who? 5 MS. DIETRICK: Captain Storton. 6 THE HEARING OFFICER: Okay. I'm just putting 7 that out here now in case it comes up later. 8 Okay. Any other housekeeping we need to take 9 care of before we get back to the department's case? 10 MR. PALMER: Yes, sir. One on my side. At the 11 conclusion of the last set of hearing dates, I took the 12 labor of preparing an exhibit book for the appellant's 13 exhibits. I did that. It's black in color. I put it 14 there. I don't know where it went. 15 MS. CASTILLO: Oh, it's right here. I thought 16 you were giving it to me. 17 MR. PALMER: That's not it. They ate it. 18 THE HEARING OFFICER: Is there one for me? 19 Wow. Thank you. 20 MR. PALMER: I prepared that, actually, for the 21 witness, but, you know -- 22 THE HEARING OFFICER: Well, then we'll leave it 23 here for the witness, since I do have the documents. I 24 took the liberty of going, yesterday, myself, to Staples 25 here in San Luis Obispo to pick up some documents to put Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1536 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 440 1 the transcripts in. So I neglected to do it for the 2 appellants, but -- 3 MS. CASTILLO: I have binders, but I didn't 4 know who was coming and when they were coming. So I'll 5 bring everyone the beautiful binders I have. 6 THE HEARING OFFICER: Don'g worry about it. If 7 you do, I will, certainly, accept it, but I appreciate 8 that the witness has the book. And so that, of course, 9 will be part of the record that goes to the City 10 Council? 11 MR. PALMER: Yes, sir. 12 THE HEARING OFFICER: Perfect. All right. 13 Anything else? 14 MR. PALMER: No. 15 THE HEARING OFFICER: All right. Very good. 16 So I believe we are ready for the department's 17 next witness. Have I got that right? We finished the 18 previous witness? 19 MR. PALMER: Correct. 20 THE HEARING OFFICER: Okay. So who is the 21 department going to call? 22 MR. PALMER: Lieutenant Jeff Smith. 23 THE HEARING OFFICER: Very good. Oh, 24 Lieutenant Smith, there you are. I didn't see you. If 25 we get a little crowded here -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1537 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 441 1 THE WITNESS: No worries. We'll make room. 2 THE HEARING OFFICER: -- we'll try to move 3 everything around. Excuse me. Sorry about that. 4 Lieutenant Smith, could I get you to raise your 5 right hand? Do you affirm that the testimony that you 6 are about to give will be the truth, the whole truth and 7 nothing but the truth? 8 THE WITNESS: I do. 9 THE HEARING OFFICER: You can put your hand 10 down. We already have the spelling of the lieutenant's 11 name? 12 THE COURT REPORTER: Yes. 13 THE HEARING OFFICER: Go ahead, Mr. Palmer. 14 15 DIRECT EXAMINATION 16 BY MR. PALMER: 17 Q. Thank you. Good morning. 18 A. Good morning. 19 Q. Would you tell us by whom you are employed, 20 please? 21 A. The San Luis Obispo Police Department. 22 Q. In what capacity? 23 A. Police lieutenant. 24 Q. How long have you been employed with the San 25 Luis Obispo Police Department, total? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1538 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 442 1 A. Almost 13 years. 2 Q. How long have you been a lieutenant? 3 A. Three -- I'm sorry. Almost five years now. 4 Q. And did you have prior service with another law 5 enforcement agency before San Luis Obispo? 6 A. Yes, I did. 7 Q. Where? 8 A. Fontana P.D. 9 Q. How long did you spend there? 10 A. Almost two years. 11 Q. What is your current assignment? 12 A. The day watch commander. 13 Q. Was that your assignment in 2013? 14 A. It was. 15 Q. Okay. As a -- were you a lieutenant in 2013? 16 A. I was. 17 Q. As a lieutenant of the police with the San Luis 18 Obispo Police Department, do you have some ancillary 19 duties besides just normal patrol supervision? 20 A. Yes. 21 Q. Among them, in 2013, did you have the duty to 22 supervise a particular shift called the CAT shift? 23 A. I did. 24 Q. Now, we've heard a lot about the CAT shift from 25 other witnesses in this case, but just to make sure Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1539 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 443 1 we're all talking about the same thing, give us a 2 25-word summary of what the CAT shift is. 3 THE HEARING OFFICER: Be sure not to say CAT 4 shift too quickly. 5 MS. CASTILLO: Or CAT duty. 6 THE HEARING OFFICER: I like that one better. 7 MS. CASTILLO: Or CAT assignment. 8 THE WITNESS: Yeah. They are a unit that was 9 formulated to address recurrent problems in our downtown 10 area, such as transient-related issues, drinking, mental 11 health issues, things like that. It was, primarily, a 12 foot patrol team at that time, but it has evolved to 13 bikes at times, or vehicle. 14 BY MR. PALMER: 15 Q. When was the CAT shift originally implemented, 16 approximately? 17 A. We began talking about it in 2012, 18 approximately, April. 19 Q. Okay. And when did it go live? 20 A. '13. It was when we started going with the -- 21 the shifts, I believe, later that year, sometime in 22 June, is when we actually selected the officers for the 23 position. 24 Q. Which year are you talking about? 25 A. 2013. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1540 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 444 1 Q. Let's go back to 2012, the original 2 implementation. 3 A. Okay. 4 Q. Did it evolve over time? 5 A. It did. 6 Q. Can you explain? 7 A. Originally, we had received requests from 8 downtown city and counsel to address the recurrent 9 problem. So we just started with some shifts and they 10 were somewhat random. There was no consistency. So we 11 would have 12-hour, 8-hour, 5-hour shifts of just trying 12 to have a presence in the downtown area. And April 13 2013, we began five-man -- or five-hour blocks and tried 14 to be more consistent when we had officers downtown 15 working these shifts. 16 Q. Okay. And was there some process in which you 17 were involved to take it from the evolutionary inception 18 where they were kind of random shift to getting down to 19 11: 00 to 4:00, being of some importance? 20 A. Yes. I was asked to fly overtime shifts. So I 21 produced a sign-up list and sent out an e-mail to P.D. 22 officers asking if anyone was interested, if they could 23 sign up on the bulletin board. Again, these shifts were 24 specific, from 11: 00 to 4:00, and that they were going 25 to be for downtown foot patrol. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1541 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 445 1 Q. Was there some reason 11: 00 to 4:00 was 2 adopted? 3 A. The captain and chief wanted to focus on when 4 we had the most activity in the downtown when people 5 were coming for lunch and businesses were open and 6 people were, typically, in our town, that we did have a 7 downtown presence. 8 Q. Is the CAT shift now a permanently-assigned 9 shift to particular officers? 10 A. It is. 11 Q. Was it that way back in 2013? 12 A. No. 13 Q. Okay. What was it, instead, in 2013? 14 A. Pardon? 15 Q. What was it instead? 16 A. It was an overtime assignment. 17 Q. And, approximately, when did that start, the 18 11: 00 to 4:00 shifts, again? 19 A. I believe April 2013 is when we started having 20 the consistency of the sign-up for the 11: 00 to 4:00 21 shift. 22 Q. And how was sign-up supposed to work? 23 A. I sent out an e-mail, then I just posted a 24 list, basically, with dates that I was looking for 25 officers to work. Many officers could sign up as they Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1542 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 446 1 wanted, and then when I would take down the list, I 2 usually had a take-down date for the list. The shifts, 3 whether it was for one officer, two officers, it was 4 given to the senior officer on that list. 5 Q. How long was that list posted before you took 6 it down? Did it vary? 7 A. Yeah. Might have been two weeks, one to two 8 weeks. I tried to give them enough time, for every 9 officer who worked, to see the posting. 10 Q. Okay. So this was a sign-up sheet kind of 11 thing with some blank lines? 12 A. Yes. 13 Q. Did it have some dates attached to it? 14 A. Yes. 15 Q. And you write their names on the line? 16 A. Yes. 17 Q. Would multiple officers sometimes sign up? 18 A. Yes. 19 Q. What did you do with that list when you took it 20 down? 21 A. I would review it, select the officers that 22 were going to work the shifts, I would put it into 23 SpeedShift, which is our scheduling program, and, 24 afterwards, I would -- I think I would hold on to the 25 list until it was finished, and then I would throw it Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1543 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 447 1 away. 2 Q. How did you make the final decision on which 3 officer was going to get which assignment? 4 A. Seniority. 5 Q. And when you made your final decision, did you 6 put out some sort of final list? 7 A. I would send out an e-mail to all the officers 8 that had signed up, and on the list would be the date 9 and time the officers that were selected for the shift. 10 Q. And did you start doing that in around April 11 2013 when the 11: 00 to 4:00 shift got solidified? 12 A. Yes. 13 Q. And how about often -- I get the sense this was 14 a recurring e-mail? 15 A. Any time I put -- post a new list for shifts, 16 then I would send out, letting the officer know which 17 ones were selected. 18 Q. And was it a particular range of time? 19 A. It varied. Depending on when the last one 20 ended, I would, typically, meet with Captain Staley, 21 asked him if he wanted to continue, what dates we want 22 to focus on, and based on the overtime, then I would put 23 that e-mail out. 24 Q. Was that part of your duty as being the 25 supervisor of the CAT shift? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1544 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 448 1 A. Yes. 2 Q. Do you see that black notebook in front of you? 3 A. I do. 4 Q. That is a new notebook to our room. We're 5 going to refer to that as the appellant's exhibit. 6 A. Okay. 7 Q. Can you take that notebook and open it up to 8 Tab 2, please? 9 THE HEARING OFFICER: Let me catch up with you 10 here. 11 MR. PALMER: Sure. 12 THE HEARING OFFICER: Is that Appellant's B? 13 MR. PALMER: I'm sorry. Appellant's B, yes. 14 BY MR. PALMER: 15 Q. Are you at Appellant's B? 16 A. Yes. 17 Q. Do you recognize that? 18 A. Yes. 19 Q. How do you recognize that? 20 A. It's an e-mail that was sent out. It looks 21 very familiar to one that I had authored in the past. 22 This one appears to be from Sergeant Pfarr. 23 Q. Why would it come from Sergeant Pfarr to you? 24 A. I probably had asked him, at the time, to send 25 it out for me, whether I was out of the office, or Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1545 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 449 1 something. I don't recall why he did it, but, more than 2 likely, it was because I asked him to do it. 3 Q. The date of the e-mail was? 4 A. November 8th. 5 Q. And was it sent to multiple people? 6 A. Yes, it was. 7 Q. There's an introductory paragraph to 8 Appellant's B? 9 A. Yes. 10 Q. And a list of officers and dates assigned, what 11 does all that mean? 12 A. The introductory paragraph is, basically, my 13 expectations to the officers for the assigned shifts, 14 dates that I want them there, what I expect them to be 15 doing, and then below has a date with one or two 16 officers, and those would have been the officers that 17 had been given the shifts for those particular days. 18 Q. And the span of time of these shifts in this 19 e-mail is what? 20 A. November 9th to December 30th. 21 Q. Does this look similar to other e-mails prior 22 to November 8th, 2013, that you sent with CAT shift 23 assignments? 24 A. Yes. 25 Q. Is this something that you typically did Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1546 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 450 1 between April 2013 and November 2013? 2 A. Yes. 3 Q. Is it, typically, about a two-month period of 4 time, or did that vary? 5 A. Um, it could have varied, but it was -- I 6 think, as we got later on, we expanded it to the time 7 period of one of our rotations, which could be four 8 months, but the early-on stages were kind of going in 9 smaller blocks just to see how it was working. 10 Q. Since this was a recurring e-mail that you sent 11 out from time to time, did you do like a lot of people 12 do, cut and paste from a prior e-mail? 13 A. Yes. 14 Q. I got the sense that -- the introductory 15 paragraph, was that a static paragraph that, pretty 16 much, went along with -- perhaps we can't say all 17 because there's never always, but most e-mails about 18 this topic? 19 A. Yes. 20 Q. And do you remember if you wrote that 21 introductory paragraph? 22 A. It appears to be one that I, possibly, authored 23 early on and Chad probably cut and pasted, but I don't 24 know that for a fact. 25 Q. When you read it, does it sound like your words Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1547 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 451 1 and phrasing? 2 A. Yes. 3 Q. Okay. In the introductory paragraph to 4 Appellant's B, does it emphasize what the hours of the 5 shifts are? 6 A. It does. 7 Q. What does it say? 8 A. 11: 00 to 16: 00 hours. 9 Q. Does it state any ambiguity in that regard? 10 A. No. 11 Q. In the introductory paragraph, does it state 12 what the officers are supposed to be doing during their 13 CAT shift time? 14 A. Yes. 15 Q. What is that? 16 A. That shifts are going to include downtown foot, 17 should include the Transit Center, City Hall, mission 18 area and the library. Please do not use these shifts to 19 complete reports, conduct follow-up from your regular 20 patrol shifts. They're only five-hours shifts and the 21 majority of the time should be spent downtown on foot. 22 Q. Okay. For the next set of questions, I want 23 you to focus on a time period from April 2013, when the 24 11: 00 to 4:00 shifts got solidified, to October, 25 November of 2013. So, like, a six, seven-month period Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1548 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 452 1 of time. You've got that period of time in your head? 2 A. Yes. 3 Q. For that period of time, were you the 4 supervisor of the CAT shift? 5 A. Yes. 6 Q. Now, for some times, could other supervisors 7 overlap and be the -- we've heard the phrase in this 8 case before, functional supervisor. 9 A. Yes. 10 Q. Do you know what a functional supervisor is? 11 A. Yeah. I recall -- 12 Q. Will you -- 13 A. -- when I'm not there, we'll just call them the 14 watch commander. So we always have a watch commander on 15 duty who is the overall supervisor. When the lieutenant 16 or the watch commander is not there, then the sergeant 17 will assume the watch commander's duties. 18 Q. Suffice it to say, are you present on duty 19 functioning as a lieutenant police when the CAT shift 20 occurred? 21 A. No. 22 Q. So who would be the supervisor if you're not 23 around? 24 A. The sergeant. 25 Q. But if you're around, are you the supervisor? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1549 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 453 1 A. Yes. 2 Q. Okay. That was true from April 2013 to 3 November 2013? 4 A. Yes. 5 Q. In that period of time, did any officer -- did 6 any San Luis Obispo police officer, who put in for and 7 signed up and was assigned a CAT shift, come to you and 8 request some modification in their start time of the CAT 9 shift or the end time of the CAT shift for a particular 10 shift? 11 A. Possibly. 12 Q. Do you have any particular -- I don't want you 13 to name names, but do you have any particular time event 14 when this occurred, in your head? 15 A. No. 16 Q. No memory of it, at all? 17 A. No. 18 Q. Okay. Then let's speak generally. What's your 19 general attitude toward requests for an accommodation of 20 some sort to come in late or go home early on a 21 particular -- let's just use CAT shift as an example. 22 Do you have some sort of thing that you've 23 adopted in terms of your style of supervision? 24 A. Yes. It has to be run by myself. If I'm not 25 there, it can be discussed with a sergeant, but, again, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1550 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 454 1 if there's -- if they cannot work a shift, it needs to 2 be filled or replaced by another officer. If there 3 needs to be an accommodation, they can run it by me. If 4 I feel that we can meet that accommodation, I'll work 5 that out with the officer. 6 Q. And do you try to be accommodating? 7 A. I do. 8 Q. Even though you don't have a particular 9 instance in mind when an officer has to come in, say, a 10 little bit late or leave a little bit early, do you 11 think it probably happened on occasion between April and 12 November of 2013? 13 A. Yes. 14 Q. And you probably approved it? 15 A. Probably. 16 Q. Would that have been a case where the request 17 was made before the shift occurred? 18 A. Yes. 19 Q. And would that have been some sort of good 20 reason to make some sort of accommodation? 21 A. Yeah. 22 Q. Were there some requests to come in late or go 23 home early that would be outside the realm of something 24 you would approve? 25 A. Uh, I'm not sure -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1551 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 455 1 Q. Would 11: 15 -- for a good circumstance, for a 2 good reason, would 11: 15 be fine? 3 A. Yes. 4 Q. For a good reason, would 11: 30 be fine? 5 A. Yes. 6 Q. Is there any tolerance level after that that 7 you'd say no? 8 A. Yeah. Probably getting after the 11: 30 hour 9 that I would have issue because, again, we're getting 10 out of the established time that the captain and chief 11 had discussed when the officer's down there. 12 So if it was going to be kind of intruding into 13 that time period, I would probably tell them that they 14 need to have somebody else cover the shift. 15 Q. Do you recall that this was a common thing that 16 always occurred? 17 A. No. 18 Q. Was it a once in a while thing? 19 A. Yes. 20 Q. Would you take the time to confirm those 21 accommodations, in any way, with the particular officer? 22 A. Yeah. If it was -- typically, officers will 23 come into my office and try to make their 24 accommodations. So, at that time, I'll review the 25 schedule or based on their request to approve it and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1552 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 456 1 make the changes on SpeedShift. If it's an e-mail, 2 again, I would respond to an e-mail. 3 Q. Do you know if that was the typical way -- an 4 e-mail was the typical way you did this, or was it more 5 in person? 6 A. I don't recall. I'd say, right now, most 7 people come to me in person and ask that, and I would 8 say, generally, that's what happens. 9 Q. On these occasions when you did approve a 10 specific change in a start or end time, was it always 11 preceded -- did it always precede the actual shift? 12 A. Yes. 13 Q. And did it always get your specific approval? 14 A. Yes. 15 Q. Again, same time period, April 2013 to start of 16 November 2013, during that time period, did you ever 17 provide any officer to whom -- strike that -- any 18 officer who was assigned to a CAT shift the blanket 19 authority to flex the start and end time and/or start or 20 end time of a CAT shift on their own without your 21 specific advanced approval? 22 A. No. 23 Q. Would that have been contrary to the goal of 24 the program? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1553 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 457 1 Q. Why? 2 A. Again, we're trying to focus on officers being 3 down there at a specific time. Just in general, in our 4 job, that's somewhat ridiculous. We count on officers 5 to be here at a specific time and leave at a specific 6 time so we have that coverage. 7 So, specifically, to the CAT shift, we're 8 focusing on when we knew we had the most problems 9 downtown and it was impacting our businesses and our 10 community when they were down there. 11 So to give a blanket start and end time would 12 not be something that we would do, especially when we 13 were specifically focusing on a time period of problems. 14 Q. If an officer said about this case, talking 15 about the same time period in 2013, that you gave the 16 blanket authority to that officer to flex the start and 17 end time of a particular CAT shift without your specific 18 advance approval, would that be a truth or a lie? 19 A. A lie. 20 Q. Getting back to Appellant's B, do you still 21 have that open there? 22 A. I do. 23 Q. Give me a second here. Okay. We're done with 24 Appellant's B. 25 A. Okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1554 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 458 1 Q. The next set of questions -- do you know 2 Mr. Waddell? 3 A. Yes, I do. 4 Q. How do you know him? 5 A. I worked with him at the police department. 6 Q. How long have you known him? 7 A. Since he started. His start date, I don't know 8 when that was. 9 Q. Years? 10 A. Yes. 11 Q. Would you say you two were close? 12 A. Not really. 13 Q. Would you say you two were -- had animosity 14 with each other? 15 A. No. 16 Q. The next set of questions is specific to 17 Mr. Waddell. Okay? 18 A. Uh-huh. 19 Q. And same time period, April 2013 to November of 20 2013. 21 Do you recall a specific time during that time 22 period with Mr. Waddell where he signed up for and was 23 assigned a CAT shift by you, but he later contacted you 24 prior to the shift occurring about not being able to 25 make that CAT shift, at all, in other words, I can't Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1555 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 459 1 make it? 2 A. I don't recall a specific time. 3 Q. Could have happened, don't know, you don't 4 know? 5 A. I don't remember. It could have happened. 6 Q. Same set-up question, same time period, same 7 individual. 8 Do you have a recollection of Mr. Waddell 9 signing up for and getting assigned a CAT shift who 10 later contacted you prior to the CAT shift occurring, 11 asking to come in late, say, for example, 11: 30? 12 A. Not a specific incident. 13 Q. Think it probably happened? 14 A. Absolutely. 15 Q. If it did happen, what would have been the 16 parameters of that? 17 A. Usually, I just based it on the request and, 18 you know, how long they were going to be late. Again, 19 if it was going to interfere too much with the shift, 20 then I would ask that -- either to find a replacement or 21 make other arrangements. 22 Q. Was Mr. Waddell not unlike other officers who 23 may have made this request? 24 A. Yeah. 25 Q. Did you treat him differently in any way? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1556 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 460 1 A. No. 2 Q. Same officer involved, same time period. 3 Do you recall any time when Mr. Waddell signed 4 up for this assigned CAT shift where he contacted you 5 ahead of the shift about flexing his start time for a 6 shift, say, for example, come in at 10: 30 and leave at 7 3:30 or come in at 11: 30 and leave at 4:30? 8 A. I don't recall a specific time. 9 Q. Or some variation of that, no recollection? 10 A. Not a specific. It could have happened, but I 11 don't remember a specific date or time that he made that 12 request. 13 Q. Okay. Now, same set of questions, same time 14 period, same set-up. 15 Do you have a recollection of Mr. Waddell 16 coming to you, having signed up for and been assigned 17 CAT shift, where he asked you for some sort of blanket 18 authorization from you to flex the start time and/or end 19 time of a CAT shift, a series of CAT shifts, on his own 20 without your specific approval? 21 A. No. 22 Q. Would that have been something you would have 23 approved? 24 A. No. 25 Q. Same time period, April 2013 to November 2013, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1557 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 461 1 not specific to Mr. Waddell, just any CAT shift officer. 2 You with me? 3 A. Yes. 4 Q. Okay. Did you ever use any words and phrases 5 with any officer who had signed up at 4:00 and be 6 assigned a CAT shift that could reasonably be 7 interpreted to mean that you gave blanket authorization 8 for that officer to flex a series of CAT shifts start 9 times and/or end times without your specific approval? 10 A. No. 11 Q. Did you ever say anything to any CAT shift 12 officer that could even remotely be subjective of that? 13 A. No. 14 Q. Same question as to Mr. Waddell. 15 A. For -- that he can choose to flex his time? 16 No. 17 Q. If Mr. Waddell said that you did give him such 18 blanket authority, would that be a truth or a lie? 19 A. It would be a lie. 20 Q. Change gears a little bit. Prior to October 21 19th, 2013, you got that date in your mind? 22 A. October 19th, yes. 23 Q. It's sort of a pivotal date in this case. 24 Did Sergeant Pfarr bring any particular 25 concerning issue to you as it relates to Mr. Waddell? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1558 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 462 1 A. He had talked to me a couple times. I'm not 2 sure of the exact dates. One was regarding he had found 3 Officer Waddell in the downtown office, he had been 4 looking for him, he was watching a movie. Officer 5 Waddell had explained he was having lunch and he had 6 just finished lunch and he was getting ready to head 7 back on his shift, and then he had also came to me and 8 expressed a concern about him, possibly -- I don't 9 remember if it was coming in early or leaving early, but 10 just his times were -- it seemed like he wasn't there on 11 time or had left a little bit early prior to the end of 12 his shift. So it was, basically, his arrival or start 13 time. 14 Q. Do you have a specific date in mind when 15 Sergeant Pfarr downloaded this information to you? 16 A. I don't. 17 Q. Do you remember whether it was on one date or 18 two dates or, excuse me, a series of dates? 19 A. I believe the movie thing was one date and then 20 the coming and going was another date. So there were 21 two different dates that those conversations happened. 22 Q. To the extent you can remember, was it 23 somewhere close in time to the October 19th, 2013, date 24 we've used as a pivot? 25 A. It was prior to that date. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1559 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 463 1 Q. I want to take each incident separately. Okay? 2 The movie thing, what was your reaction to that? 3 A. I was upset. It's a five-hour shift. I told 4 the guys that I expect them to be downtown for that 5 entire shift. I told Chad it's not unreasonable for 6 somebody to get a drink or take a break to use the 7 restroom, but my expectation was they could work at 8 lunch before or eating afterwards and that they needed 9 to be downtown on foot. 10 THE HEARING OFFICER: I'm sorry. Are we 11 talking about a CAT shift with this movie thing? 12 THE WITNESS: Yes, it was a CAT shift. 13 MS. CASTILLO: I'm sorry. Did you say 14 expectation for eating lunch before? I didn't catch 15 that. 16 THE WITNESS: Making arrangements to have lunch 17 before the shift. 18 BY MR. PALMER: 19 Q. And as it relates to coming in late or leaving 20 early, did you have a reaction or say anything to the 21 sergeant about that? 22 A. I just asked him to monitor it and to keep an 23 eye, making sure he was coming in on time and that he 24 was downtown till the end of his shift and leaving at an 25 appropriate time. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1560 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 464 1 Q. And, again, both of those conversations with 2 Sergeant Pfarr, you don't remember the exact date, but 3 it was sometime prior to the October 19th, 2013, date? 4 A. Yes. 5 Q. Okay. Were you on or off duty on October 19th, 6 2013? 7 A. Off duty. 8 Q. And during that day sometime, did you receive a 9 telephone call from Sergeant Pfarr? 10 A. I did. 11 Q. Did you answer that call? 12 A. Initially, no. 13 Q. Do you know what you were doing? 14 A. I believe I was mowing my lawn. 15 Q. At some point later, did you notice that 16 Sergeant Pfarr had called you and you had missed the 17 call? 18 A. Yes. 19 Q. Does your phone tell you that stuff when you 20 pick it up? 21 A. Yes. 22 Q. Do you have a recollection now, as you go back 23 in your memory about that event, about what time 24 Sergeant Pfarr called you? 25 A. I want to say it was probably near Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1561 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 465 1 mid-afternoon. Probably close to 11: 00 or 11: 30. 2 Q. In the morning? 3 A. Yes. 4 Q. Okay. Did Sergeant Pfarr leave you a 5 voicemail? 6 A. He did. 7 Q. And did you pull up and listen to that 8 voicemail? 9 A. I did. 10 Q. Go back in your memory and tell us, with the 11 best memory you have, about what time you noticed 12 Sergeant -- what time was it when you noticed that 13 Sergeant Pfarr had called you and you'd missed the call, 14 how much time had transpired? 15 A. Maybe 30 minutes to an hour. 16 Q. So we're still in the morning or noon hour -- 17 A. Yeah. 18 Q. -- of October 19th? 19 A. Yeah. 20 Q. Okay. And you listened to Sergeant Pfarr's 21 voicemail? 22 A. I did. 23 Q. And, basically, what did he say? 24 A. He was calling, inquiring if Kevin's shift, CAT 25 shift, had been canceled or if he had talked to me about Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1562 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 466 1 it, something to that effect. 2 Q. Okay. Did you call him back? 3 A. I did. 4 Q. Did you do it, pretty much, immediately or did 5 some time go by? 6 A. No. After I heard the voicemail, I called him 7 back. 8 Q. And did you reach Sergeant Pfarr? 9 A. I did. 10 Q. What did you say and what did he say? 11 A. I told him I was sorry for missing his call, 12 something to that effect, and he said don't worry about 13 it, it's already been handled, Kevin came in and 14 explained to me, and went on to say how Kevin talked to 15 me the previous day about coming in late and that I had 16 approved it. 17 And during that conversation, I kind of stopped 18 Chad and said, Kevin never talked to me the previous day 19 about coming in late, we didn't have that 20 conversation. 21 Q. Okay. Let's go back and add some leaves to the 22 branches here. 23 A. Okay. 24 Q. So you called Sergeant Pfarr, he answers the 25 call? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1563 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 467 1 A. Yes. 2 Q. Take me from that point. You say, why did you 3 call? 4 A. Well, I knew why he called, about Kevin, and 5 Sergeant Pfarr initially indicated that he no longer, 6 kind of, really needed to talk to me, that, you know, 7 Kevin was there and Kevin had explained to him why -- 8 his reasoning for being late. 9 Q. Okay. And take it element by element. What 10 did Sergeant Pfarr tell you that Mr. Waddell said? 11 A. That he had a conversation with me the previous 12 day -- 13 Q. Stop right there. That would refer to what 14 day? 15 A. The 18th. 16 Q. Okay. Take it from there. 17 A. That he had spoken with me regarding coming in 18 late and something to the effect of his daughter had 19 some rehearsal or recital and asked if he could come in 20 late and that I had approved him coming in late for his 21 shift the following day. 22 Q. And you said what to that to Sergeant Pfarr? 23 A. That that conversation never took place. 24 Q. Did you ever give Mr. Waddell permission to 25 come in late at or around 11: 30 a.m. for the CAT shift Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1564 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 468 1 to which he was assigned on October 19th, 2013? 2 A. No, I did not. 3 Q. Okay. Was there any truth to you two having 4 any sort of conversation on October 18th? 5 A. No. 6 Q. Did you see each other? 7 A. I did see him, yes. 8 Q. Run that down for us. 9 A. As I was ending my shift, I went into the 10 locker room to change back into my civilian clothes -- 11 Q. About what time was that? 12 A. Based on my shift right now, probably was 13 11: 30. 14 Q. Okay. 15 A. Officer Waddell was sitting on the bench in 16 front of his locker, he was still in his street clothes 17 and he was text messaging at the time. I believe he 18 said hi to me or we said hi, but he was actively engaged 19 in text messaging. I started changing. And during the 20 time while I was changing, at some point, he ended up 21 making a phone call and he was on the phone until I left 22 the locker room. 23 Q. Okay. So the sum and substance of any 24 conversation, if you can even call it a conversation, 25 with Mr. Waddell on October 18th was what, again? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1565 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 469 1 A. A greeting. 2 Q. Hi? 3 A. Yes. 4 Q. Would some call that exchanging pleasantries? 5 A. Sure. 6 Q. No more details to the conversation? 7 A. No. 8 Q. Was that the only time you saw Mr. Waddell on 9 October 18th, 2013? 10 A. Yes. 11 Q. Did you have any other -- I'll do it this way. 12 Did you have any other in-person verbal contact 13 with Mr. Waddell at any of the 24-hour period of time on 14 October 18th, 2013, other than the exchange and 15 pleasantries at around 3:30? 16 A. No. 17 Q. Did you have any other form of communication 18 with Mr. Waddell on October 18th, text, e-mail, carrier 19 pigeon, anything? 20 A. No. 21 Q. During your -- if we can call it a conversation 22 with Mr. Waddell on October 18th, 2013, did Mr. Waddell 23 bring up the next day's CAT shift? 24 A. No. 25 Q. Did he ask for permission to come in late for Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1566 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 470 1 that shift? 2 A. No. 3 Q. Did he mention anything about his daughter's 4 dance recital or dance practice? 5 A. No. 6 Q. Did that come up, at all? 7 A. No. 8 Q. After you told Sergeant Pfarr that you never 9 had that conversation with Mr. Waddell on the phone with 10 Sergeant Pfarr, what was his reaction? 11 A. He was upset. 12 Q. Did he tell you why? 13 A. Because Kevin lied to him. 14 Q. During that conversation with Sergeant Pfarr, 15 did you discuss what potential next steps were in play? 16 A. Yeah. We talked about it and I just said, you 17 know, I wanted him to ensure it wasn't a 18 misunderstanding. I told him to, you know, ensure, you 19 know, his conversation with him was bad information and 20 that I trusted him to handle it appropriately. I didn't 21 know if he needed to further talk with Kevin for 22 clarification because we hadn't talked about the 23 specifics on how he lied to him or how the lie occurred. 24 He just said he had lied to him and Chad said he was 25 going to think about it and try to determine how he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1567 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 471 1 wanted to address it at that time. 2 Q. Let me close that loop before we move on. 3 Did you have another conversation with Sergeant 4 Pfarr that same day, October 19th, where you followed up 5 on that conversation? 6 A. We did. 7 Q. And do you remember when in time -- the timing 8 of the events that that occurred? 9 A. It was shortly after the initial conversation 10 that we discussed it. He called me back and he said he 11 felt strongly that Kevin had just blatantly lied to him 12 regarding his reason for being late and that he was 13 going to complete a memo to me regarding the incident. 14 Q. Do you see the white notebook there? 15 A. Yes. 16 Q. That's my exhibit book. Can you turn to 17 Exhibit 9, please? 18 A. Yes. 19 Q. Do you recognize Exhibit 9? 20 A. Yes. 21 Q. How do you recognize it? 22 A. It's a memo that was completed by Sergeant 23 Pfarr, and it was given to me to go through the chain of 24 command. 25 Q. Okay. At some point -- let me go back. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1568 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 472 1 During your phone conversation with Sergeant 2 Pfarr on October 19th, 2013, did he mention anything to 3 you about the subject matter of a text conversation that 4 he had with Mr. Waddell? 5 A. I don't recall if he was specific about how he 6 had -- Kevin had provided the information prior to him 7 being late. 8 Q. Okay. At some point, did you see a series of 9 texts and text responses between Sergeant Pfarr and 10 Mr. Waddell? 11 A. Yes. 12 Q. And when in relation to this did you see that 13 text conversation? 14 A. I believe it was when I returned to work the 15 following week at some point. 16 Q. Do you think it, maybe, had something to do 17 with review of the October 19th memo from Sergeant 18 Pfarr? 19 A. More than likely, yes. 20 MS. CASTILLO: Objection. Calls for 21 speculation. 22 THE HEARING OFFICER: If you know. If you 23 don't know it, then don't guess. 24 BY MR. PALMER: 25 Q. Turn to Exhibit 10, please. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1569 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 473 1 MS. CASTILLO: Did we get a ruling? 2 THE HEARING OFFICER: What was the answer to 3 that question? 4 (Record read by the court reporter.) 5 THE HEARING OFFICER: It's stricken. 6 BY MR. PALMER: 7 Q. Are you at Exhibit 10? 8 A. Yes, sir. 9 Q. How do you recognize it? 10 A. It's the text that Sergeant Pfarr showed me. 11 Q. Is this the first time you've seen Exhibit 10? 12 A. No. 13 Q. At some time in this series of events, you saw 14 Exhibit 10? 15 A. Yes. 16 Q. Do you remember the exact circumstances under 17 which you first came to see it? 18 A. No. 19 Q. Was it pretty close in time to October 19th, 20 2013? 21 A. Yes. 22 Q. Okay. Did you review Exhibit 10? 23 A. I did. 24 Q. Let's do it together. 25 A. All right. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1570 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 474 1 Q. The first text message appears in a rounded 2 rectangle shaded box. 3 From your understanding of this exhibit, do you 4 know from whom that was? 5 A. Sergeant Pfarr. 6 Q. To whom? 7 A. Kevin Waddell. 8 Q. And the subject text of it is? 9 A. "Are you still coming to work today?" 10 MS. CASTILLO: I'm going to object. The 11 document speaks for itself. 12 THE HEARING OFFICER: It does, but we went 13 through it before with a little context. So I'll allow 14 a little leeway here. 15 BY MR. PALMER: 16 Q. And there's some discussion whether he has the 17 wrong or right Kevin? 18 A. Yes. 19 Q. And then there appears to be a response not in 20 a rectangular shaded box. From your understanding of 21 this exhibit, from whom did that come from? 22 A. Kevin. 23 Q. And it says, in essence, what? 24 A. That, yes, he's coming to work, sorry, and he 25 had worked it out ahead of time with Smith, which would Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1571 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 475 1 be me. 2 THE HEARING OFFICER: You're asking Lieutenant 3 Smith for his understanding of what it says? Because I 4 can read it for myself. 5 MR. PALMER: Yes, I'm asking for his 6 understanding. 7 THE HEARING OFFICER: All right. 8 BY MR. PALMER: 9 Q. And your understanding was what, again? 10 A. That he was coming in to work, he had worked it 11 out with me the previous day to come in late. 12 Q. Okay. Is that true? 13 A. No. 14 Q. And then the next text in the shaded box is 15 from you? 16 A. Sergeant Pfarr. 17 Q. And the response to that is from who? 18 A. Kevin. 19 Q. And it, basically, says what? 20 A. That he talked -- again, he talked with me 21 yesterday about coming in at 11: 30 and that I said, 22 fine, no problem. 23 Q. Okay. Now, let's break this down. 24 "I" would be referring to who, in your 25 interpretation of that text? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1572 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 476 1 A. Kevin. 2 Q. And "Smith" would be referring to who, in 3 interpretation of that text? 4 A. Me. 5 Q. "Yesterday" would be referring to what date? 6 A. The 18th. 7 Q. "He said," would be referring which pronoun? 8 Attaches to which person in that? 9 A. Myself. 10 Q. Said, fine, no problem? 11 A. Yes. 12 Q. Did you say, fine, no problem? 13 A. No. 14 Q. Did you use those three words in any format 15 with Mr. Waddell on October 18th? 16 A. No. 17 Q. Is that a true statement? 18 A. Yes. 19 Q. Is this text a true statement? 20 A. No. 21 Q. All right. October 19th, you didn't work. 22 When was your next workday? 23 A. Monday. So that would have been the 21st. 24 Q. And did Mr. Waddell come to your office that 25 Monday? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1573 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 477 1 A. He did. 2 Q. Did you invite him? 3 A. No. 4 Q. How did it occur? 5 A. He just showed up. 6 Q. On his own? 7 A. Yes. 8 Q. Were you sitting in your office? 9 A. I was. 10 THE HEARING OFFICER: I'm sorry. What date are 11 we talking about? 12 THE WITNESS: Monday, the 21st. 13 THE HEARING OFFICER: Okay. Go ahead. 14 BY MR. PALMER: 15 Q. And did he say something to you as he came in? 16 A. That he asked if he could talk to me, he wanted 17 to get something off his chest. 18 Q. Did you say something in response to that? 19 A. I told Kevin, before he talked to me, that 20 Officer Pfarr had submitted a memo regarding an incident 21 that occurred on Saturday, that it would be going 22 through the chain of command, and I encouraged him to 23 not talk to me, that anything he said to me at this time 24 would not be privileged, and that if this was an IA, any 25 information he shared with me could be revealed during Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1574 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 478 1 an investigation. 2 Q. Why did you go through that much detail with 3 him? 4 A. Because I respect officers' rights and privy to 5 POBAR and I wanted to make sure he understood right away 6 that a memo had already been completed and it was 7 concerning lying and lying is a serious allegation in 8 our department. So I was confident that it would be 9 looked into in some manner and I didn't want him to 10 share information that could be protected information 11 under his POBAR rights. 12 Q. Did he express that he understood what you were 13 saying? 14 A. He did. 15 Q. How did he do that? 16 A. He just said he understood and he still wanted 17 to talk to me and he was willing to accept any 18 consequences that came with it what happened on that 19 date in question. 20 Q. And what did he say following that? 21 A. He didn't give a lot of details. He just said 22 it was, basically, a misunderstanding. He was driving 23 to work and Sergeant Pfarr misunderstood his text 24 messages regarding a conversation he had with me. 25 Q. Is that the sum total of the stuff that he said Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1575 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 479 1 to you that day? 2 A. To my recollection, yeah. 3 Q. Mainly about the text messages? 4 A. Yes. 5 Q. Did he talk to you about his verbal interaction 6 with Sergeant Pfarr after the text messages? 7 A. No. 8 Q. Did you ask him any questions? 9 A. No. I didn't want to ask any questions, again, 10 based on, you know, what might proceed. 11 Q. Did you say anything to him, though? 12 A. The only thing I said, I said, Kevin, you know 13 that we had no conversation yesterday and that's a lie, 14 something to that effect, and he acknowledged that and 15 he said, yes, he knew. 16 Q. Were you interviewed by Lieutenant Bledsoe 17 regarding this case? 18 A. I was. 19 Q. On what date was your first interview? 20 A. November 19th, I believe. 21 Q. If you need some help, just tell me. 22 A. I need some help. 23 Q. Would you turn to Exhibit 13? 24 A. Yes. November 15. 25 Q. Does that refresh your memory? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1576 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 480 1 A. Yes, sir. 2 Q. So your first interview was when? 3 A. November 15th. 4 Q. And does this appear to be a transcript of that 5 interview? 6 A. It does. 7 Q. Had you been previously provided with this some 8 time ago? 9 A. I was. 10 Q. And did I encourage you to study it? 11 A. Yes, you did. 12 Q. Were you reinterviewed by Lieutenant Bledsoe? 13 A. I was. 14 Q. Do you remember when? 15 A. December 12. 16 Q. And have I provided you previously with a 17 transcript of that interview? 18 A. Yes, you did. 19 Q. Exhibit 15. 20 A. That is it. 21 Q. Does that appear to be the transcript of the 22 interview on December 12? 23 A. Yes. 24 Q. What time of day did that interview occur? 25 A. On December 12, it occurred at 16: 55 hours. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1577 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 481 1 Q. Started at 4:55 p.m.? 2 A. Yes. 3 Q. Do you remember how long it lasted? 4 A. No. 5 Q. Was it a pretty short interview or a long 6 interview? 7 A. It was a fairly short interview. 8 Q. The transcript is only how many pages? 9 A. Two, three. Two. 10 Q. There's no -- is there a time stamp at the end 11 of the interview that Lieutenant Bledsoe provided, 12 according to the transcript? 13 A. There is -- there's a stamp on here, but it 14 doesn't -- I don't see the time. It just has the date. 15 Q. What was the subject matter of this interview, 16 the prime subject matter of this interview? 17 A. E-mail. 18 Q. And the other subject matter? 19 A. Me deleting the e-mail. I'm not sure. 20 Q. Did Lieutenant Bledsoe ask you questions in 21 this interview about how strict you were on the shift 22 time? 23 A. Yes. 24 Q. Okay. And what did you say in regards to that? 25 A. That I'd sent out an e-mail with my Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1578 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 482 1 expectations and the shifts were 11: 00 to 4:00, from 2 11: 00 to 4:00, and that I was pretty firm on those 3 times. 4 Q. If Mr. Waddell had stated to somebody involved 5 in this case that he had worked out previous shift 6 adjustments with Lieutenant Smith, you, and that's why 7 he figured it was okay to come in late without your 8 specific approval on October 19th, 2013, would that be 9 something that sounds right to you? 10 MS. CASTILLO: Objection. Calls for 11 speculation, lack of foundation. 12 THE HEARING OFFICER: Yeah. I understand. I'm 13 going to allow it in this case because it goes to the 14 heart of what this is all about. So you can answer 15 that. 16 THE WITNESS: No. 17 BY MR. PALMER: 18 Q. Why doesn't it sound right to you? 19 A. Because I would never give an officer a blanket 20 statement that they can come and go whenever they needed 21 to. 22 MS. CASTILLO: Objection. Non-responsive. 23 THE HEARING OFFICER: What was the question, 24 again? 25 (Record read by the court reporter.) Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1579 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 483 1 THE WITNESS: Do you want me to elaborate? 2 THE HEARING OFFICER: I think you need to be 3 more specific, yes. 4 THE WITNESS: If an officer came to me and they 5 had a conflict with -- we'll be specific on a CAT shift, 6 where they needed to come in a couple shifts late or 7 could they adjustment a couple shifts, two or three, I 8 would, likely, be flexible as long as it was reasonable, 9 like we talked about earlier. 10 Would I give an officer a blanket statement 11 during any shifts, whether it be CAT or patrol, that 12 they can come and go at any time and at their own 13 arrangements, no, I would never do that. 14 And there's no officer that would ever, I 15 think, assume that there's an expectation of when their 16 shifts start and end, and that's why it's always been 17 that they make arrangements with either a sergeant or a 18 lieutenant prior to needing special arrangements or a 19 shift adjustment. 20 BY MR. PALMER: 21 Q. If Mr. Waddell had said to somebody else 22 involved in this case that he did not have permission to 23 come in late on October 19th, 2013, would that be the 24 truth or a lie? 25 A. The truth. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1580 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 484 1 Q. If Mr. Waddell had said to somebody involved in 2 this investigation that since you had given him 3 permission before, he thought it would be okay to come 4 in a little bit late on October 19th, 2013, does that 5 sound right to you? 6 MS. CASTILLO: Objection. Calls for 7 speculation, lack of foundation. 8 THE HEARING OFFICER: Overruled. You can 9 answer. 10 THE WITNESS: Can you repeat the question 11 again? 12 MR. PALMER: Sure. Actually, if I did, it 13 would be a different question. So can we have it read 14 back? 15 (Record read by the court reporter.) 16 THE WITNESS: I would never approve that. So 17 if that's an assumption he made, it's his assumption. 18 It's hard to ask what he assumed, but I would never have 19 given Officer Waddell or any other officer blanket 20 permission to show up for any shift whenever they felt 21 they needed to. 22 MS. CASTILLO: Objection. Non-responsive. 23 Move to strike. 24 THE HEARING OFFICER: Well, the question was 25 did that sound right to you. I take it, the answer's Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1581 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 485 1 no, and you gave the reason why; is that correct? 2 THE WITNESS: Yes, sir. 3 THE HEARING OFFICER: Okay. 4 BY MR. PALMER: 5 Q. Let's change gears a little bit again. 6 At some point, did Sergeant Pfarr come to you 7 and discuss a concern he had with Mr. Waddell's behavior 8 at a traffic accident? 9 A. Yes. 10 Q. Before you get into the details of that, can 11 you give us timing on that? 12 A. It was well after it occurred. It wasn't as 13 the incident occurred. I think it was late 2013. I 14 don't have an exact date that he came, but I know he had 15 spoken with another lieutenant regarding this and this 16 lieutenant. 17 Q. Before you? 18 A. Before me and asked if he had brought it to his 19 watch commander's -- you know, told his watch commander, 20 which was me at the time, and he said he hadn't. 21 Q. Okay. Let's stop there. To which lieutenant 22 did he go first? 23 A. Lieutenant Bledsoe. 24 Q. And Lieutenant Bledsoe told him to do 25 something? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1582 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 486 1 A. That he should have brought it to his watch 2 commander's attention, which is me. 3 Q. So did he come to you? 4 A. Yes. 5 Q. And just in summary form, what did Sergeant 6 Pfarr tell you about that? 7 A. He apologized, said he probably should have 8 brought this to my attention earlier, but he had asked 9 if I recalled the traffic collision with the Bentley 10 that overturned, and I said, yes, I remember because he 11 had called me that evening, just wanting some advice on 12 if it was a fatal and calling out the traffic team. So 13 that's all we discussed that evening. 14 He let me know that, as he arrived at the 15 incident, there had -- something had occurred with Kevin 16 Waddell where Kevin was seen walking with a hubcap to 17 the Bentley and it appeared as if he was going to put it 18 in his patrol car. And, at some point, Chad confronted 19 him about it, and to the gist of it, Kevin laughed and 20 said he was just kidding, or something like that. 21 At the time, Sergeant Pfarr, being a new 22 sergeant, felt Kevin Waddell was messing with him or 23 joking with him and had counseled him and left it at 24 that and felt nothing needed to be done. 25 Q. Then what changed over time to cause Sergeant Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1583 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 487 1 Pfarr to come to Lieutenant Bledsoe and, ultimately, you 2 later in 2014? 3 THE HEARING OFFICER: If you know. 4 BY MR. PALMER: 5 Q. Did he explain that to you? 6 A. Well, it's been the recurring with the being in 7 the office, coming in, going late, Sergeant Pfarr began 8 to have some concerns -- I believe, some integrity 9 concerns is what he had brought to Lieutenant Bledsoe, 10 and then reflected back on that incident and started 11 wondering maybe Kevin wasn't joking and that he was 12 actually going to take the hubcaps. So it brought up 13 some concerns later based on some of the things he had 14 dealt with with Officer Waddell. 15 Q. Was part of the impetus that Sergeant Pfarr 16 explained to you to come to you so late based upon any 17 sort of open positions the department was flying? 18 A. Yes. At the time, I believe Kevin was putting 19 in for a detective position. 20 Q. Did Sergeant Pfarr explain to you how that 21 gelled, in his mind? 22 A. I think he was just concerned on Kevin's, 23 again, commitment and some integrity issues of him 24 showing up and leaving whenever and then totality of 25 circumstances just brought some concerns and Sergeant Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1584 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 488 1 Pfarr wanted to share those concerns with Lieutenant 2 Bledsoe, who, at the time, or -- who, currently, is the 3 investigative lieutenant as they proceeded with the 4 process. 5 Q. And what did you do with that information? 6 Anything? 7 A. I just kind of questioned him and I just said, 8 you know, are you confident or do you feel like it was a 9 joke, and he still, at the time, felt like it was. I 10 asked him if he felt he addressed it and handled it and 11 expressed his concerns with Officer Waddell and he said 12 he felt he had. 13 So, at that point, I was comfortable with what 14 Sergeant Pfarr had shared with me and how he'd addressed 15 it based on those circumstances. 16 MR. PALMER: Okay. Nothing further. 17 THE HEARING OFFICER: Do you need a minute for 18 cross or are you ready? 19 MS. CASTILLO: I'm ready. 20 THE HEARING OFFICER: All right. So 21 cross-examination. 22 MS. CASTILLO: Thanks. 23 /// 24 /// 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1585 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 489 1 CROSS-EXAMINATION 2 BY MS. CASTILLO: 3 Q. Good morning. 4 A. Good morning. 5 Q. Okay. So you have been at the San Luis Obispo 6 Police Department for 13 years? 7 A. Almost 13 years. 8 Q. For the last five years, you've been a 9 lieutenant? 10 A. Yes, ma' am. 11 Q. And what were -- what -- aside from being a 12 watch commander and aside from the CAT shift, what other 13 assignments have you held of lieutenant other than those 14 two? 15 A. I was the investigative lieutenant. 16 Q. And what does that mean? 17 A. I supervised all the detectives, the SRO and 18 the SORT team at the time, which is now the SET team, 19 and then there's also two FST positions that are under 20 me, as the investigative lieutenant. 21 THE HEARING OFFICER: Two what kind of 22 positions? 23 THE WITNESS: They're called field service 24 technicians. 25 THE HEARING OFFICER: FST? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1586 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 490 1 THE WITNESS: FST. 2 THE HEARING OFFICER: Okay. 3 BY MS. CASTILLO: 4 Q. What period of time were you being 5 investigative lieutenant for? When did you hold that 6 assignment? 7 A. It's been about three years. So probably 8 starting in 2011, I believe. I don't have the exact 9 date. 10 Q. Okay. 2011 to, approximately... 11 A. 2013. 12 Q. When did you leave the position of 13 investigative lieutenant? 14 A. I don't remember the exact date. It was 15 sometime in that time period. I'd have to go back and 16 refer to my exact time period I was back. 17 Q. Do you know what month? 18 A. I would have started back in patrol in, I 19 believe, January, typically. So it was after Lieutenant 20 Proll -- or I'm sorry -- Lieutenant Bledsoe promoted, he 21 filled my position and then I went back to patrol. I'm 22 assuming it was January. I'm not positive, though. 23 Q. Was it right around the time Sergeant Pfarr 24 promoted? 25 A. Yes. Because Sergeant Pfarr and Lieutenant Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1587 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 491 1 Bledsoe promoted at the same time. 2 Q. Was Pfarr ever -- did he ever work in the 3 capacity as a detective under your supervision? 4 A. Yes. 5 Q. And for how long? 6 A. Maybe a little bit over a year. At least a 7 year. 8 Q. Pretty good detective? 9 A. Yeah. 10 Q. And when you were a lieutenant prior to that, 11 were you a sergeant? 12 A. I was. 13 Q. And what things did you have there? 14 A. Patrol sergeant and I also worked as a SORT 15 sergeant. 16 Q. And did sergeant -- then he would have been 17 Officer Pfarr, correct? 18 A. Yes. 19 Q. And did he work under your supervision? 20 A. He did. 21 Q. In what capacity? 22 A. He was on the SORT team when I was the 23 sergeant. 24 Q. And what about officer Waddell? Have you ever 25 directly supervised Officer Waddell? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1588 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 492 1 A. Um, yeah. 2 Q. Other than CAT. 3 A. Yeah. When I was a sergeant, I'm sure he 4 worked under me. I don't remember, specifically, when, 5 but at some time or another, I know he's been on my 6 shifts. 7 Q. So when you were patrol sergeant, you know 8 Officer Pfarr worked under you, you believe that, maybe, 9 Officer Waddell did? 10 A. Officer Waddell was on the bikes. I don't 11 remember when he started the bikes, but, again, he would 12 have been under that specific sergeant, but, again, if 13 that sergeant's not there and I'm the supervising 14 sergeant, he would have worked under me. 15 Q. So is this what we're talking about, this 16 functional supervision again? 17 A. No. It's just we always have a supervisor on 18 duty and, at times, someone takes vacation or I'm sick. 19 So whoever is the on-duty supervisor is responsible for 20 the shift, and that includes the officers who worked 21 that shift. 22 Q. Okay. So when Pfarr was underneath you, did 23 you write his evaluations? 24 A. He was only underneath me for a couple of 25 months because he was promoted to detectives. So I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1589 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 493 1 don't believe I did any evaluation for him while he was 2 on the SORT team. 3 Q. Okay. But then when you were a lieutenant, did 4 you write his evaluations when he was the sergeant 5 underneath you and the detective? 6 A. I believe I would have written one when he was 7 on -- my first year there was his last year there. So I 8 probably completed one evaluation on him. 9 Q. And what about evaluations on Officer Waddell? 10 Did you ever complete any evaluations for Officer 11 Waddell? 12 A. I don't recall. 13 Q. Did you do Officer Waddell's background 14 investigation when he was hired by San Luis Obispo P.D. 15 from Santa Maria P.D.? 16 A. I did. 17 Q. And then you said, prior to San Luis Obispo, 18 you came from Fontana? 19 A. Yes, ma' am. 20 Q. And you were there for two years? 21 A. Just under two years. 22 Q. And so you made it off probation and left? 23 A. I did. 24 Q. So in 2013, you were the day shift watch 25 commander? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1590 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 494 1 A. Yes, ma' am. 2 Q. Okay. And when was -- when is, typically, day 3 shift during that time period? What are the shift 4 hours? 5 A. 7:00 to 7:00. 6 Q. Okay. So -- and then if people were going to 7 work the CAT shift, obviously, that would fall within 8 that time period, correct? 9 A. Yes. 10 Q. Okay. And the CAT shift is, generally, during 11 the week or on the weekend? When was this CAT shift -- 12 let's talk about 2012. When was CAT shift first -- 13 A. I don't -- I don't recall the dates. Again, it 14 was very sporadic. 15 Q. Okay. Is it, primarily, a weekday overtime 16 shift or weekend shift or is it just an everyday, seven 17 days a week shift? 18 A. I don't recall in 2012. Like I said, it was 19 very sporadic at the time. 20 Q. Okay. And so your testimony is that this was 21 something that the council wanted and the citizens of 22 San Luis Obispo wanted, and based on the time period of 23 11: 00 to 4:00, that's when the most people were out, 24 having lunch, et cetera, correct? 25 A. Are you talking about 2012 now, or can you be Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1591 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 495 1 more specific and narrow it down to me? 2 THE HEARING OFFICER: Fair enough. 3 THE WITNESS: Because we're talking about two 4 different time periods of when we enacted that and when 5 we started that. So I can't answer the question like 6 that. 7 BY MS. CASTILLO: 8 Q. Has the 11: 00 to 4:00 block changed from 2012 9 to today? 10 A. Yes. 11 Q. Okay. What are the new hours? 12 A. They work from 7:00 to 5:00. 13 Q. 7:00 a.m. to 5:00 p.m., right? 14 A. Yes. 15 Q. And when did that change happen? 16 A. When we formed the CAT team. 17 Q. The actual team where you selected officers? 18 A. Yes, ma' am. 19 Q. And this is where the people who wanted to be 20 on the scene had to submit interest memos? 21 A. Yes. 22 Q. Okay. So when it became an actual assignment 23 that was coveted and people wanted it, right? 24 A. Well, when it became an actual assignment is 25 when we solidified the dates -- or the times. I'm Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1592 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 496 1 sorry. 2 Q. Okay. But this is an assignment that requires 3 an interest memo in order to be considered? 4 A. Yes. 5 Q. Okay. And so, but, originally, you are saying 6 that, in 2013, it was this 11: 00 to 4:00 time period, 7 correct? 8 A. Yes. 9 Q. Okay. And do you know, as the CAT supervisor, 10 what was the -- what was your word -- impetus as to why 11 it went from 11: 00 to 4:00 to 7:00 to 5:00? 12 A. With our officers, and I don't want to quote 13 them or you, but we have specific time periods where, 14 generally, our officers work a 12-hour shift. When we 15 formed the team and we created the working agreement, we 16 decided we were going to have four 10-hour shifts as 17 part of the formation of that team so we could have 18 the -- I believe, the greatest amount of coverage in the 19 downtown area. 20 Q. Okay. So it blossomed from this 11: 00 to 4:00 21 block into an actual 12-hour shift? 22 A. No. 10-hour shift. 23 Q. I'm sorry. 10-hour shift. 24 THE HEARING OFFICER: And that's 7:00 a.m. to 25 5:00 p.m.? Is that what you said? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1593 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 497 1 THE WITNESS: Yes, sir. 2 THE HEARING OFFICER: Okay. 3 BY MS. CASTILLO: 4 Q. So now it covers breakfast, lunch and dinner as 5 opposed to just lunchtime, right? 6 A. It depends on when you eat dinner. It covers a 7 10-hour shift, which is how the team was formulated. 8 Q. Right. And the concept behind this is to make 9 sure that there's no transients and et cetera, et cetera 10 during the time when the public is out, right? 11 A. Yeah. And one of the reasons for the morning 12 time is, also, that they're working in transient camps. 13 So rolling in in the morning, they're able to address 14 some of our open space areas where transients are known 15 to loiter and sleep, which is one of the major problems 16 in our city. So incorporating the morning was vital to 17 the formation and the goals of the CAT team. 18 Q. And do you know, again, when the morning was 19 incorporated? 20 A. When we established -- you know, formally 21 established the expectations for the CAT team, I don't 22 know, exactly, when. 23 Q. Well, your testimony on direct earlier was 24 approximately June of 2013, that's when selection 25 evolved, or is that incorrect? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1594 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 498 1 A. I believe that's when the CAT team was 2 selected. I don't know the exact date, but I believe 3 that's when they were selected. 4 Q. Are you saying selected as in they became on a 5 static assignment? 6 A. No. When I say selected, it's when we have the 7 oral -- they submitted memos, completed the oral 8 interviews and the two were chosen for the team. 9 Q. Are you talking about 2014 or 2013? 10 MR. PALMER: Objection. That misstates the 11 evidence. 2013 came out of your mouth, not his. 12 THE HEARING OFFICER: Well, I would appreciate 13 some clarification because there were folks still 14 signing up for the CAT shift in 2013. So I'm not clear 15 where it changed. 16 THE WITNESS: I don't know the exact date. I 17 forget when they were selected. Again, I would have to 18 refer to our records of when Officer Berrins and Officer 19 Fellows were formally assigned. So it might have 20 been -- if I said June 2013, I misspoke earlier and it 21 would have been June 24th. 22 THE HEARING OFFICER: So there are two officers 23 that this is, basically, their permanent assignment? 24 THE WITNESS: Yes, sir. 25 THE HEARING OFFICER: And who are they, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1595 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 499 1 again? 2 THE WITNESS: Officer Fellows and Officer 3 Berrins. 4 THE HEARING OFFICER: Okay. So I'm going to 5 let you get back to whatever -- where you're going. 6 BY MS. CASTILLO: 7 Q. So it would be accurate to say that in October 8 of 2013, people were still signing up? 9 A. Yes. 10 Q. There was no Officer Fellows and Officer 11 something with a B assigned, right? 12 A. Again, I'm not sure their exact dates. So, 13 again, if we can clarify that or look back in our 14 records, and if you're looking for an exact, we can do 15 that. I don't have the exact date they were selected. 16 THE HEARING OFFICER: Well, I don't want to 17 belabor this point, but just to clarify it, if Officer 18 Waddell was still signing up as late as October of 2013 19 for the CAT shift, then this program that you're talking 20 about of 7:00 a.m. to 5:00 p.m., that shift hadn't 21 started yet? 22 THE WITNESS: Well, we've still done some. At 23 times, we've flown shifts where they weren't working or 24 if we didn't have officers. So there's been a couple 25 times we've flown similar shifts for officers to be Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1596 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 500 1 downtown. 2 In fact, right now, during this rotation, we 3 have officers working the weekends, some of the weekend 4 dates that the CAT team is not working, so we have that 5 presence downtown. 6 THE HEARING OFFICER: Oh, I see. 7 THE WITNESS: So even if it's not formally the 8 CAT team, we still call them CAT foot patrols because 9 they're similar to the early conception of the team of 10 we just want to have the presence downtown and they're 11 addressing, again, some of our ongoing problems. 12 Like this rotation, I believe, every Saturday 13 and maybe some Sundays, we have CAT foot patrol shifts 14 in the downtown area. 15 THE HEARING OFFICER: All right. Ms. Castillo, 16 I'll let you take that up. 17 BY MS. CASTILLO: 18 Q. Okay. So now what you're saying is, there are 19 people who are not on CAT, but then you did air quotes 20 and you said CAT, like, ancillary people that come in on 21 the weekends and are kind of CAT? They do the CAT 22 duties, they're not on the CAT team -- 23 A. They work downtown foot patrol. 24 Q. Let me finish my question -- and they do the 25 similar things in the similar place. Did those people Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1597 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 501 1 have to put in interest memos? 2 A. These are strictly overtime shifts. 3 Q. Right. My question was, did those people have 4 to put in interest memos? 5 A. Interest memos for what? 6 Q. To do the same jobs as the people who are 7 assigned to CAT full time. 8 A. No. 9 Q. Okay. And -- okay. So back to my earlier 10 question. I don't know if I got an answer to this. 11 In June -- or in 2013 and in -- we'll talk 12 about the later part of 2013, October, make it really 13 easy here. Is this mostly a weekday shift or weekend 14 shift or is this a Monday-through-Sunday thing? 15 A. No. I believe it was, primarily, the latter 16 part of the week. 17 Q. What does that mean? 18 A. Thursday through Saturday, later in the week. 19 I don't have -- I don't recall the exact dates that we 20 were flying the position. 21 Q. Okay. And you, as a lieutenant, were only 22 working weekdays, correct? 23 A. Correct. 24 Q. So if you were not around on the weekend to 25 supervise these people who were on this CAT overtime, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1598 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 502 1 they would be supervised by a regular watch commander, 2 not the CAT supervisor, you, Lieutenant Smith, right? 3 A. They would be supervised by a sergeant if I'm 4 not there. 5 Q. Whoever was the watch commander, right? 6 A. Yes. 7 Q. Okay. She's typing you down. 8 A. Yes. 9 Q. Are there more than one sergeants on duty on 10 the weekends? 11 A. Well, we have day and night sergeants. So yes. 12 Q. Okay. So if, hypothetically, on a weekend, you 13 are working CAT and it's 11: 00 to 4:00, there's only one 14 sergeant and that would be the watch commander, so that 15 person would also be the person who was supervising CAT 16 that day, correct? 17 A. Correct. 18 Q. Okay. And do you have any information as to 19 why the later part of the weekend was more important to 20 where these transients were? Or, I mean, what was the 21 later part of the weekend? 22 A. I can't answer that. That was a discussion 23 between the captain and chief on the days they chose to 24 have people on it. 25 Q. And when you say the discussion between the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1599 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 503 1 captain and the chief, I think you said that earlier, 2 too, are we talking about this captain who is sitting 3 here, Captain Staley? 4 A. Yes. 5 Q. Okay. Did Captain Storton have any influence 6 in terms of those decisions, to your knowledge? 7 A. To my knowledge, I don't know. I don't know. 8 Q. Okay. And, at that time, Captain Storton was 9 the administrative captain and Captain Staley was in 10 charge of what? 11 A. Patrol. 12 Q. Like, patrol operations or just patrol people? 13 What? 14 A. Operations of the patrol. 15 Q. Okay. So then during your direct examination, 16 you testified that, in April of 2013, or thereabouts, 17 you started doing something where you were posting a 18 list. Do you remember that line of questioning? 19 A. Uh-huh. 20 Q. Okay. And -- 21 THE HEARING OFFICER: Remember, you have to say 22 yes or no. 23 THE WITNESS: I'm sorry. Yes. 24 THE HEARING OFFICER: "Uh-huh" doesn't 25 translate too well on the transcript. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1600 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 504 1 BY MS. CASTILLO: 2 Q. And this list was, what, a Word document 3 template that you would print and then post and let 4 people sign their names on? 5 A. Yes. 6 Q. Okay. And so as you did this, did you, 7 physically, type in the new dates or were those dates 8 handwritten in? Tell us about this list and what it 9 looks like, since we don't have a copy. 10 A. It was just a list of when the overtime was. 11 It listed the hours of the work. Depending on which 12 list I posted, sometimes it said I was looking for one 13 or two officers for each of the days, and then, below 14 it, it would have the date, like Sunday, or whatever, 15 and then the months. So if it was April, like April 16, 16 4/16, 5/17, whatever, next to it and then a line for the 17 officers to sign up. 18 Q. Okay. And so, now, the -- well, let's start 19 with -- okay. So it listed the hours? 20 A. Yes. 21 Q. Were these hours always going to say 11: 00 to 22 4:00? 23 A. 11: 00 to 16: 00. 24 Q. Okay. Do they always say 11: 00 to 16: 00? 25 A. On the list, it did, yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1601 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 505 1 Q. So can you -- can I have a piece of paper? 2 Let's draw a list. 3 THE HEARING OFFICER: Off the record while 4 we're searching for paper. 5 (Pause in proceedings.) 6 THE HEARING OFFICER: So we're marking, as 7 Appellant's F, a document that's starting off as a blank 8 piece of paper and, I guess, it's going to get marked 9 up. 10 BY MS. CASTILLO: 11 Q. Can you draw us a list, please? 12 A. A list of what? 13 Q. Your template list. Tell us what a list in 14 2013 looked like. I want to see the times and how you 15 would make a list that you would post for officers to 16 sign up for. 17 A. Well, I would create it on a computer, not 18 handwritten. 19 Q. I know, but we're pretending that you're doing 20 a Word document and then I'll have you delineate which 21 is type-written and where the handwritten, but we 22 understand that, right now, you are not a Microsoft Word 23 Processor. So this will be a handwritten replication of 24 a Word document, or whatever you used. 25 A. Okay. Can we, at least, agree it's not going Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1602 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 506 1 to be an exact replica, I'm going off of memory from 2 back from 2013, that it's just, general, how I would 3 write it? 4 THE HEARING OFFICER: Yes. Do your best. 5 MS. CASTILLO: While you're doing that, I'll 6 ask you questions. Can you multitask? 7 THE WITNESS: I'll do my best. So, basically, 8 it would say CAT overtime. I had a paragraph here. I 9 don't remember exactly what it stated, but, at some 10 point, it would list the hours from 11: 00 to 16: 00. 11 THE HEARING OFFICER: So I'm just going to note 12 for the record that it says CAT overtime as a heading at 13 the top of the page and then the witness is indicating 14 that there's some text in a paragraph below the heading 15 where it has the hours you just testified to. Go ahead. 16 THE WITNESS: Yes. And any expectation -- and, 17 typically, the only thing that differed in any of those 18 were the numbers of officers that would be working per 19 shift. And then, on the side, I'd put -- like, say it 20 was a Sunday, and we'll just use 4/17 for example, have 21 a little dot, and then I'd create a line -- 22 THE HEARING OFFICER: To the right? 23 THE WITNESS: Yeah. A blank line for officers 24 to sign up and then it would just continue on same all 25 the way down with lines for officers to sign up across Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1603 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 507 1 like this. 2 BY MS. CASTILLO: 3 Q. And can you show us where you -- so at the top, 4 you wrote three lines and you have a bunch more lines. 5 Is it your testimony that these three lines 6 represent actual text, but you don't remember what that 7 is, you just remember that there was, somewhere in this 8 text, hours? 9 A. Typically, again, in most of my documents, I'd 10 put the hours that they'd be working so the officers 11 would know what they were signing up for. 12 Q. And does it also describe what you talked about 13 earlier with the duties? 14 A. More likely not. That, usually, was in the 15 e-mail I'd send out afterwards. 16 Q. So other than what you -- well, strike that. 17 You recall the hours. Do you recall anything 18 else about what these three lines that you just wrote 19 that represent text -- 20 A. The main thing that was important in there was 21 whether or not I was looking for one or two officers per 22 shift because sometimes officers would be under the 23 assumption that if they signed up, that they were going 24 to get it -- you know, it was automatic. So I believe 25 that I would say I'm looking for one or two officers Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1604 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 508 1 per -- and it was usually, generally, consistent for the 2 time I was posting it. 3 Q. Okay. So did you write next to every date -- 4 and you've given an example of Sunday, 4/13. Would you 5 write next to that two officers? 6 A. No. 7 Q. One officer? 8 A. No. 9 Q. Where -- how -- 10 A. That's why I was explaining up there -- 11 Q. Let me ask you the question. 12 If I am Officer Waddell and, say, Officer 13 Dickle, would I just now come up here and all of us sign 14 our names here and then you select later? 15 A. Yes. 16 Q. Okay. So there could be five people signed up 17 here? 18 A. There could be. 19 Q. There could be zero people signed up here? 20 A. Absolutely. 21 Q. There are times when no one signed up next to a 22 date, correct? 23 A. That is correct. 24 Q. Okay. And then your testimony is that as these 25 different templates come because you physically type in Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1605 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 509 1 the date and day, right? 2 A. Yes. 3 Q. Okay. So that would be a -- not handwritten-in 4 item, correct? 5 A. Correct. 6 Q. Okay. So this text above would say, during 7 this -- now we're saying two-week block period, right? 8 A. Two-week? 9 Q. Well, you said, originally, you did smaller and 10 then you did bigger, right? 11 A. They varied. So it was whatever my 12 conversation with the captain is. So I don't know. 13 Q. And, again, this is Captain Staley? 14 A. Yes. 15 Q. Okay. And then they would say, during this 16 time period, we are looking for one officer or two 17 officers or one or two officers? 18 A. Typically, how this happened is I would send 19 out an e-mail to P.D. officers that there's a sign-up 20 list on the bulletin board, I'm looking for officers to 21 work overtime for the CAT downtown foot patrol from 22 11: 00 to 16: 00 and during -- you know, please look at 23 the board for the dates that are listed. I would post 24 the sign up on the board with blank lines and ask 25 officers to sign up. And I don't recall all my e-mails, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1606 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 510 1 but somewhere in my e-mails, I would say the selection 2 would be based somewhere on seniority. 3 Q. Okay. And so you would say one to two officers 4 up here, but you would not specify one or two officers 5 on each -- like, each individual shift, right? 6 A. I don't understand your question. 7 Q. You wouldn't say, on Sunday, 4/13, I'm looking 8 for two officers, on Monday, 4/14, I'm looking for one 9 officer? 10 A. That's correct. 11 Q. Okay. So you knew that, in your head, that the 12 officers who signed up would all just sign up and you 13 would go seniority, right? 14 A. They knew because when I put out the e-mail, I 15 would tell them on the e-mail that I was looking for one 16 or two officers for each shift, and that was consistent 17 for the posting at that time. 18 So -- and I would say -- my decision will be 19 based on seniority in terms of who I would select. So, 20 again, when the original e-mail would go out not on this 21 list, but the e-mail, they would know how many officers 22 I was looking for for each shift, but as many officers 23 were allowed to sign up on this line and then they knew 24 I would base my selection of the officer to get the 25 shift on their seniority within our department. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1607 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 511 1 Q. Okay. I think that's going to the heart of my 2 question. 3 So there was always going to be a corresponding 4 e-mail with a posted bulletin board sign-up sheet? 5 A. There would be a preceding e-mail. 6 Q. Okay. And in the preceding e-mail, you would 7 say I'm looking for two officers on this shift, date, 8 I'm looking for one officer on this shift, date? 9 A. That's incorrect. 10 Q. So tell me what is correct because I'm still 11 confused. 12 A. I'm looking for one or two officers for this 13 sign-up period. 14 Q. Okay. So the officers -- it was only a mystery 15 to the officers how many you were going to assign per 16 day, it was not a mystery to you, right? 17 A. That's incorrect. 18 Q. Well, then, tell me what is correct. 19 A. They know that when I put this out, that when I 20 put up the sign-up list, depending on the time that I 21 set it up for, that it was either going to be one or 22 two. 23 So now when they sign up, if Kevin was the 24 first one to sign up on five shifts, he might not know 25 if three or four other officers are going to sign up and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1608 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 512 1 if they're going to be senior to him, but he did know 2 that I would only pick one or two for the shift because 3 that was specified in the e-mail that would precede this 4 sign-up. 5 Q. Right. I get all that. My question is, is it 6 only on the final sign-up list that you have determined 7 if it's going to be a two-officer shift that day or a 8 one-officer shift that day, or is that done in the 9 e-mail that is preceding the posted bulletin? 10 A. It really depends on how many officers sign up. 11 Like you said, it could only be one officer that signed 12 up or no officers that signed up. So if no officers 13 signed up, it will be zero officers on that shift, but 14 they know prior to me posting this list that if two 15 officers sign up, two officers get the shift. If one 16 officer signed up -- or I'm sorry. If four officers 17 signed up and I put out in the e-mail that I was only 18 going to take two, they knew it would only be two. They 19 don't know which two it would be because it's going to 20 be based on seniority. 21 Q. Okay. Now we're on the same page. Thank you 22 so much. 23 A. You're welcome. 24 Q. Tell me about this bulletin board. Where's it 25 located? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1609 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 513 1 A. Hallway on the second floor of our building. 2 Q. And is that the hallway that's close to the 3 locker room? 4 A. No. 5 Q. Where is that hallway? 6 A. It's on the main floor near where they write 7 reports and records. It's to the backsides of our 8 records. 9 Q. That's where this bulletin board was that you 10 posted this CAT list? 11 A. Yes. 12 Q. Okay. And then you've said that you would take 13 the list down because you would say the list date ends 14 on a certain posted date, correct? 15 A. Yes. 16 Q. Okay. So you would take the list and then you 17 would input it into SpeedShift, right? 18 A. Correct. 19 Q. And SpeedShift, again, is your scheduling 20 system? 21 A. Yes. 22 Q. And who has access to SpeedShift? 23 A. Um, lieutenants and sergeants. 24 Q. Only? 25 A. Yeah. Well, officers have access to it, but Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1610 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 514 1 they don't have the ability to make changes. 2 Q. Okay. But can they go in and see who is -- 3 A. Yeah. It's available to everybody that uses 4 it, which is everybody in our agency. 5 Q. Okay. I probably have to finish the question 6 first so the record is clear. Sorry. 7 So if I'm Officer Waddell or Officer Stahnke, I 8 can go and look at SpeedShift and see who my partner 9 will be for that CAT overtime, correct? 10 A. Correct. 11 Q. Okay. And, now, if no officers sign up, that 12 shift just doesn't exist that day, correct? 13 A. Correct. 14 Q. You don't call officers in for this -- this CAT 15 shift, right? 16 A. No. 17 Q. How soon before the actual date the officer's 18 going to work is your list that you've taken down on the 19 poster of the bulletin board inputted into SpeedShift? 20 A. It varies depending on when I listed the 21 come-down date. There was no -- it varied based on my 22 conversation with the captain and when we decided. So 23 there was no exact date, but it was prior to the shifts. 24 Q. Okay. Do you know why, on October 19th, 25 SpeedShift was blank in terms of who was working? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1611 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 515 1 A. I don't. 2 Q. Would you have been responsible for that? 3 A. Yes. 4 Q. Were you ever asked that question during the 5 course of the internal affairs investigation into 6 Officer Waddell's lateness on that date? 7 A. No. 8 Q. Did you ever volunteer any information 9 regarding that? 10 A. No. 11 Q. Did you ever do any investigation, yourself, 12 into why that would have been blank? 13 A. No. 14 Q. Did it ever occur to you to do that? 15 A. No. 16 Q. Now, this list that would have shown October 17 19th, this list, which is your replica representation, 18 that we've all agreed -- actually, can you -- since -- 19 can you write your -- next to Appellant's F, can you 20 write your name and ID number, please? 21 A. Sure. 22 Q. As the author. 23 MR. PALMER: I think it's artist, actually. 24 BY MS. CASTILLO: 25 Q. Thank you. Is this my pen? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1612 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 516 1 MR. PALMER: Uh-huh. 2 BY MS. CASTILLO: 3 Q. Gosh. Okay. So your testimony is that, 4 usually, you would take the list out and put it into 5 SpeedShift and then you would throw this hard copy with 6 all the officers' signatures away? 7 A. At some point, I would, yes. 8 Q. What do you mean at some point? Would it be 9 after you input it into SpeedShift? 10 A. It was typically after the time period elapsed 11 because I wanted to have the hard copy to refer to in 12 case there was any questions regarding shifts and things 13 like that, or something got changed or not. You know, 14 so I just had it -- kept it as a reference until the end 15 of that time period. 16 Q. Okay. So once the time period or the shift was 17 served, then the record with the signatures of all 18 people who were signing up was no longer needed and you 19 relied on what had been inputted into SpeedShift, 20 correct? 21 A. Correct. 22 Q. Okay. And so on October 19th, since SpeedShift 23 was blank as to who was working, was this list still 24 posted on the bulletin board? 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1613 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 517 1 Q. Where was it? 2 A. I don't know. 3 Q. Who takes down lists, besides yourself? 4 A. Nobody. 5 Q. Did you take down the list? 6 A. I assume I did. 7 Q. Were you ever asked if you took down the list? 8 A. Asked by who? 9 Q. Anyone who was investigating. 10 A. Not to my recollection. 11 Q. Did the captain ask you, Captain Staley? 12 A. No. 13 Q. Did you say, as I sit here and I'm being 14 investigated or interviewed on this issue, it occurs to 15 me to go look into that? 16 A. Me? 17 Q. Yes. 18 A. No. 19 Q. Do you know what happened to that hard copy 20 October 19th list? 21 A. More than likely, I threw it away. 22 Q. Do you know -- are you speculating as to 23 whether or not you threw it away before October 19th or 24 after? 25 A. I don't recall. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1614 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 518 1 Q. Okay. Have you ever seen the October 19th list 2 ever again? 3 A. No. 4 Q. Okay. Now, did you send out an e-mail 5 regarding who was assigned on October 19th? 6 A. Yes. 7 Q. Have you seen that e-mail recently? 8 A. No. 9 Q. When was the last time you saw that e-mail? 10 A. I assume just before I sent it. 11 Q. You don't remember when it would -- like, what 12 is -- how often -- or I'm sorry. 13 How far in advance do you give officers notice 14 that they've been assigned to these shifts? 15 A. Like I said, it varied. 16 Q. Could it be the day before? 17 A. I don't think so, but I don't recall. 18 MS. CASTILLO: Can we have, like, a five-minute 19 break at this point? 20 THE HEARING OFFICER: Why don't we take ten, 21 and then it will be 11: 00 then. 22 (Recess.) 23 THE HEARING OFFICER: Back on the record. 24 Continue with the cross-examination of Lieutenant Smith, 25 Ms. Castillo. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1615 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 519 1 MS. CASTILLO: Thank you. 2 BY MS. CASTILLO: 3 Q. Okay. I'm going to show you -- 4 THE HEARING OFFICER: Are we all done with F 5 for now? 6 MS. CASTILLO: Yes, but just leave it, for a 7 minute, available. I would like to have this marked as 8 Appellant's G. 9 THE HEARING OFFICER: Yep. 10 MS. CASTILLO: And I have copies. Will you 11 hand this to the hearing officer, please? 12 THE HEARING OFFICER: Okay. So we're going to 13 mark, as G, it looks like, a two-page document. It 14 looks like it's a copy of an e-mail from Jeffrey Smith 15 and it says -- begins by saying, "Thank you for helping 16 to fill the overtime." Do you have one for the witness, 17 too? 18 BY MS. CASTILLO: 19 Q. Yes. Can you take a minute to look at that? 20 While you're looking at this, for a point of 21 clarification -- 22 THE HEARING OFFICER: You have that document, 23 right? 24 THE WITNESS: Yes. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1616 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 520 1 BY MS. CASTILLO: 2 Q. -- you have not reviewed any e-mails regarding 3 CAT shifts prior to testifying today? 4 A. That's correct. 5 Q. Did you attempt to look for any e-mails related 6 to CAT shifts prior to testifying today, since the 7 internal affairs investigation closed? 8 A. No. 9 Q. Do you recognize this document, at all? 10 A. Looks like an e-mail I composed. 11 Q. Okay. And so you're Jeffrey Smith? 12 A. Yes, ma' am. 13 Q. And that's your jsmith@slocity.org e-mail? 14 A. Yes, it is. 15 Q. Okay. And when it says, Saturday, 5/ 4, on the 16 left-hand column, would this be a 2013 e-mail, if you 17 know? 18 A. I don't know. 19 Q. You don't know when this would be? 20 A. It doesn't state on here when it was. 21 THE HEARING OFFICER: Just to clarify for the 22 record, what we're not sure about is what the year is 23 here? We have dates, but no years; is that right? 24 THE WITNESS: I'm assuming it's a 2013. 25 Without seeing a date, I'm not positive that it is Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1617 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 521 1 because we had some dates in 2012 that we ran OT. 2 BY MS. CASTILLO: 3 Q. And we can look at a calendar and I can ask for 4 judicial notice of what Saturday or what year that would 5 have been. So I'm not asking you to guess. 6 A. Okay. 7 Q. Is this consistent with an e-mail that you 8 would have sent in terms of what individuals would be 9 assigned to a CAT shift after something like Appellant F 10 was created, posted, removed and entered into 11 SpeedShift? 12 A. It's consistent with what I would have sent 13 out, yes. 14 Q. Okay. And this part up in the original area, 15 Appellant's F, where you said there was text and hours, 16 is that what you were referring to in this four-line 17 block at the beginning of Appellant's G? 18 MR. PALMER: Objection. Misstates the 19 evidence. Appellant's G appears to be -- well, I don't 20 know what it is because it doesn't look like it usually 21 does when you print an e-mail, but accepting Appellant's 22 G as it is, this appears to be an e-mail that was sent, 23 purportedly, by Lieutenant Smith after he made 24 assignment decisions. Appellant's F is the sign-up 25 sheet. They're not the same document. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1618 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 522 1 MS. CASTILLO: I know what they are. 2 THE HEARING OFFICER: Perhaps we can have the 3 witness testify if there's a relationship between the 4 two. 5 THE WITNESS: They are two different 6 documents. 7 BY MS. CASTILLO: 8 Q. Right. I understand that, but you had 9 testified there was kind of a boilerplate block of texts 10 that would come out of Appellant's F, correct? 11 A. Uh-huh. 12 Q. Is this little paragraph on Appellant's G what 13 would be that boilerplate? 14 A. No. 15 Q. Okay. That's all I wanted to know. 16 MR. PALMER: That makes sense. 17 MS. CASTILLO: I can swear you in, too, if you 18 want me to. 19 MR. PALMER: Let's go. 20 THE HEARING OFFICER: Okay. I mean, I'm 21 hearing another case where counsel would have come to 22 blows over not being able to agree on that. So 23 congratulations. 24 MS. DIETRICK: Everything's relative. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1619 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 523 1 BY MS. CASTILLO: 2 Q. Okay. So since we're just looking at this as 3 an example, on Saturday, 5/ 4, no one signed up. Would 4 that be your interpretation of open, or do you have an 5 officer by the last name of Officer Open? 6 A. No. No one signed up. 7 MR. PALMER: That's, actually, pretty funny. 8 MS. CASTILLO: I thought that might be 9 legitimate. 10 MR. PALMER: I appreciate the humor. I don't 11 appreciate puns, though. 12 THE HEARING OFFICER: Duly noted. 13 BY MS. CASTILLO: 14 Q. 5/ 9, Officer Waddell, right? 15 A. Correct. 16 Q. Okay. So then when you were talking about how, 17 after the fact, you would determine if it was a 18 one-officer or a two-officer shift, do you remember we 19 just talked about all that? 20 A. Yes. 21 Q. So at the top here where there's this paragraph 22 and you say I made one mistake and forgot to specify the 23 overtime was for one officer per day. 24 A. Uh-huh. 25 Q. Do you see that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1620 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 524 1 A. Yes. 2 Q. So when you testified earlier that you would 3 specify one to two -- 4 A. Uh-huh. 5 Q. -- so that's the differences here, you should 6 have just said one, right, in this situation, right? Is 7 that what you're saying? 8 A. For that sign-up that I posted, I probably 9 forgot to put one or two officers. So, yeah, that's 10 what I was referring to, that it would have only been 11 one officer per shift. 12 Q. Okay. So if we're looking at this, and we can 13 check if this would have been consistent with the dates 14 in 2013, back in May of 2013, on this block of time, 15 which goes from the 4th of May to the 17th of May, 16 Officer Waddell, one, two, three, four shifts were 17 assigned to him, correct? 18 A. Correct. 19 Q. And that would have been because he was either 20 the senior officer or the only officer that put in for 21 this particular shift on those dates, correct? 22 A. Correct. 23 Q. Okay. Now, when we've established there's no 24 officer open and this is open, once this e-mail comes 25 out, do people then respond to you and say, I'm now Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1621 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 525 1 available on Saturday, 5/ 4, can I fill that spot? 2 A. Could they? Yes. Did it happen? No. 3 Q. Never happened? 4 A. Not to my recollection. I don't remember, but, 5 I mean, I put open on there so they were aware if it 6 did. I don't recall if any officers ever took them, but 7 I did put open because we were really trying to fill 8 them. 9 Q. In San Luis Obispo, is there just endless 10 overtime for officers -- I mean, endless overtime 11 opportunities for officers? 12 A. No. 13 Q. So is this one of the few areas an officer 14 could get overtime? 15 A. It's one. 16 Q. Okay. And then the second page of this 17 document where it has the signature block, is that 18 consistent, usually -- I mean, other than the image, 19 which would normally be the little logo for your city, 20 consistent with what your signature block looks like? 21 A. Yeah. 22 MS. CASTILLO: Okay. I would like to mark 23 this, now, as Appellant's H. 24 THE HEARING OFFICER: Okay. Thank you. 25 MR. PALMER: Thank you. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1622 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 526 1 THE HEARING OFFICER: H looks like it's also a 2 printout of an e-mail. I don't see a date at the top, 3 but the first line says Rodriguez, Sarah, Stahnke, 4 Autumn, and the subject line says fall downtown foot 5 patrol OT. 6 BY MS. CASTILLO: 7 Q. Okay. Do you need a minute? Oh. Here's your 8 copy. Sorry. 9 A. Thank you. Okay. 10 Q. Do you need any more time to review this? 11 A. No. 12 Q. Okay. Does looking at this e-mail refresh your 13 recollection as to the post sign-up list e-mail that you 14 sent out regarding the shift from September 14th to 15 November 29th of 2013? 16 A. So you're not referring to this e-mail, you're 17 referring to another e-mail? 18 Q. No. After Appellant's F would have gone up on 19 the board, right, for this time period, 9/14 through 20 10/ 29? 21 A. 10/ 29. Okay. 22 Q. Then you would have taken what would have been 23 on Appellant's F, entered it into SpeedShift, correct? 24 A. Uh-huh. 25 Q. You have to say yes or no. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1623 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 527 1 A. Yes. 2 Q. Then you would have taken this e-mail, right, 3 and then written the officers' names who had been 4 selected for these shifts and sent this out to those 5 particular officers, correct? 6 A. Correct. 7 Q. Okay. So at the top, because it's been cut 8 off, is Sarah Rodriguez one of your officers? 9 A. She's a former officer. 10 Q. Okay. What about Adam Stahnke? 11 A. He is. 12 Q. And where it says, on the CC line, Janice 13 Goodwin, is that a sergeant? 14 A. Yes. 15 Q. Chad Pfarr, is that a sergeant? 16 A. Yes. 17 Q. And then Fred Mickel, is that a sergeant? 18 A. Yes. 19 Q. Okay. So these three people, Goodwin, Pfarr 20 and Mickel, would these be the sergeants that would, 21 potentially, be the daytime watch commanders who would 22 oversee this CAT shift if you were not around? 23 A. Yes. 24 Q. Okay. So the CC line is the alternative 25 supervisors, correct? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1624 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 528 1 A. Yes. 2 Q. Okay. And then the subject, fall downtown foot 3 patrol OT, is this also the heading that you would also 4 use for the CAT assignments? 5 A. I may have said CAT before. 6 Q. Okay. So the subject line could actually 7 change from fall downtown foot patrol OT to CAT to, 8 maybe, spring downtown foot patrol OT, or whatever you 9 felt like putting in the subject line, correct? 10 A. Correct. 11 Q. Okay. Now, you've testified about a block of 12 text that goes around with e-mails. Do you remember 13 that? 14 A. Could you refresh my memory on what you're 15 testifying to? 16 Q. Sure. Now, do you see this big paragraph at 17 the top? 18 A. Uh-huh. Yes. 19 Q. Have you read this? 20 A. Yes. 21 Q. Does this look familiar? 22 A. Yes. 23 Q. Is that what you would put prior or in front of 24 the assignments of all of the officers when you made the 25 block scheduling assignments after they were entered Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1625 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 529 1 into SpeedShift? 2 MR. PALMER: Objection. Ambiguous, compound, 3 vague. 4 THE HEARING OFFICER: Do you understand the 5 question? 6 THE WITNESS: No. 7 THE HEARING OFFICER: Okay. Let's try that 8 again. And the record should reflect we're discussing 9 Appellant's H; is that correct? 10 MS. CASTILLO: Correct. 11 THE HEARING OFFICER: Okay. 12 BY MS. CASTILLO: 13 Q. Is this the standard boilerplate you would use 14 before you posted the schedule? 15 A. Posted the schedule? 16 Q. Well, e-mail this to people so they would know 17 when they had an overtime shift? 18 A. I don't know that I've used it every time. 19 Q. Could it vary? 20 A. It could. 21 Q. So some days, you might add a different area 22 than the Transient Center, City Hall, mission area and 23 library? 24 A. It could just vary. I don't know -- it, more 25 than likely, wouldn't change the locations because it Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1626 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 530 1 was a focus on downtown area. 2 Q. Okay. Would it change where it said shifts are 3 from 11: 00 to 16: 00 hours? 4 A. I believe that's the time we've used, except 5 for in 2012. 6 Q. Okay. Would it change where it said downtown 7 on foot? 8 A. Again, typically, they were all downtown foot 9 patrol assignments. 10 Q. Okay. Would it change where it said officers 11 working for each shift would be usually based on 12 seniority? 13 A. No. Because it was always based on seniority. 14 Q. And do you usually thank everyone who 15 volunteers for this because it is an optional 16 non-assigned, non-mandatory shift? 17 A. I would assume I do. 18 Q. Okay. It's the polite thing, right? 19 A. No. What I'm saying, I might not have even put 20 that. I might have just sent out an e-mail saying below 21 are the officers who are selected for the CAT overtime 22 shifts and I may not have included that on one of my 23 e-mails. 24 So I'm not saying this is boilerplate and this 25 is what I sent out every time, but, again, I assume I Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1627 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 531 1 sent it out more than once. 2 Q. Because, right, on Appellant's G, you didn't 3 write any of that, correct? 4 A. Correct. 5 Q. Okay. So then back to Appellant's H where you 6 write, "Please do not use these shifts to complete 7 reports or conduct follow-up from your regular patrol 8 shifts," that may or may not have been included on every 9 e-mail, is what we're saying, correct? 10 A. May not, correct. 11 Q. "And these are only five-hour shifts and the 12 majority of that time should be spent downtown on foot," 13 may or may not be included? 14 A. May or may not. 15 Q. When you say majority of the time should be 16 spent downtown on foot, what would the other minority, 17 possibly, be? 18 A. Getting ready for your shift, getting your 19 equipment together, coming back from your shift. Again, 20 if there was citations or a report taken, we allow some 21 time for those things to be completed. 22 Q. So you're saying the time on documents is 23 included? 24 A. Just getting the equipment they need for the 25 shift and getting down there, getting downtown and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1628 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 532 1 returning and doing paperwork. 2 Q. And, again, where did they check out the 3 equipment for their shift? 4 A. Right now, they get it from the briefing room. 5 Back then, I'm not sure if we had the same cabinets we 6 do now. 7 Q. You might have gotten new cabinets since 2013? 8 A. Or we might have just changed out our check-out 9 process. 10 Q. Is there an actual check-out process? 11 A. Currently, there is, yes. 12 Q. What does the current check-out process 13 involve? 14 A. We have orange boxes that has the equipment 15 they need. They can check those out in a book, like a 16 three-ring binder. 17 Q. How -- so when you're saying check out, is it 18 like a library where you go and you write your name and 19 the librarian says, yes, you can do this, or do you just 20 sign your name and take a box? What is it like? 21 A. Sign your name, take a box. 22 Q. Does the supervisor watch you do this? 23 A. Currently, they do because you need a 24 supervisor's key to get it out of the cabinet. Back 25 then, I don't know, and to be honest with you, depending Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1629 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 533 1 on the CAT officers, they might not even have checked 2 out a box because they're downtown on foot. These are 3 things kept in the patrol car. They have paz devices, 4 which are used for DUIs and camera. So depending on the 5 officer, they may have felt they may not have needed one 6 of these boxes and may not have checked one out prior to 7 the shift. 8 Q. So it's officer discretion as to decide whether 9 they need an orange equipment box specific for this CAT 10 shift? 11 A. It was never specified. 12 Q. Okay. Do any other assignments use these 13 orange boxes? 14 A. Patrol. 15 Q. Regular patrol? 16 A. Yes. 17 Q. Okay. So other than the getting ready and 18 getting your box, what other time, other than the time 19 spent downtown on foot, could the officers' acceptable 20 use -- I mean -- 21 A. I didn't have a list of what was acceptable or 22 not. My expectation was that they were spending the 23 majority of their time downtown on foot, enforcing the 24 violations in the locations that were mentioned in the 25 e-mail. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1630 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 534 1 Q. Are there violations mentioned -- 2 A. I'm sorry. Just -- 3 Q. -- in the e-mail? 4 A. No. 5 Q. So what violations are they supposed to be? 6 A. Again, dealing with transients issues, 7 trespassing, alcohol violations, things like that. 8 Q. Okay. And then as of, at least, 9/14, you were 9 tracking the stats of CAT officers. Could you explain 10 what that meant? 11 A. It was very simplistic. I was just asking them 12 to send me what information they were -- or what 13 violations they were writing downtown. 14 Q. Okay. So by tracking, you mean officers were 15 self-reporting to you, and what did you do? Put this in 16 a spreadsheet on the Excel? 17 A. No. 18 Q. What did you do with the information? 19 A. Just reviewed it on the e-mail. 20 Q. Okay. So by tracking, you mean you were 21 reading your e-mail? 22 A. If that's -- sure. 23 Q. Did you compile these statistics in any sort of 24 way? 25 A. I never compiled any statistics, no. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1631 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 535 1 Q. Have you reviewed the e-mails for these 2 statistics recently? 3 A. No. 4 Q. Okay. Is anyone else tracking the stats of CAT 5 officers? Was the Captain Staley tracking stats of CAT 6 officers? 7 A. I don't know. 8 Q. Were you forwarding him these self-reporting 9 statistics made by these officers? 10 A. No. 11 Q. Okay. Do you have any knowledge as to whether 12 or not they were forwarding these self-reporting 13 statistics? 14 A. No. 15 Q. And was there a deadline by which they had to 16 submit these self-reported statistics to you? 17 A. No. 18 Q. Were you tracking to see how productive they 19 were at any one time? 20 A. I was tracking because I wanted to know what 21 violations they were enforcing downtown or seeing 22 downtown. 23 Q. Okay. So it was more violation-specific than 24 productivity-specific? 25 A. Not necessarily. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1632 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 536 1 Q. So tell me the purpose of tracking the stats of 2 officers -- 3 A. So -- 4 Q. Wait. Hold on -- and want to capture the stats 5 for the downtown foot patrol overtime. What was the 6 purpose in this? 7 A. To know what the officers were doing while they 8 were downtown. 9 Q. So was it what they were doing or what arrests 10 they were making, or all of that? 11 A. All of that. 12 Q. Did you also listen to the radio to see what 13 arrests they were making? 14 A. I mean, I have a radio in my office and I may 15 have heard on occasion, but I wasn't specifically 16 following them on the radio. 17 Q. Would that be a method in which you would track 18 the stats of CAT officers? 19 A. Not necessarily. 20 Q. Well, I know not necessarily, but you -- 21 specifically, would you do that? 22 A. I would hear them working. 23 Q. Okay. Did you write down somewhere, 24 hypothetically, if you heard someone working, I heard 25 Officer Kemp today and he was making an arrest for Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1633 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 537 1 loitering? 2 A. No. 3 Q. Okay. So that wasn't part of the tracking 4 process, it was only the e-mails that the officers 5 self-reported then, right? 6 A. Yes. 7 Q. What happens if the officer didn't send you an 8 e-mail with these statistics? 9 A. Nothing. 10 Q. And how many officers would routinely send you 11 e-mail statistics? 12 A. I don't recall. 13 Q. Have you ever seen an officer send you an 14 e-mail statistics? 15 A. Yes. 16 Q. Once? Twice? A lot? 17 A. I don't recall. 18 Q. Okay. Do you recall the name of an officer who 19 would send you an e-mail with statistics on his 20 productivity on these CAT overtime shifts? 21 A. No. 22 Q. Not a single name in your department? 23 A. No. 24 Q. Okay. Do you recall anything from 2013 25 regarding CAT shifts? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1634 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 538 1 A. Yeah. That we had them. 2 Q. You write at the end of each shift, could one 3 of the officers working send me an e-mail with the 4 number of citations, arrests, FIs and reports written, 5 right? 6 A. Yes. 7 Q. So is that what you would expect on a 8 two-officer shift, that, perhaps, one of those officers 9 would then gather the information from the other officer 10 and send an e-mail and say this is what, for example, on 11 9/16 -- I'm sorry -- 9/21, Phillips and Waddell did 12 today? 13 A. Yes. 14 Q. And did that happen? 15 A. On 9/16, I don't know. 16 Q. Well, I mean, did that routinely happen? 17 A. Routinely, no. 18 Q. So where it says at the end of each shift, 19 could one of each officers, is this an order from you or 20 is this, like, a request? Suggestion? What is this? 21 MR. PALMER: Objection. Relevance, not based 22 on any charge. 23 THE HEARING OFFICER: Well, where are you going 24 with all this? 25 MS. CASTILLO: Well, I guess, I can ask one Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1635 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 539 1 more question and then be done with it. 2 THE HEARING OFFICER: All right. One more 3 question and then let's move on to something else. 4 BY MS. CASTILLO: 5 Q. Do you know the answer to that one? 6 A. Rephrase. 7 THE HEARING OFFICER: Do you want to have it 8 read back? 9 (Record read by the court reporter.) 10 THE WITNESS: Request. 11 MS. CASTILLO: Okay. I, actually, don't have 12 another question. 13 THE HEARING OFFICER: Okay. 14 BY MS. CASTILLO: 15 Q. Actually, I take that back. Sorry. 16 If, in fact, an officer actually complied with 17 your request, would they also be CCing these potential 18 other supervisors, Goodwin, Pfarr and Mickel? 19 A. I don't know. 20 Q. You don't know. Okay. 21 So back to this e-mail. On 10/ 12, Officer 22 Dickle and Stahnke were assigned? 23 A. Yes. 24 Q. Okay. And on 10/ 19, Officer Stahnke and 25 Officer Waddell were assigned? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1636 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 540 1 A. Yes. 2 Q. And then as the CAT supervisor, did you go and 3 look at the individual officers' time cards that were 4 submitted as part of their payroll process to determine 5 that they worked these five-hour shifts on these dates? 6 A. When I approved them or just looked after they 7 worked? 8 Q. After they worked. 9 A. No. 10 Q. We've heard some testimony about 10/ 18. Do you 11 remember that? 12 A. Yes. 13 Q. On 10/ 18, if you saw Officer Waddell, would 14 that have been during a regular patrol shift for him? 15 A. I don't know. 16 Q. Okay. Well, on 10/ 18, there was no CAT shift, 17 correct? 18 A. Correct. 19 Q. Do CAT shifts materialize after these lists 20 have been posted? 21 A. No. 22 Q. Okay. And then on 10/ 19, Officer Waddell 23 worked CAT? 24 A. He was scheduled to work CAT, yes, and he did 25 work. I know he was there. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1637 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 541 1 Q. You know that not because you were physically 2 present, but you learned that through the phone call 3 of -- 4 A. Sergeant Pfarr. 5 Q. -- Sergeant Pfarr, right? 6 A. Correct. 7 Q. And then on the 20th, Officer Waddell also 8 worked, right? 9 A. I don't know. 10 Q. Because that would have been what day? 11 A. Sunday -- or I'm sorry. Yeah, Sunday. 12 Q. Okay. And you're off on Sundays, right? 13 A. Correct. 14 Q. Okay. Did you follow up to see if he worked on 15 Sunday? 16 A. No. 17 Q. Did you follow up to see, with whoever the 18 watch commander was on that date, if he was on time? 19 A. No. 20 Q. Okay. And then he was scheduled the 29th, 21 according to this e-mail, correct? 22 A. Correct. 23 Q. Did you see him on the 29th? Do you recall? 24 A. I don't recall. 25 Q. What date would that -- or what day would that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1638 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 542 1 have fallen on? 2 A. I don't know. 3 Q. Okay. Did you do any follow-up, that you can 4 recall, to determine if Officer Waddell was on time for 5 his 10/ 29 shift? 6 A. No. 7 Q. Did you have any conversations with anyone 8 about Officer Waddell working on 10/ 12? 9 A. I don't recall. 10 Q. You don't recall, as you sit here today, if you 11 had any conversations -- wait. You don't recall today 12 or just in general? 13 A. I don't recall today if I had a conversation 14 with anybody about Officer Waddell working on 10/ 12. 15 Q. Can you access SpeedShift from your cell phone? 16 A. No. 17 Q. Can you access it from the Internet? 18 A. No. 19 Q. So it's intranet thing that even an officer 20 cannot look up their schedule on, correct, like, through 21 Exchange, or whatever? 22 A. Correct. 23 Q. Okay. You have to be physically in the 24 department to look at SpeedShift, correct? 25 A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1639 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 543 1 Q. Now, you -- we had talked a little bit about 2 SpeedShift being blank on October 19th. Do you recall 3 that? 4 A. Yes. 5 Q. Okay. But, according to this Appellant's 6 Exhibit H, the language in the paragraph above these 7 dates says, all the shifts have been entered into 8 SpeedShift under CAT overtime. Do you see that? 9 A. Yes. 10 Q. And your testimony has been that the officers 11 have no ability to amend what's been entered in the CAT 12 shift, correct? 13 A. Correct. 14 Q. So who would have the ability to amend what has 15 been entered into CAT? 16 A. Any supervisor. 17 Q. So a sergeant or above? 18 A. Correct. 19 Q. Okay. So if this says that all shifts have 20 been entered into SpeedShift and then SpeedShift was 21 then blank on October 19th, do you have any idea how 22 that would have come to be? 23 A. No. 24 Q. Okay. No personal knowledge of that, right? 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1640 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 544 1 Q. Okay. But you did send out an e-mail with a 2 posting of the shifts after -- which included 10/ 19, 3 correct? 4 A. Correct. 5 Q. Okay. Now, earlier, you testified that 6 Sergeant Pfarr made you aware that Officer Waddell had 7 been late to CAT overtime. Do you recall that 8 testimony? 9 A. Yes. 10 Q. And what shifts were those? What dates? 11 A. I don't remember if he gave me specific dates. 12 Q. You didn't document it anywhere, as the 13 supervisor of CAT? 14 A. No. 15 Q. Okay. Did you ask Sergeant Pfarr to document 16 those dates that he noticed Officer Waddell was late? 17 A. I don't believe that I said -- or during that 18 questioning that he was concerned that he was leaving 19 early or coming in late. He didn't have any specific 20 examples or times. So I had instructed Sergeant Pfarr 21 to keep an eye on it and to address it appropriately. 22 Q. Okay. So let me see if I paraphrase this 23 right. Tell me if I get it correct. 24 Sergeant Pfarr tells you, I believe Officer 25 Waddell is late to CAT, but I have no specific examples Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1641 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 545 1 or dates, and you say, okay, monitor it? 2 A. Late or leaving early. 3 Q. Okay. 4 A. I don't remember specific, and he -- again, 5 field supervisors are often out in the field and not on 6 location and he felt that there was times he may have 7 left before a shift or came in late, I don't know, 8 because he could be out in the field. 9 So, that time, without specific information, I 10 told Sergeant Pfarr to monitor it and address it 11 appropriately. 12 Q. Okay. So what you're saying is it may not have 13 even been that he was late or leaving early, it just may 14 have been that he was, actually, out in the field and 15 the supervisor didn't, physically, see him? 16 MR. PALMER: Objection. Speculation. 17 MS. CASTILLO: Well, I'm sorry. Did I 18 paraphrase that wrong? 19 THE HEARING OFFICER: Do you understand the 20 question? 21 THE WITNESS: Um... 22 THE HEARING OFFICER: Try it again. Well, 23 let's read it back and see what it says. 24 (Record read by the court reporter.) 25 THE HEARING OFFICER: I'll allow that. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1642 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 546 1 THE WITNESS: That's accurate. 2 BY MS. CASTILLO: 3 Q. Okay. And you've testified that, at this time 4 period, at least, that you remember, having been the 5 supervisor, then, that there was no actual check-in, 6 sign-out process to say, hey, Sergeant, I'm here, I need 7 a box because I don't have one, right, and then leave? 8 There is no actual clock-in with the supervisor for CAT, 9 correct? 10 A. Correct. 11 Q. Okay. Is there a clock-out with the supervisor 12 for CAT? 13 A. No. 14 Q. Okay. Is there a time card process whereby you 15 walk by and you dip your time card into a thing and it 16 stamps it? 17 A. No. 18 Q. Okay. How many instances did Sergeant Pfarr 19 tell you, when he had this conversation with you, raise 20 concern, even though we have no specific examples or 21 dates? Do you recall? 22 A. I don't recall him giving a number. 23 Q. Had you ever had an issue, having been the 24 supervisor, with Officer Waddell that you documented him 25 being late, him leaving early and you had a problem with Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1643 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 547 1 it? 2 A. I don't believe so. 3 Q. Now, would you agree with me that most of the 4 time during this CAT overtime, you were the supervisor? 5 A. I would have to look at the dates. If they're 6 Fridays and Saturdays and Sundays, then, no, I would not 7 agree with you. 8 Q. So if they weren't Friday, Saturday or Sunday, 9 then the answer would be yes, though, correct? 10 A. No. 11 Q. Okay. 12 A. I can explain it if you'd like. 13 Q. Please. 14 A. Okay. On any given patrol shift, I'm the watch 15 commander. I oversee all of day watch. That means 16 patrol, the bike team, now the CAT team and those that 17 are out. I'm not the field supervisor. I receive 18 total. So out in the field, I typically don't supervise 19 the people, officers working, unless their sergeant is 20 unavailable. 21 So -- and the way our system works is we have a 22 field supervisor, which is a sergeant. So when the 23 officers are out in the field and they're performing 24 their duties, they answer to the field supervisor and 25 the sergeant on duty. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1644 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 548 1 So my main purpose in this -- the conception or 2 inception of this team was establishing sending out the 3 shifts, finding officers to work and having them out in 4 the field. Once they're out in the field, typically, 5 with arrests or things going on in the field, the 6 sergeant would be their primary supervisor and they 7 would answer to them. 8 Q. Okay. So you relied on, like most lieutenants 9 do, the sergeants, the field supervisors to let you know 10 what was going on with the subordinates who were working 11 underneath them? 12 A. Yes. 13 Q. And that would include when they arrived and if 14 it was on time, correct, or if it was a late -- 15 A. If they had a violation where an officer is 16 showing up late and they observed it, it's for them to 17 address at those points. 18 Q. And being tardy is a violation of your policy; 19 is it not? 20 A. Define tardy. We don't use that term. 21 Q. Okay. Being late for your shift is a violation 22 of policy, correct? 23 A. Officers are expected to show up on time for 24 their shifts, yes. 25 Q. So, yes, it is a violation of policy? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1645 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 549 1 A. Yes. 2 Q. Thank you. 3 And then your testimony is that it would be, 4 then, the responsibility of the witnessing sergeant, the 5 field supervisor, to address it at that point, correct? 6 A. Correct. 7 Q. Prior to this notification by Sergeant Pfarr, 8 had he ever come to you and said, I have addressed with 9 Officer Waddell on occasions, I don't even know how 10 many, one, two, ten, that he has been late or leaving 11 early? 12 A. Prior to what occasion? 13 Q. When you were notified that he had a concern. 14 A. I don't believe he had ever come to me. 15 Q. Okay. 16 A. To my recollection. 17 Q. Okay. And then had you heard from Sergeant 18 Goodwin or Mickel that Officer Waddell is leaving early 19 and/or -- I'm sorry -- leaving late -- no, no -- 20 arriving late or leaving early and they had addressed an 21 issue with Sergeant -- I'm sorry -- Officer Waddell? 22 A. I don't recall if they had or hadn't, but I 23 don't believe they did. 24 Q. Okay. And have you seen any documentation, 25 supervisors' logs, time cards, e-mails, anything that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1646 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 550 1 would indicate that any of those supervisors had had 2 conversations with Officer Waddell about arriving on 3 time for this particular shift or leaving early? 4 A. The question doesn't make sense to me. 5 Q. Okay. Well -- 6 A. There's a lot of things we don't do that you're 7 saying in the question. So it's one I can't answer. 8 Q. Okay. I get that. I can break it down. 9 So what you are saying is that Sergeant Pfarr 10 conveyed his concerns to you verbally, correct? 11 A. Correct. 12 Q. Did you see anything in writing from Sergeant 13 Pfarr that would convey his concerns regarding -- 14 A. No. 15 Q. -- the timeliness of -- 16 A. If he hadn't directly observed it, I would not 17 want him to write up Officer Waddell for something like 18 that. He would need to directly observe the violation 19 and be able to confirm that it happened. 20 For Sergeant Pfarr, when he came to me, you 21 know, it was more of he was coming back to the station 22 close to 4:00 and Kevin would already be gone or there 23 was a concern that he would see his partner here and 24 Kevin was not yet here, but he hadn't observed the exact 25 time that Kevin showed up or left. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1647 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 551 1 So for him to complete documentation on that 2 would be inappropriate and that's why I asked him, from 3 that point forward, to monitor and try to be in the 4 department to see when he's showing up and when he's 5 leaving. 6 Q. Okay. Got it. Now, in terms of a written 7 reprimand or written counseling, have you ever been 8 notified in writing, not going to -- not documentation 9 going to Officer Waddell that he would be notified, 10 aware of, sign for, but did you ever receive an e-mail 11 or did you ever see a supervisor's log or a watch 12 commander's day shift or any daily log or anything from 13 the supervisors who were field supervising him on the 14 CAT sheet -- or, I'm sorry -- the CAT assignment that 15 said, even though they didn't address it with Officer 16 Waddell -- are you still with me? 17 A. Well, there's a lot of things you're saying 18 that we don't do in there. So I'm not with you on this 19 question. 20 Q. It wasn't done. I was just trying to make sure 21 we're on the same page. 22 A. We're not. 23 Q. Okay. Did you ever receive any correspondence, 24 see anything in writing from any of your supervisors, 25 notifying you in the method in which Sergeant Pfarr did, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1648 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 552 1 verbally, not that they counseled or gave him anything 2 in writing? 3 A. I don't recall if I ever received any e-mails 4 specific to that. 5 Q. Okay. 6 A. If it was in writing -- like, supervisors know 7 it would need -- Kevin would need to have seen that and 8 there's nothing, to my knowledge, that was ever created 9 and I don't recall ever receiving an e-mail. I could 10 have, but I don't recall. 11 Q. What is the supervisor's note? 12 A. It's an observation that where it would be 13 presented to an officer. Typically, if an officer is 14 late, like we're discussing, it would say, this date and 15 time, you showed up late for your shift, don't do it 16 again. It's, basically, just a verbal -- it's a written 17 counseling given to an officer and it's something that 18 goes in their quarterly files that is held on until 19 their next annual evaluation. 20 Q. Okay. And then at the point of their annual 21 evaluation, the sergeant could write about it in their 22 evaluation or choose not to, correct? 23 A. Correct. More than likely, they would write 24 about it in what we call the rotational evaluation at 25 the end of each rotation and just put a note in that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1649 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 553 1 they had received this observation, and if it's not a 2 pattern, typically, we don't include it in an annual 3 evaluation. 4 Q. Okay. And a pattern would be one or more? Two 5 or more? 6 A. There's no specific number. 7 Q. Okay. It's a subjective pattern? 8 A. Just that it happened more than once. 9 Q. Did you ever -- nevermind. 10 Now, if an officer was given a supervisor's 11 note saying you were late on this date and time, they 12 would sign for receipt, correct? 13 A. Yes. 14 Q. If they disagreed with it, what would the 15 process then be? 16 A. They can submit a memo with their disagreement 17 and it would be attached to that supervisor's 18 observation. 19 Q. Have you -- you testified that you don't recall 20 seeing any supervisors' notes regarding Officer Waddell 21 coming in late or leaving early on the CAT shift. 22 Did you ever receive any -- or do you ever 23 recall reading any memos authored by Officer Waddell 24 that he disagreed with his supervisor's note because of 25 a perception that he was leaving early or arriving late Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1650 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 554 1 in a pattern? 2 A. No. 3 Q. Okay. To your knowledge, was Officer Waddell 4 ever advised by any supervisor of these concerns, other 5 than by Pfarr, like he was coming to work after a shift 6 started or leaving early? 7 A. To my knowledge, no, I don't know. 8 Q. No one reported that to you, as the CAT shift 9 supervisor? 10 A. Well, he works other shifts. So you're saying, 11 in general, has he ever -- 12 Q. I'm only talking about CAT. Sorry. I'll limit 13 it to that. 14 A. To my knowledge -- or no one had ever, besides 15 Sergeant Pfarr, to my recollection. 16 Q. Okay. And did you ever talk to him about 17 coming in -- 18 A. No. 19 Q. Okay. Now, you told Sergeant Pfarr, after he 20 talked to you about these concerns that he had, to 21 monitor him, correct? 22 A. Monitor when he's coming and going, yeah. Just 23 the concerns, things he brought to my concern. 24 Q. Then you would have also told Sergeant Goodwin 25 and Sergeant Mickel to do the same thing, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1651 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 555 1 A. If I had seen that it was on shifts that he was 2 working with them, I don't recall that I passed that 3 information on. I could have. So I don't remember. 4 Q. So you don't remember if you just only had one 5 supervisor monitoring Officer Waddell? 6 A. I don't recall, after my conversation with 7 Officer Pfarr, if I passed that information on. 8 Q. Okay. You don't -- you don't recall sending an 9 e-mail to the sergeants, who would be your eyes and ears 10 when you weren't there, it's been brought to my 11 attention Officer Waddell is having issues, can you all 12 monitor him? 13 A. I may have. I don't remember. 14 Q. Now, you deleted your sent e-mails regarding 15 the CAT shifts somewhere around the time of December of 16 2013, though, right? 17 A. Well, I could have deleted them before that. 18 We get -- the way our mail system works is we're only 19 allowed so much memory. When we get to almost maxing 20 that memory, we're sent an automatic reply saying we 21 need to get rid of some of our e-mails. If we don't, 22 our e-mail locks up and we're not able to do it. 23 Whenever I get these notices, I will, typically, empty 24 out my sent and delete boxes to create more memory 25 space. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1652 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 556 1 So the ones that I sent out could have been 2 deleted even before that date, just depending on how 3 full my e-mail was. I don't recall when I deleted it. 4 Q. When you were interviewed on 12/ 12/2013, you 5 indicated that you deleted your e-mails two days ago. 6 Do you recall reading that in the transcripts? 7 A. I do. 8 Q. And is that on this -- is that when you would 9 have deleted the -- your deleted -- or your trash 10 e-mails and your sent? 11 A. More than likely, that's probably what I would 12 have deleted at the time, or emptied those boxes. 13 Q. Okay. So what you're saying is it would have 14 been all your sent e-mails and not just CAT sent 15 e-mails, right? 16 A. Any e-mails that were in my sent box were 17 deleted, and, again, I don't know, I may have just 18 deleted my deleted box. I don't know. Sometimes I 19 could empty that box and still have a lot of space. So 20 I'm not consistent in how I'm doing it. I'm telling you 21 what I've done in the past. 22 Q. Okay. Would you have gone through in the past 23 and just deleted CAT e-mails only? 24 A. No. 25 Q. Okay. Were you advised by Sergeant Pfarr that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1653 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 557 1 he advised Officer Waddell of his concerns that had been 2 conveyed to you? 3 A. Was I advised -- could you repeat the question, 4 please? 5 Q. Okay. Were you ever told by Sergeant Pfarr 6 that he had had a conversation with Officer Waddell 7 about these concerns he had? 8 A. I believe he said he would address them. Like 9 I said, I told him to address it. So I know he's talked 10 to him regarding the -- you know, being in there and 11 watching movies. So if I said or there's any 12 conversation of him talking with him, I don't know if it 13 was a reference to being late or the lunch or the 14 watching movies during the shift. 15 So I know, at some point, Sergeant Pfarr said 16 he had spoken with Officer Waddell. I don't know that 17 he was specific in sharing what information he discussed 18 with Officer Waddell. 19 Q. Okay. Now, you referenced the movie. You 20 believe that he talked to him about watching the movie 21 on a CAT shift at the time, right? Is that what you're 22 saying? 23 A. He was in the office when he was watching the 24 movie. What he said to him during that time, I don't 25 know. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1654 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 558 1 Q. You didn't ask how -- what method he -- 2 A. I didn't -- sorry. Go ahead. 3 Q. -- counseled the officer? 4 A. At the time, Officer Waddell stated he just 5 finished lunch and he was heading back out to his shift. 6 So, later, it was, you know, he and I had a 7 discussion about it and I expressed what my expectations 8 were during the shifts. So whether he went back and 9 readdressed that, I'm not sure what conversations he 10 had. He never shared, specifically, what conversations 11 he had with Officer Waddell. 12 Q. Okay. When you're saying later, are we talking 13 later that day or later, months later? 14 A. Whenever he brought it to my attention. I 15 don't believe it was later that day. 16 Q. Okay. So you're saying that it is your 17 understanding that when Sergeant Pfarr observed this 18 movie-watching, that he did not counsel Officer Waddell 19 on the spot and he later talked to him about this event 20 that had taken place in the past? That's your 21 understanding? 22 A. No. My understanding is I don't know what 23 conversations he had with Officer Waddell. 24 Q. And you remember being interviewed on February 25 13th in this matter, correct? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1655 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 559 1 A. February 13th? 2 Q. Yes. 3 A. I believe the February 13th was regarding the 4 Bentley matter, wasn't it? 5 THE HEARING OFFICER: Do we have a year? 6 MS. CASTILLO: 2013. 2014. I'm sorry. 7 Interviewed 2014. 8 THE WITNESS: Regarding this matter? 9 BY MS. CASTILLO: 10 Q. Yes. Regarding your interview, not when the 11 Bentley matter happened. Do you remember being 12 interviewed? 13 A. By Lieutenant Proll? 14 Q. Yes. 15 A. Okay. It's -- 16 Q. No. 17 A. Regarding -- I thought on the February 18 interview was the one with Lieutenant Proll. 19 Q. Lieutenant Proll, February 13th at 5:00 p.m. 20 Does that refresh your memory as to when you were 21 interviewed? 22 A. Yes. I was saying that's the Bentley 23 interview, regarding the Bentley incident, not the 24 incident of -- that we're focusing on regarding the CAT 25 shifts. They're two different things. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1656 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 560 1 So I'm just clarifying because you keep saying 2 distance and, currently, we're talking about CAT and 3 that is regarding a different incident. 4 Q. Okay. So are you saying that there was nothing 5 that came up regarding the CAT investigation in that 6 interview? 7 A. No, I'm not saying that. I'm just clarifying 8 what incident you're talking about. 9 Q. Well, I'm not talking about an incident. I'm 10 talking about an interview you had. 11 THE HEARING OFFICER: Okay. Let's go on and 12 ask questions about the interview, if that's what you 13 want to do. 14 BY MS. CASTILLO: 15 Q. Do you have your transcript that you were given 16 by counsel? 17 A. I do. What page would you like me to refer to? 18 THE HEARING OFFICER: Do we have an exhibit 19 number of that? 20 MR. PALMER: Exhibit 20. 21 THE HEARING OFFICER: Thank you. 22 BY MS. CASTILLO: 23 Q. And I will give you my -- 24 THE HEARING OFFICER: Department 20? 25 MR. PALMER: Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1657 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 561 1 BY MS. CASTILLO: 2 Q. I will give you my copy so we can all be on the 3 same page. 4 MR. PALMER: Do you have one for me? 5 MS. CASTILLO: Yeah. 6 MR. PALMER: Cool. 7 THE HEARING OFFICER: Is this one of the ones 8 we were going to mark the appellant's version of all of 9 them? 10 MS. CASTILLO: Yes. So this is now I? 11 THE HEARING OFFICER: Okay. 12 MS. CASTILLO: Hearing officer, please. 13 THE HEARING OFFICER: Okay. We're marking, as 14 Appellant's I, a Cal Pacific Reporting transcript of the 15 other recording of the interview of Lieutenant Jeff 16 Smith on February 13. It was transcribed June 15, 2015. 17 This is by Lieutenant Proll. 18 BY MS. CASTILLO: 19 Q. When was the last time you read your 20 transcripts? 21 A. Uh, earlier this morning. 22 Q. What time? 23 A. I don't know. Probably 7:30-ish. 24 Q. So they're pretty fresh in your mind? 25 A. I'll be honest with you. I focused on the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1658 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 562 1 other transcripts. I think I glanced through this one 2 one time. So I was focusing on the transcripts with 3 Lieutenant Bledsoe interviews. 4 Q. And why was that the focus? 5 A. Just because those were a lot of things we 6 discussed with counsel prior to or regarding questions 7 in that. 8 Q. Okay. Now, remind me. Lieutenant Proll did 9 the investigation on the Bentley, correct? 10 A. Correct. 11 Q. And Lieutenant Bledsoe did the investigation on 12 the texting CAT issue, correct? 13 A. Yes. 14 Q. And this interview is with which lieutenant? 15 A. Proll. 16 Q. Okay. So the Bentley lieutenant, right? 17 A. Correct. 18 Q. Okay. Are you ready? 19 A. Yes. What page did you want me to look at? 20 Q. Let's start with Page 4. 21 A. Okay. 22 Q. I'm going to ask you questions about Lines 23, 23 going on to Page 5, through Line 12. 24 A. Okay. 25 Q. So Page 4, Lines 23 to Line 12 on Page 5. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1659 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 563 1 A. Okay. 2 Q. And this is the Bentley investigation, right? 3 A. Correct. 4 Q. Okay. So now we're going to go back to the 5 movie. Okay? 6 A. Okay. 7 Q. So in this interview with Lieutenant Proll, you 8 indicate that the information that had been conveyed -- 9 well, first, you never talked to Officer Waddell about 10 the movie, yourself, correct? 11 A. Correct. 12 Q. So any information you have about this is only 13 through Sergeant Pfarr, correct? 14 A. Correct. 15 Q. But Sergeant Amoroso was, actually, his direct 16 supervisor, correct? 17 A. Correct. 18 Q. Him, being Officer Waddell? 19 A. Yes. 20 Q. Did you ever have a conversation about Officer 21 Waddell's timeliness with Sergeant Amoroso? 22 A. I don't recall if I did or didn't. 23 Q. Did you ever have a conversation with Sergeant 24 Amoroso about Officer Waddell being caught watching a 25 movie at any point? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1660 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 564 1 A. I don't recall. 2 Q. Okay. So -- but you do recall talking to 3 Sergeant Pfarr about this, right? 4 A. Well, Sergeant Pfarr talking to me about it. 5 Q. Okay. Conversation with him? 6 A. Yes. 7 Q. Okay. So, Page 5, you tell Lieutenant Proll 8 that Chad had caught him in the office one time, 9 watching a movie, right? 10 A. What line are we referring to? 11 Q. I'm reading Lines 3 and 4 on Page 5. Correct? 12 A. Yes. 13 Q. Where is this office at? 14 A. The downtown office? 15 Q. Well, I don't know. It says office. 16 A. When Chad had the conversation, I believe he 17 was referring to the downtown office, which is the 18 Copeland's building near California Pizza Kitchen. 19 Q. Okay. So this is not an office in the police 20 station, right? 21 A. That's correct. 22 Q. This is an office that is within the downtown 23 foot patrol area? 24 A. Correct. 25 Q. Okay. And is this a police office in the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1661 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 565 1 downtown foot patrol area? 2 A. It's one we used to have. We no longer have 3 it, but at that time, it was. 4 Q. Like a substation? 5 A. Just an office for them to do reports. It was 6 really not a place where people went to file reports or 7 anything like that. 8 Q. So it's a place where the officers who are 9 downtown can go to an office and write reports? 10 A. Correct. 11 Q. During their CAT shift? 12 A. Correct. 13 Q. And is there a TV in there? 14 A. I don't believe there was. I believe it was 15 just computers. 16 Q. Okay. 17 A. I don't remember. 18 Q. And so any movie would have had to have been 19 played on a San Luis Obispo city computer? 20 A. A computer, yes. 21 Q. Did you do any follow-up to see if any movies 22 had been downloaded onto the computer system in this 23 downtown foot patrol office around that time? 24 A. No. 25 Q. Okay. So when you say Chad had caught him in Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1662 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 566 1 the office one time watching a movie, what kind of 2 movie? 3 A. I don't know. 4 Q. Well, is it a training video? Is it an action 5 flick? I mean, is it something that has to do with 6 work, or not? 7 A. I don't know. 8 Q. Could it be something that had to do with work 9 if it was on a work computer? 10 A. Maybe. Could have. 11 Q. You didn't ask? 12 A. No. 13 Q. Well, it was enough of an issue for Sergeant 14 Pfarr to be concerned with this movie. You didn't ask 15 what kind of movie it was? 16 A. No. 17 Q. Certain movies would be violations of policy, 18 right? 19 A. Correct. 20 Q. Big violations of policy, right? 21 A. Correct. 22 Q. You didn't follow up, at all? 23 A. No. 24 Q. Did you ask Sergeant Pfarr to go get you a copy 25 of this movie for, you know, evidence for that IA that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1663 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 567 1 you were going to go and talk to the captains about 2 opening? 3 MR. PALMER: Objection. Assumes a fact not in 4 evidence. 5 THE HEARING OFFICER: Was there an IA about 6 this? 7 THE WITNESS: No. 8 BY MS. CASTILLO: 9 Q. So no further details, right? 10 A. Correct. 11 Q. Have you, today, or up to this period, learned 12 what type of movie this was? 13 A. No. 14 Q. But the inference Sergeant Pfarr gave you was 15 it was an unacceptable movie; otherwise, it wouldn't 16 have been brought to your attention, right? 17 A. He didn't make an inference. 18 Q. Are officers discouraged from watching 19 work-related training videos at work? 20 A. No. 21 Q. And the majority of the time needed to be 22 downtown on foot patrol, right? 23 A. Correct. 24 Q. But there was still this unspecified minority 25 of time that the officers could do other things, like go Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1664 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 568 1 to this downtown office and write reports, right? 2 A. If needed, yes. 3 Q. And, maybe, watch, I don't know, a training 4 movie or something? 5 A. That would not have been appropriate on this 6 shift. 7 Q. Where in this e-mail, Exhibit H, does that say 8 that? 9 A. It doesn't. 10 Q. Okay. Now, you had said it was not appropriate 11 for him to have lunch on this shift, right? 12 A. That's correct. 13 Q. Okay. And it says that in Exhibit H where? 14 A. It doesn't. 15 Q. People usually eat lunch at noon, right, or 16 thereabouts? 17 A. I sometimes don't eat lunch till 2:00. 18 Q. Well, I sometimes don't eat lunch ever, but 19 normal people might. 20 THE HEARING OFFICER: Today may be one of those 21 days we never get a lunch. 22 BY MS. CASTILLO: 23 Q. 11: 00 to 16: 00, right? 24 A. Those are the hours they're asked to work, yes. 25 Q. So the officers are discouraged from eating Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1665 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 569 1 during this time period? 2 A. I didn't say discouraged from eating. When I 3 spoke with Chad, I said try to encourage them to have 4 lunch before. If they need a break to get a drink or 5 have a granola bar or something like that, I wouldn't 6 discourage that, with them being downtown on foot, but 7 to take a full lunch break during a five-hour patrol 8 shift, they were discouraged from doing it. 9 Q. What is the time period for a full lunch break? 10 A. What do you mean? 11 Q. You said a full lunch break. How long is that? 12 A. A standard lunch break we would allow for our 13 department. 14 Q. How long is that? 15 A. Typically, 35 minutes. 16 Q. So nothing 35 minutes in length, but something 17 at least 15 minutes, right? 18 A. I didn't give a specific time. 19 Q. Well, on Page 5, Line 7, you were told by 20 Sergeant Pfarr that Kevin said he was just finishing his 21 lunch and he had watched a movie at that time, but Chad 22 said you're only here for four hours, you get a 23 15-minute break. You said that, right? 24 A. I said that during this, yes. 25 Q. So did the shift change from five hours to four Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1666 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 570 1 hours? 2 A. No. I misspoke. 3 Q. Did they get a 15-minute break? 4 A. Well, if Chad -- we allow, like I said, for 5 officers to get a drink, have a cup of coffee, get 6 something. Whether they do it in five or ten minutes, 7 it's not specific. Our job is unpredictable. Unlike 8 yours, we don't get a lunch or breaks. 9 So to say you have, specifically, 15 minutes 10 throughout the day would be a misconception in how we do 11 our job. It's usually dependent on how busy we are and 12 what's going on during the shift. 13 So if Chad had advised him at that time, it was 14 something of you can take these breaks, but maybe not as 15 long, and I'm assuming why Chad would have said 16 something like that. 17 Q. And did you follow up your assumptions? 18 A. Follow up in what way? 19 Q. To confirm. Since you're making assumptions, 20 did you see -- 21 A. Not off this singular incident, no. 22 Q. And did Sergeant Pfarr indicate to you that he 23 had observed Officer Waddell taking more than this 24 15-minute break that you speak about in Line 7 and 8? 25 A. Well, I'm assuming, and -- well, I can't answer Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1667 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 571 1 that question. 2 Q. Okay. Did he tell you during his conversation 3 with you when he was reporting this movie, I watched 4 Officer Waddell watch this movie for at least 15 5 minutes -- 6 A. No. 7 Q. Do you know how long Officer Waddell was 8 watching this movie for? 9 A. No. 10 Q. And you don't even know if it was on the 11 department computer or on his phone or anything like 12 that, right? 13 A. No. 14 Q. But he's eating his -- he's finishing his 15 lunch, right, according to Officer -- or Sergeant Pfarr, 16 who tells you this, right? 17 A. According to Sergeant Pfarr, Kevin's statement 18 to him was he had just finished or finishing his lunch. 19 Q. And he was watching a movie at the same time he 20 was eating? 21 A. According to Kevin's statement to Sergeant 22 Pfarr. 23 Q. Okay. Did it concern Sergeant Pfarr, when he 24 reported this to you, that Officer Waddell was finishing 25 his lunch? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1668 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 572 1 A. I don't know. 2 Q. Well, he only mentioned the movie, correct, as 3 being the concern, not the lunch, right? 4 A. I don't recall. 5 Q. Did he tell you that he then had Sergeant -- 6 I'm sorry -- Officer Pfarr -- Officer Waddell leave with 7 him and then go get coffee? 8 A. I don't recall him saying that to me. 9 Q. Well, that would have been relevant if he had 10 already taken his 15-minute break and then gotten -- and 11 gotten a coffee, additionally, right, to you, as a 12 supervisor, because now he's extending past this 13 15-minute allotment, right? 14 A. Not necessarily. 15 Q. That's okay? 16 A. If he was counseling him in an appropriate 17 manner regarding what happened, I would, absolutely, say 18 it would be okay because, at times, whether it's in an 19 office or out on a cup of coffee, it's okay to counsel 20 and talk to another officer. 21 So if he did do that and it was for those 22 purposes, it would, absolutely, be appropriate. 23 Q. And did he tell you that I took him to coffee 24 thereafter and counseled him? 25 A. He didn't tell me anything regarding that. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1669 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 573 1 Q. Okay. And you reinforced with Chad, and that's 2 Sergeant Pfarr, right, to stay on top of this, right? 3 A. Correct. 4 Q. Okay. And are you referring to the 5 movie-watching or are you referring to the coming in and 6 leaving? 7 A. I'm referring to, in general, everything, that 8 the expectation is officers are to be downtown for the 9 majority of their time on CAT shift, enforcing the 10 things in the locations specified. So it's a general 11 statement to his performance during a CAT shift. 12 Q. Right. Okay. Then you said, if it's becoming 13 an issue, Kevin needed to be written up, correct? 14 A. Correct. 15 Q. So, at that point, it was your understanding 16 that it was not, actually, an issue, but then it could 17 manifest and require, what, a supervisor's note? 18 A. At that point, it could just have been a 19 misunderstanding by Kevin on a lot of lunch breaks and 20 what our expectations are, and if it continued, then it 21 would need to be a supervisor note, if Chad had 22 counseled him on what the expectations were and he 23 continued to do those things. 24 So whether it was a misunderstanding by what 25 Kevin's responsibilities were and what he was -- should Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1670 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 574 1 or shouldn't do, then it was more of, if this continues, 2 based on after you talk to him, then it's an issue and 3 it needs to be documented. 4 Q. And you -- as a lieutenant who is supervising 5 Sergeant Pfarr, you would have followed up to see that 6 he's doing what he's supposed to be doing in terms of 7 his supervisory responsibilities over Officer Waddell, 8 right? 9 A. Not necessarily. 10 Q. And in this case, the answer is no, right? 11 A. No, that's not correct. 12 Q. Well, what is the answer? Did you do that? 13 A. Sergeant Pfarr and I regularly talked about how 14 the CAT shifts were going and he brought nothing to 15 my -- no concerns besides the coming and goings and 16 then, eventually, Kevin not showing up on time for one 17 of his shifts and lying to him. 18 So those are my expectations with Sergeant 19 Pfarr and he knows that and we have a good working 20 relationship and he keeps me informed with what's going 21 on in the shifts. 22 Q. Okay. And so anyone else have that good 23 relationship where they also mentioned Officer Waddell's 24 potential problems? 25 A. As I stated before, I don't recall if any other Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1671 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 575 1 sergeant came, specifically, regarding concerns. 2 Q. Okay. So then in Line 13, in this Bentley IA, 3 you started talking about how Chad had started having 4 concerns by some of the patterns. What patterns are we 5 talking about? 6 A. I think seeing him downtown in the office, 7 watching a show, and then the concerns that he was 8 leaving or coming in late for shifts, those patterns. 9 Q. Again, those are the shifts you have no 10 specific examples or dates on, right? 11 MR. PALMER: Objection. Asked and answered. 12 THE HEARING OFFICER: I'll allow it. 13 THE WITNESS: Correct. 14 BY MS. CASTILLO: 15 Q. Okay. Let's just go ahead to Page 10 now. Can 16 you read Lines 1 through 11? Because I'm going to ask 17 you questions about this statement you made to 18 Lieutenant Proll. Are you ready? 19 A. No. 20 Q. Okay. 21 A. Okay. I'm ready. 22 Q. Okay. So then you go on to say that, at this 23 point where Sergeant Pfarr is voicing these concerns to 24 you, with all the other stuff he had been dealing with 25 Kevin because he was having -- we were having -- he was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1672 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 576 1 having a lot of problems with Kevin. What are the other 2 problems? 3 A. The ones that I've mentioned. 4 Q. You say, "the other stuff." 5 A. It's just referring to the downtown and the 6 coming and going, possibly, early or late. 7 Q. Which you had not verified and Sergeant Pfarr 8 hadn't verified, right? 9 MR. PALMER: Objection. Asked and answered. 10 THE HEARING OFFICER: I'll allow it. 11 THE WITNESS: Correct. 12 BY MS. CASTILLO: 13 Q. You say, "we were having." Were you also 14 having problems with Officer Waddell? 15 A. I'm responsible for everybody on my shifts. So 16 if a sergeant is having a problem, I also take 17 responsibilities for those issues. 18 So in generalizing, because Kevin was working 19 those CAT shifts, if Chad is having a problem with it, 20 it's also my problem. 21 Q. So then you would have gone and addressed it 22 right then and there with Officer Waddell, right? 23 A. No. That's the sergeant's responsibility, as I 24 explained earlier. 25 Q. And so you were talking about operational-wide, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1673 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 577 1 because if it's Sergeant Pfarr's problem, it's now your 2 problem. 3 And then what about the other sergeants? They 4 didn't have problems, though, correct, to your 5 knowledge? 6 A. I don't recall them, as I said earlier, saying 7 or talking to me about anything. 8 Q. Okay. And then you say, on Line 8, being in 9 the downtown office. Was he also having issues being in 10 the downtown office? 11 A. I think I was just generalizing based on the 12 incident Chad brought to my knowledge. 13 Q. Okay. And, at this point, what he was 14 conveying to you was, based on these other things that 15 were happening, these lateness, or whatever, and the 16 movie thing, these are now integrity issues, right? 17 That's what you say in Lines 14 through 16, right? 18 A. I haven't read those lines yet. So give me a 19 second. 20 Q. You read them today, right? 21 A. Can I read them? 22 Q. Yes. Please read them, but you have seen this 23 today, correct? 24 A. As I said earlier, I looked at them this 25 morning, yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1674 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 578 1 Q. Okay. Great. 2 A. Correct. I see that. 3 Q. Okay. And then on Lines 19 through 21 -- well, 4 you can start with 18, you indicate that you get the 5 impression that Kevin was not real high on his list 6 because he had kind of become a problem officer, right? 7 A. Correct. 8 Q. And this is from the sole perspective, that 9 you're aware of, at this time, of Sergeant Pfarr, right? 10 A. Uh -- 11 Q. The problem officer designation. 12 A. Can you clarify your question? I don't 13 understand what you're asking. 14 Q. Kevin was not real high on his list. That's 15 Sergeant Pfarr, right? 16 A. Correct. 17 Q. Because he had become a problem officer for 18 Sergeant Pfarr, right? 19 A. Correct. 20 Q. Not anyone else, that you're aware of, right? 21 A. To my knowledge, no. 22 Q. Okay. And then you were not that concerned 23 with it because you continued to schedule Sergeant -- or 24 I'm sorry -- Officer Pfarr for these CAT overtime 25 shifts, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1675 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 579 1 A. You said Officer Pfarr. That's not correct. 2 Q. I'm sorry. Officer Waddell. 3 A. I had no reason to deny those overtime shifts, 4 per our policy. So he could still have those. I was 5 not not allowing him to have those shifts. 6 Q. Because overtime is a privilege, not a right, 7 though, right? You would agree with that, at least, 8 correct? 9 A. No. 10 Q. Wait. What? 11 A. If we posted and an officer puts it up, we're 12 going to give that to an officer. 13 Q. No matter what? 14 A. To my knowledge, I don't think I've ever denied 15 an officer overtime. 16 Q. Now, did Sergeant Pfarr convey to you that he 17 believed Officer Waddell was burnt out? 18 A. Um, I don't know if it was Sergeant Pfarr or 19 somebody, but those concerns may have, you know, come 20 across. 21 Q. May -- like, do you know if they did or -- 22 A. I don't recall the specific conversation or 23 wording used. So I know there was concern that it, 24 possibly, had been brought up regarding Officer Waddell. 25 Q. And did you do any analysis on your own, since Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1676 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 580 1 you were scheduling these, if that was what happened? 2 A. The concerns were more personal in nature. So 3 I did not get involved with those. 4 Q. Personal in nature, meaning they were Sergeant 5 Pfarr's personal opinion, right? 6 A. No. They were Officer Waddell's personal 7 problems. So I did not get involved with those issues. 8 Q. And by "personal problems," what are you 9 referring to? 10 A. Issues he was having at home. 11 Q. With? 12 A. His wife. 13 Q. His wife? 14 A. Yes. 15 Q. And you were, as a supervisor, were aware of 16 these? 17 A. Not any specific information. I just knew that 18 there was tension at home. 19 Q. How many times did Officer -- Sergeant -- 20 sorry -- Sergeant Pfarr bring this concern to you about 21 Officer Waddell? 22 A. What concern? 23 Q. Well, the ones that you've just enumerated, 24 Page 10. 25 A. The two times that I answered before. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1677 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 581 1 Q. What -- can you -- what two times? 2 A. The time when he came to me and said he had 3 caught him downtown in the office and the time when he 4 said he had concern that he was either showing up late 5 or leaving early for his shifts. 6 Q. Those were two different occasions when he 7 brought those to your attention? 8 A. To the best of my recollection, yes, I believe 9 they were two different occasions. I don't recall, 10 exactly, but I believe they were. 11 Q. Okay. And do you know how many overtime hours 12 Officer Waddell worked after 10/ 19? 13 A. I don't. 14 Q. Do you know how many overtime hours after 10/ 19 15 Officer Waddell worked on CAT? 16 A. No. 17 Q. Do you track that per officer? 18 A. Well, we have -- through time cards and 19 SpeedShift, I can go back and review it. I don't, 20 personally, track it. 21 Q. That was my question. Thank you. 22 So you don't do burnout determination on 23 whether these officers are working too much, right? 24 A. No. 25 Q. Now, did Sergeant Pfarr come to you in August Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1678 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 582 1 or September before the detectives promotion? 2 A. Come to me for what? 3 Q. To raise his concerns about Officer Waddell. 4 A. I don't remember the dates that he came to me 5 and shared the information. So it could have been in 6 August, but it wasn't -- he never came to me regarding 7 him putting in for special assignment, if that's what 8 you're asking. 9 Q. So did he even come to you and say, I have 10 concerns that Officer Waddell has integrity issues and 11 he's trying to promote and you need to know about this? 12 A. He came to me after he had a conversation with 13 Lieutenant Bledsoe. 14 Q. Okay. 15 A. I don't remember the date. 16 Q. Now, in the chain of command, though, aren't 17 you Officer Waddell's lieutenant? 18 A. I am. 19 Q. Okay. 20 A. No. I'm sorry. For the CAT team, yes, he was 21 working the nighttime bike team at that time. So, 22 actually, his supervisor and overall supervisor would 23 have been Lieutenant Proll, but when he's these -- a 24 couple times he works overtime on day shift, I would 25 have been considered responsible. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1679 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 583 1 Q. Do you have any knowledge of Sergeant Pfarr 2 going to Lieutenant Proll, his chain of command 3 supervisor, and conveying not just that he had issues 4 with CAT, because coming in to work on time is the 5 issue, correct? 6 A. Coming in -- I'm sorry. Could you rephrase the 7 question? You started in one direction and went in 8 another. So I'm not sure what you're asking. 9 Q. I do that on purpose, you know. 10 Did you have any -- do you or did you have any 11 information that Sergeant Pfarr went to Officer 12 Waddell's chain of command lieutenant and said, he has 13 issues getting to work on time, or he has issues because 14 he leaves early? 15 A. No. 16 Q. How is the Bentley IA started, to your 17 knowledge? 18 A. I don't know. 19 Q. No idea? 20 A. I do know that I was talking to Sergeant Pfarr 21 and he said he was completing a memo regarding the 22 incident for the captain. I don't know if that was the 23 start of the IA or not. I assume it may have been. 24 Q. Okay. 25 THE HEARING OFFICER: It's about 12: 30. How Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1680 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 584 1 are we doing with cross here? 2 MS. CASTILLO: Lunch is good. 3 THE HEARING OFFICER: So you're not going to be 4 finishing any time in the next 20, 30 minutes? 5 MS. CASTILLO: No. 6 THE HEARING OFFICER: I'm going to suggest this 7 is a good time to take a break. Is that okay? 8 MS. CASTILLO: Yeah. 9 MS. DIETRICK: That would be great. 10 THE HEARING OFFICER: Let's go off the record. 11 (Luncheon recess.) 12 THE HEARING OFFICER: We're back on the record. 13 It's a little after 2:00. We're continuing with the 14 cross-examination of Lieutenant Smith. Ms. Castillo, 15 take it away. 16 MS. CASTILLO: Thank you, thank you. 17 BY MS. CASTILLO: 18 Q. Okay. When we left before lunch, I asked you 19 how did the department become aware of the Bentley IA. 20 Do you remember that? 21 A. I'm sorry. The what? 22 Q. The Bentley incident. 23 A. How did they become aware? I don't know. 24 Q. So let's go back to your transcript, Page 12. 25 A. Okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1681 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 585 1 Q. Same day. And if you need to, you can read 2 Lines 3 through 16 to refresh your memory. 3 THE HEARING OFFICER: I'm sorry. Where are we 4 now? 5 MS. CASTILLO: Still on February 13 transcript, 6 Page 12 of appellant's exhibit and I'm asking him to 7 refresh his recollection. 8 THE HEARING OFFICER: Oh, we're on the 9 appellant's version of that. Okay. 10 THE WITNESS: I've read Line 3. 11 MS. CASTILLO: Line 3 through 16. 12 THE WITNESS: Oh, I'm sorry. Okay. 13 BY MS. CASTILLO: 14 Q. Okay. Does that refresh your recollection? 15 A. Again, you're asking me how did they become 16 aware of it? Um, I recall talking to Chad when he was 17 writing the memo, but, at some point -- 18 Q. My question is, does that refresh your 19 recollection? 20 THE HEARING OFFICER: That's a yes or no 21 question. 22 THE WITNESS: Can you give me the question that 23 I'm answering again, please? 24 BY MS. CASTILLO: 25 Q. Does reading the transcript dated February -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1682 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 586 1 I'm sorry -- from your IA interview on February 13th, 2 2014, refresh your recollection? 3 A. I'm asking for the question prior to this, that 4 you're asking me if my recollection is refreshed. 5 THE HEARING OFFICER: Oh, about what the 6 question is? 7 THE WITNESS: She's asking me about a question 8 and I'm asking for the question she first asked me 9 about. 10 (Record read by the court reporter.) 11 THE WITNESS: I don't know how they became 12 aware of this. 13 BY MS. CASTILLO: 14 Q. Do you know how it ended up with Captain 15 Storton? 16 A. I would be assuming. So no. 17 Q. Okay. Do you recall mentioning it to Captain 18 Staley? 19 A. I know, in my testimony to Lieutenant Proll, I 20 stated I may -- 21 Q. I'm sorry -- 22 A. Okay. No. 23 Q. So when you said that you might have, now you 24 are saying you don't remember that, though? 25 A. If you want me to answer the question, I'll be Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1683 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 587 1 happy to answer the question. You're stopping me on yes 2 or no. So I'll be happy to answer it if you'd like. 3 THE HEARING OFFICER: Well, don't -- you're 4 kind of psyching out her question. You'll have an 5 opportunity on re-direct from Mr. Palmer, who has been 6 around the block quite a bit, to explain any answers 7 that you'd like to explain. 8 THE WITNESS: Then I don't under -- could you 9 re-ask your question? 10 BY MS. CASTILLO: 11 Q. I'll just ask you an easier one. 12 Did you mention it to Captain Staley? 13 A. I don't know. I don't recall if I did or 14 didn't. 15 Q. And so in February when you were interviewed 16 and you felt like you might have, was that based on 17 anything or you just -- a feeling? 18 A. Same like now. I felt like I may have, but I 19 didn't recall if I had or hadn't, and I mentioned that 20 during the interview. 21 Q. When you said, I don't know because I might 22 have just said, hey, Chad came to me with this, you were 23 speculating? 24 A. Yes. 25 Q. Okay. And there was no evidence he's been Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1684 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 588 1 doing this on a regular basis, is your statement to the 2 IA investigator at this time, correct? 3 A. Regarding what? 4 Q. Well, you can read it, Lines 8 and 9. 5 THE HEARING OFFICER: Page 10 still? 6 BY MS. CASTILLO: 7 Q. Yes. I'm sorry. 12, where you say, "and 8 there's no evidence he's been doing this on a regular 9 basis." 10 So what were you -- the evidence that he's been 11 late? The evidence of what? What were you referring 12 to? 13 A. I assume that I was referring to him taking 14 parts of cars from collisions that he attended. 15 Q. Okay. So the whole allegation that there might 16 have been a collection? 17 A. There's no allegation, to my knowledge. 18 Q. Oh. Okay. And you didn't want to drag the 19 captain into it because why? 20 A. Into this IA because I hadn't recalled if I had 21 truly mentioned this incident to him. 22 Q. The Bentley IA is what you're referring to, 23 correct? 24 A. Well, the Bentley incident. This is prior to 25 an IA that I'm referring to. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1685 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 589 1 Q. So you didn't want to alert your supervisor 2 about the Bentley incident, correct? 3 A. That's incorrect. 4 Q. Okay. You say, on Line 10, "I don't want to 5 drag Captain Staley into it because -- I don't 6 remember." 7 A. What I was referring to was I can't really 8 remember if I had had any conversation with Captain 9 Staley regarding the conversation Chad had with me. 10 Q. Okay. And then on Line 13, when you said, "I 11 talked to him a little bit about it," when was that? 12 A. It says, "I vaguely remember my conversation 13 with Chad. I had talked to him a little bit about it." 14 Q. Right. So when was it that you had talked to 15 him a little bit about it? 16 A. I'm not even sure what I'm referring to when I 17 said, "a little bit about it." I talked to Chad a 18 little bit about something. 19 Again, the context, based on the question that 20 was asked, I'm not sure what it was referring that I 21 talked to Chad about. 22 Q. Okay. So you vaguely remember your 23 conversation with Chad, you had talked to him a little 24 bit about it, the Bentley incident. 25 Do you remember when that occurred? Was it Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1686 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 590 1 prior to the memo? Before the memo? When was it? 2 A. My conversation with Chad? 3 Q. Correct. 4 A. It was when he came in my office after he had 5 talked to Lieutenant Bledsoe. 6 Q. And when was that? 7 A. I don't remember the date. 8 Q. What year was it? 9 A. I assume it was in 2013. 10 Q. What season was it? 11 A. I don't know. I don't recall. 12 Q. So you -- okay. And then he's completing the 13 memo, right, at some point, and you're aware of that, 14 correct? 15 A. The only reason I was aware of it because I 16 walked in the office at some time, and I don't know why, 17 and he had been working on the memo. I did not ask him 18 to complete the memo. I saw him completing the memo. 19 Q. Did you read the memo as he was working on it? 20 A. No. 21 Q. How did you know what the memo was about? 22 A. I just asked what he was doing, I think, at the 23 time, in general conversation, he said he was completing 24 a memo for Captain Storton regarding the Bentley 25 incident. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1687 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 591 1 Q. It was for Captain Storton? 2 A. I believe so. 3 Q. And it was the Bentley incident, and when he 4 said the Bentley incident, that refreshed your 5 recollection that you had also been previously advised 6 of this Bentley incident prior to, correct? 7 A. Well, you're saying a lot of things that he 8 said. I don't know that he said Bentley incident, I 9 don't know that he said Bentley crash. So you're saying 10 that he said a lot of things. I don't remember exactly 11 what he said. I knew he was talking about the incident 12 that was involved when the Bentley crashed. 13 Q. Okay. But were you aware he was writing a memo 14 about his interactions with Officer Waddell? 15 A. Yes. 16 Q. Okay. And so on Page 11, going back, when you 17 say you're not sure how Keith -- is that Captain 18 Storton? 19 A. Yes. 20 Q. How he found out, unless, part of me, I can't 21 confirm this, I'm probably wrong, but for some reason, 22 you feel like you might have mentioned it to the other 23 captain. 24 So you think that if Captain Storton was aware 25 of it, it was because you had mentioned it to Captain Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1688 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 592 1 Staley -- Staley -- I'm sorry. How do I say that? 2 CAPTAIN STALEY: Staley. 3 THE HEARING OFFICER: Glad we got that cleared 4 up. 5 BY MS. CASTILLO: 6 Q. That's how the administration started the 7 internal affairs investigation? 8 A. I don't know. 9 Q. Okay. Can you go back to Page 9? 10 A. Yes. 11 Q. Can you read Lines 11 through 16? 12 A. Yes. 13 Q. And let me know when you're done. 14 A. Okay. 15 Q. Okay. So, at some point, Sergeant Pfarr tells 16 you about the Bentley incident with Officer Waddell and 17 then you hear about it through the grapevine. What does 18 that mean? 19 A. The incident? 20 Q. Well, these are your words. "I mean, just 21 through the grapevine," what does that mean? "I'm not 22 sure that there was going to be an IA." 23 A. I'll be honest with you, I'm not sure, exactly, 24 what I meant by the grapevine, maybe just that other 25 people talked about the incident, the traffic collision. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1689 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 593 1 Q. Is it the traffic collision they're talking 2 about or Officer Waddell's joke that they're talking 3 about? 4 Because if you refer up, starting at Line 3 -- 5 I'll let you take some time to go through 3 through 13. 6 Let me know when you're ready. 7 A. Okay. 8 Q. Does it refresh your recollection as to the 9 context of this -- 10 A. I think when I was -- 11 Q. Wait. Does it refresh your recollection as to 12 the context of conversation you're now having with the 13 lieutenant who is doing the internal affairs 14 investigation? 15 A. Yes. 16 Q. Okay. So at the point where Chad told you what 17 happened and he kind of felt that Officer Waddell was 18 just messing with me or messing with the new sergeant, 19 right? He informed you of that, correct? 20 A. Yes. 21 Q. And you told the IA lieutenant this, correct? 22 A. Correct. 23 Q. I'm sorry? 24 A. Yes. 25 Q. Okay. And so then after you learned of this, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1690 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 594 1 the next step with you or the next time you heard about 2 it was through the grapevine? 3 A. Yes. 4 Q. What does that mean? 5 A. More than likely, I was referring to talking to 6 Lieutenant Bledsoe, who Chad had gone to earlier, 7 mentioned the incident and probably Lieutenant Bledsoe 8 came to me at some point and said did Chad talk to you 9 about what he had shared with me regarding the Bentley 10 accident. So I assume I was referring to a later 11 conversation with Lieutenant Bledsoe. 12 Q. Okay. You've just said "more than likely" and 13 "I assume." Are you speculating as to what you're 14 talking about right now? 15 A. It's grapevine. It was a general term, and the 16 only other person that I remember having a conversation 17 with this about was Lieutenant Bledsoe. 18 THE HEARING OFFICER: But her question is, are 19 you speculating now as to whether your answer is 20 referring to Lieutenant Bledsoe? 21 THE WITNESS: Yes, I am speculating. 22 BY MS. CASTILLO: 23 Q. So we're talking about the lieutenant grapevine 24 then? 25 A. Well, if that's the way you want to look at it. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1691 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 595 1 Q. I mean, I don't -- well, are you going to agree 2 with how I want to look at it? 3 A. It's a slang term. So we don't have any 4 official grapevine term within our P.D. 5 Q. Okay. And you're not sure that there was going 6 to be an internal affairs investigation. Who's 7 determination would that be? 8 A. One of the captains and the chief. 9 Q. Okay. And then you think it kind of backed up 10 on the original issue with Sergeant Pfarr, right? 11 A. I would be speculating, but if you want me to 12 speculate, I would guess it would be. 13 Q. Well, you were speculating then with Lieutenant 14 Proll -- 15 A. Yes. 16 Q. -- because I'm reading this, right? 17 A. I'm just inferring that I would be speculating. 18 Q. Was most of your interview on the subject 19 speculation? 20 A. I remember that my recollection of the 21 incident, it had been a while and it was a short 22 conversation. So, at the time, I was doing my best to 23 recall what the conversation was between Chad and I, 24 yes. 25 Q. Okay. So -- okay. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1692 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 596 1 Do the individuals who work at the San Luis 2 Obispo Police Department have, like, LogMeIn or any kind 3 of remote access to their desktops from their phones, 4 that you're aware of? 5 A. From their phones? 6 Q. Or their home computers. Can they remote into 7 work on their desktop? 8 A. Some individuals can. 9 Q. If they did that, can they see SpeedShift that 10 way? 11 A. I would assume. I don't have that capability, 12 but I know there are a few that do and I assume they 13 have their normal desktop when they're at home. 14 Q. Okay. In order to input the shifts into 15 SpeedShift and to make the e-mail notification to the 16 officers as to who had been selected for each individual 17 date, you would have had to take down the sign-up sheet 18 that had been posted, correct? 19 A. Correct. 20 Q. So if Sergeant Pfarr said that he went and 21 looked at the posted sign-up sheet to see who had been 22 working, would that have been the truth or a lie? 23 A. He may have had a copy of the posted sign-up 24 sheet. So I can't answer that. 25 Q. No. I mean, if it was the posted one in the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1693 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 597 1 hallway that he was referring to. 2 A. Well, again, I can't answer that because if he 3 had a copy of it, he may refer to it as the one that had 4 been posted. So he could have had a copy. If his 5 statement was it was on the board still, I don't know if 6 it got put back up by somebody. I don't know. I can't 7 answer that for Sergeant Pfarr. 8 Q. Do people take the sign-up sheet that you have 9 that you usually throw away after you input it into 10 SpeedShift and then send out these e-mails, do they then 11 make copies of it or -- well, do they make copies of it, 12 that you're aware of? 13 A. No, not that I'm aware of. 14 Q. Do they dig it out of the trash and repost it, 15 that you're aware of? 16 A. I don't know. 17 Q. And if he never said copy and he was referring 18 to the one that had been posted, would that be the truth 19 or a lie? 20 A. I can't answer that. 21 Q. You don't have an opinion? 22 A. No. 23 Q. Didn't you testify that you, personally, take 24 down the posted -- like, what we wrote on Appellant's 25 Exhibit F? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1694 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 598 1 A. Yes. 2 Q. And that you, personally, input it into 3 SpeedShift? 4 A. Yes. 5 Q. And that you, personally, would then throw it 6 away? 7 A. At some point, yes, I would. 8 Q. Have you ever or can you recall a time when you 9 would ever have reposted the list, the handwritten 10 sign-up, that you had already input into the computer 11 and sent an e-mail out on? 12 A. I don't recall doing that. 13 Q. Not in your entire history as the CAT 14 supervisor who was in charge of the scheduling? 15 A. I'm not saying I didn't. I don't recall doing 16 it. 17 MS. CASTILLO: At this time, can we move 18 Appellant's F through, I think, I into evidence, just so 19 I remember to do that? 20 THE HEARING OFFICER: I believe that's right. 21 Let's just take a look here. F through I, any 22 objections? 23 MR. PALMER: No. 24 THE HEARING OFFICER: Without objection, 25 Appellant's F, G, H and I are admitted into evidence. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1695 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 599 1 MS. CASTILLO: Thank you. 2 BY MS. CASTILLO: 3 Q. Can I refer you to Appellant's Exhibit B? 4 A. Yes. 5 Q. You've previously seen this today, right? 6 A. Yes, I have. 7 Q. Okay. And this block at the top of Appellant's 8 Exhibit B looks consistent with the block at the top of 9 Appellant's Exhibit H, correct? 10 A. Correct. 11 Q. Except for the fact that instead of saying, I 12 am tracking stats, it's been changed to Lieutenant Smith 13 has been tracking stats, correct? 14 A. Correct. 15 Q. And this is because Sergeant Pfarr sent this, 16 right? 17 A. Correct. 18 Q. And he sent this on your behalf? 19 A. More than likely, yes. 20 Q. And do you recall when -- how many times 21 Sergeant Goodwin sent e-mails like this on your behalf? 22 A. I don't. 23 Q. Was there ever a time Sergeant Goodwin would 24 send an e-mail like this on your behalf? 25 A. I don't recall. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1696 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 600 1 Q. What about Sergeant Mickel? How many times has 2 he put out e-mails like this on your behalf? 3 A. I don't recall. 4 Q. Any time? Can you think of one? 5 A. I don't recall. 6 Q. Just Sergeant Pfarr has this ancillary duty for 7 you? 8 A. It was not ancillary duty. It was probably 9 done at -- I wasn't working at the time. Best of my 10 recollection, I asked him to take down the list and put 11 it out for me at this time. 12 Q. So someone other than you takes down the list 13 sometimes? 14 A. He may have taken it down this one time, yes. 15 Q. This one time? 16 A. Well, I don't recall. If you want it specific, 17 I don't recall. 18 Q. Well, at least this one time, right? 19 A. At least this one time, it appears that way, 20 yes. 21 Q. Okay. And then, perhaps, additional times, you 22 just don't remember? 23 A. I don't remember. 24 Q. Okay. So in order to send out this e-mail, he 25 would have taken down the list, copied what you had used Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1697 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 601 1 in another e-mail and then posted the dates and assigned 2 officers on your behalf, correct? 3 A. I would be assuming, but if he sent this out, 4 he, possibly, did that for me. 5 Q. And you would have asked him to do it, right? 6 A. It would have come from me, yes. 7 Q. And would you have told him to throw away the 8 handwritten sign-up sheet, also? 9 A. Not necessarily. 10 Q. What would you have done? 11 A. It would have been up to him. I might have 12 even asked him to put it on my desk. I don't recall. 13 Q. And would he have been the one who updated 14 SpeedShift? 15 A. If he assigned the officers, he definitely 16 would have had the capability of placing them into 17 SpeedShift. 18 Q. Okay. And based on our comparison of 19 Appellant's H and B, you would agree with me that 20 Sergeant Pfarr did read this paragraph because he went 21 to the trouble of changing I to Lieutenant Smith, at 22 least, in the second to last sentence, or so, right? 23 A. What am I agreeing with you about? 24 Q. Well, he read it enough to know that since he 25 was not tracking the stats of the CAT officers and he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1698 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 602 1 was sending the e-mail, that he needed to, at least, 2 read this paragraph, change I to Lieutenant Smith and 3 then send the e-mail, right? 4 A. It makes sense, yes. 5 Q. Okay. Would you also agree with me that he 6 then probably also read the part where it says, "All 7 shifts have been entered into this SpeedShift under CAT 8 OT?" 9 A. Again, it's an assumption, but I would assume 10 he would have read that. 11 Q. And, again, what you're looking at in 12 Appellant's Exhibit B is after the e-mail you sent in 13 Appellant's Exhibit H, correct? The dates are 14 thereafter in Appellant's Exhibit B? 15 A. The dates are different? 16 Q. Well, this goes from September 14th to October 17 29th, and this starts with 11/9, correct? 18 A. Correct. 19 Q. Okay. And the date on Appellant's Exhibit B, 20 the date this was sent, was November 8th, 2013, right? 21 A. Correct. 22 Q. And then, despite Sergeant Pfarr having advised 23 you of problem Officer Waddell, he was still assigned to 24 CAT overtime shifts on the 9th, 17th, 18th, 23rd, 24th, 25 26th, 1st, 8th, 9th, 10th, 15th, 16th, 22nd, 23rd, 30th, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1699 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 603 1 right? 2 A. Correct. 3 Q. And it was your testimony on direct examination 4 that in these blocks of boiler print that you may have 5 sometimes included, that there was no ambiguity that the 6 officers were not to be completing reports or conduct 7 follow-up from other regular patrol, right? 8 A. So what's the question? 9 Q. Well, you would agree that -- you testified no 10 ambiguity. You would agree that this was your intent, 11 right, don't be doing other work while you're on CAT, 12 correct? 13 A. That was my intent. 14 Q. Okay. We don't have copies of this yet. 15 THE HEARING OFFICER: That has not been scanned 16 in your magic scanner? 17 MS. CASTILLO: No. I need to scan that in the 18 magic scanner, but, no, that one was not. 19 THE HEARING OFFICER: Okay. We can do that 20 later. 21 BY MS. CASTILLO: 22 Q. Okay. So you testified on direct examination 23 that you have no memory, at all, of modifying a start or 24 end time for any specific officer via e-mail. Do you 25 remember that testimony? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1700 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 604 1 A. Yes. 2 Q. Okay. And because is that not the way you 3 would normally modify start or end times, it would be 4 in-person conversations in advance in your office, only? 5 A. No. 6 Q. Or just because you don't remember specifically 7 doing that, right? 8 A. I don't remember a specific -- I know we have 9 done it, but a specific officer, I didn't recall. 10 Q. Now, if an officer e-mailed you regarding a 11 potential modification of a CAT shift, did you always 12 reply in kind, I mean, by e-mail? 13 A. Unless they were working. There's been times I 14 would talk to them, you know, face-to-face, but -- so I 15 can't say I would always reply in e-mail. 16 MS. CASTILLO: What number are we on now? J? 17 THE HEARING OFFICER: You're up to J, yes. 18 MS. CASTILLO: Hearing officer. I have a hole 19 punch, too. 20 THE HEARING OFFICER: Okay. We're marking, as 21 J, looks like a copy of an e-mail, one page, from Kevin 22 Waddell to Jeffrey Smith, dated June 5, 2013, at 1:16 23 p.m. 24 BY MS. CASTILLO: 25 Q. Can you take a moment to review that, please? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1701 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 605 1 A. Yes. 2 Q. Was Kevin Waddell's e-mail, when he worked for 3 the City of San Luis Obispo Police Department, 4 kwaddell@slocity.org? Do you know? 5 A. Is that Kevin Waddell? Yes. 6 Q. Okay. And you would be jsmith@slocity.org? 7 A. I would be. 8 Q. Okay. I'm showing you what's been marked as 9 Appellant's Exhibit J. This looks like an e-mail from 10 Kevin Waddell, subject, CAT 6/ 6. 11 Would that refer to the CAT overtime shift on a 12 specific date, if you received that e-mail? 13 A. I would assume it would, yes. 14 Q. Okay. Do you recall replying to this e-mail -- 15 or, first, do you recall receiving this e-mail? 16 A. No. 17 Q. Do you recall replying to this e-mail? 18 A. No. 19 Q. Do you recall ever seeing this e-mail? 20 A. No. I mean, I assume I did. I don't recall 21 the date or time or when I saw this e-mail. I would 22 have received this e-mail, yes. 23 Q. Do you check your e-mail when you go to work? 24 A. Yes. 25 Q. Okay. So if an officer asked to be excused Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1702 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 606 1 from the first hour of CAT tomorrow, 11: 00 to 12: 00, is 2 this an abnormal e-mail for you to receive? 3 A. No. 4 Q. Unusual? No? Okay. 5 A. If an officer is not going to be in for a 6 shift, it's expected that they notify a supervisor. So 7 I assume that this would be consistent with either 8 coming into my office or sending me an e-mail requesting 9 to be late or be absent for a shift. 10 Q. Inconsistent or consistent? 11 A. Consistent. 12 Q. Okay. And would you have replied to this 13 e-mail? 14 A. I would either reply to the e-mail or talk to 15 him in person. 16 Q. Okay. Now, on direct examination, you talked 17 about how it was really important that the officers be 18 there this 11: 00 to 4:00 period because that was the 19 designated time for this crime that was occurring in the 20 downtown area. 21 In this e-mail, Officer Waddell is asking to be 22 excused from the first hour, which would put him 23 starting at noon, and you testified on direct 24 examination that after about half an hour, now you're 25 wondering is that going to be a good idea, correct? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1703 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 607 1 A. Yes. 2 Q. Did you approve this? 3 A. More than likely, I did. 4 MS. CASTILLO: Okay. I would ask that 5 Appellant's Exhibit J be entered. 6 THE HEARING OFFICER: Any objection to J? 7 MR. PALMER: Can I reserve on that? 8 THE HEARING OFFICER: You can. Take it up 9 later. Go ahead. 10 MS. CASTILLO: This will be a two-page exhibit 11 that I'm now marking as Appellant's Exhibit K. Hearing 12 officer, please. 13 THE HEARING OFFICER: Copy of another e-mail, 14 or a couple of them, maybe, I'm not sure. Appellant's K 15 is from Jeffrey Smith to Kevin Waddell regarding CAT 16 12/ 21, and the date is December 11, 2013. 17 BY MS. CASTILLO: 18 Q. Okay. You're familiar how e-mails read, where 19 the most recent is at the top and the previous e-mail 20 that would have been forwarded would have been at the 21 bottom? 22 A. Yes. 23 Q. Okay. So in looking at the first page of 24 Appellant's Exhibit K, do you see the forwarded message 25 from an individual by the name of Jason Dickle? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1704 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 608 1 A. I do. 2 Q. With the e-mail address of jdickle@slocity.org? 3 A. Yes. 4 Q. Is that an officer who works for you? 5 A. Yes. 6 Q. Is that an officer who has worked CAT shifts? 7 A. Yes. 8 Q. In December 2013, there was an e-mail exchange 9 between him and Officer Waddell regarding wherein the 10 subject line says CAT 12/ 21. Do you see that? 11 A. Yes. 12 Q. Where Officer Dickle is asking Officer Waddell 13 if he wants his CAT shift of 12/ 21 of 2013. Do you see 14 that? 15 A. Yes. 16 Q. And that would have been after the October 19th 17 allegations of lying about coming in late and blanket 18 authorization, right? 19 A. Yes. 20 Q. Okay. And Officer Dickle says, "Do you want my 21 CAT shift? If so, e-mail to lieutenant or whoever needs 22 to know." 23 Who would the other person be if it wasn't you, 24 the lieutenant, whomever needs to know? Would that be 25 the person who is sergeant that day? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1705 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 609 1 A. Yes. 2 Q. Okay. So then you go up and you see December 3 3rd, right? 4 A. Yes. 5 Q. And you see an e-mail from Officer Waddell to 6 yourself, correct? 7 A. Uh-huh. Yes. 8 Q. "CC this, Officer Dickle," right? 9 A. Yes. 10 Q. And Officer Waddell says, "I'm not sure if I 11 would be next in line." Is that referring to his 12 seniority? 13 A. Yes. 14 Q. "Or if there's a more senior person ahead of 15 me, but if not, I will take it if eligible, Kevin." Do 16 you recall receiving this? 17 A. No. 18 Q. Do you see where, on December 11th, 2013, you 19 replied to Kevin Waddell, "Sorry for the delay. I put 20 you down for the shift"? 21 A. Yes. 22 Q. Is that consistent with something you would 23 have done via e-mail to arrange this scheduling for CAT 24 12/ 21? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1706 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 610 1 Q. Okay. Can you look at Page 2 of Appellant's 2 Exhibit K? 3 A. Yes. 4 Q. Do you see where Kevin Waddell would have 5 responded to Officer Dickle, saying, "I finally heard 6 back from him yesterday. He approved it. I am working 7 it"? 8 A. Yes. 9 Q. And this was in response to his December 12th 10 e-mail saying, "Did he approve the change? Are you 11 working the shift?" 12 A. Yes. 13 Q. Okay. Does it normally take you -- okay -- 14 nine days to respond in terms of shift-scheduling? 15 A. Normally, no. 16 MS. CASTILLO: I ask that Appellant's K be 17 moved into evidence. 18 THE HEARING OFFICER: Any objection to K? 19 MR. PALMER: Reserve, please. 20 THE HEARING OFFICER: Okay. 21 MS. CASTILLO: Appellant's Exhibit L is being 22 marked. Hearing officer. 23 THE HEARING OFFICER: L looks like a one-page 24 copy of an e-mail from Jeffrey Smith to Kevin Waddell 25 regarding CAT 12/ 15, and the date is December 12th, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1707 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 611 1 2013. 2 BY MS. CASTILLO: 3 Q. Do you need a moment to review this? 4 A. I'm good. 5 Q. Okay. On December 11th, it looks like this was 6 an e-mail sent from Officer Waddell to yourself 7 regarding the CAT shift at 12/ 15. Do you see that? 8 A. Yes. 9 Q. And it says he's had unforeseens come up and he 10 needs to leave early. Do you see that? 11 A. Yes. 12 Q. And you've testified that the shift ends at 13 16: 00, correct? 14 A. Yes. 15 Q. So this would be an hour early, correct? 16 A. Yes. 17 Q. So it says, "Officer Waddell indicates that if 18 it doesn't work out for you, he's okay with letting the 19 shift go or attempting to find someone else to cover for 20 him." Do you see that? 21 A. Yes. 22 Q. Is this consistent with e-mail conversations 23 that you would have had via e-mail in terms of 24 scheduling or modification of this CAT assignment? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1708 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 612 1 Q. Okay. And your response on December 12 is, 2 "That is fine." Do you see that? 3 A. Yes. 4 Q. Now, is that in response to, "If this is not 5 work, I'm okay with letting the shift go," or is that in 6 response to, "or attempting to find someone else to work 7 the shift"? Because he asks what the preference would 8 be. 9 A. It was -- I was referring to that's fine with 10 him getting off at 15: 00. 11 Q. Okay. Where does it say that that is fine is 12 in response to getting off at 15: 00 versus letting the 13 shift go or attempting to find someone else to work the 14 shift if these were very finite 11: 00 to 4:00 hours? 15 A. It doesn't. It's a reply to his original 16 question. 17 Q. And it says that where? 18 A. "That is fine." 19 Q. Which is fine? 20 A. That he get off at 15: 00. 21 Q. That's how you're interpreting your response to 22 his three questions? 23 A. Yes. 24 Q. Okay. 25 MS. CASTILLO: Can I move Appellant's Exhibit L Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1709 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 613 1 into evidence, please? 2 THE HEARING OFFICER: Any objection to L? 3 MR. PALMER: Reserve. 4 THE HEARING OFFICER: Okay. 5 BY MS. CASTILLO: 6 Q. Now, on Appellant's Exhibit L, where you say, 7 "That is fine," and your response is regarding him 8 leaving early at 15: 00, right, and that's your 9 testimony, that that was what you were okaying, correct? 10 A. Correct. 11 Q. Where do you CC the shift sergeant, or was it 12 you that would be there on 12: 15? 13 A. I would have e-mailed them or updated 14 SpeedShift because, at the beginning of the shift, I 15 believe there's a note and it shows when people are 16 working and that's how shifts are entered into our 17 system that day. 18 Q. Okay. So your testimony is that, regarding 19 this CAT shift on 12/ 15, if I subpoenaed records, it 20 would show that you had modified that Officer Waddell 21 would be leaving at 15: 00? 22 MR. PALMER: Objection. Speculation. 23 MS. CASTILLO: Well, I'm asking. 24 THE HEARING OFFICER: Well, if you know. 25 THE WITNESS: I don't know. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1710 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 614 1 BY MS. CASTILLO: 2 Q. Is that something you would do? 3 A. I would either e-mail the sergeant or update 4 SpeedShift or do both. 5 Q. Okay. But because you didn't CC him, are you 6 saying you would have now forwarded what has been marked 7 as Exhibit L to his sergeant on that date? 8 A. I could have or I could have composed a new 9 e-mail. 10 Q. So there's going to be an e-mail that shows 11 that this was okay to the sergeant who was working on 12 that date if it wasn't you, right? 13 A. Not necessarily. 14 Q. Well, how would they know that it was okay for 15 him to leave at 15: 00? 16 A. I could have verbally told him. 17 Q. There's all kinds of possibilities, right? 18 A. Yep. 19 Q. Are time cards approved by your e-mail or by 20 SpeedShift? 21 A. We have a separate time card program. 22 Q. What's that called? 23 A. Right now, it's Intel Time. 24 Q. What was it called in 2013? 25 A. Gee, what was it called? I don't remember. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1711 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 615 1 THE HEARING OFFICER: If you don't remember, 2 you don't remember. 3 THE WITNESS: Sorry. 4 BY MS. CASTILLO: 5 Q. Now, looking at the two-page document that I 6 just marked as Exhibit J, you see this again? 7 A. Yes. 8 Q. Where he is asking for modification on 6/ 6? 9 A. Yes. 10 Q. Where he wants to be excused from the first 11 hour, 11: 00 to 12: 00, that would have him coming in at 12 noon, right? 13 A. Correct. 14 Q. Okay. And, finally, he hears back nine days 15 later. 16 What sergeant watch commander would you have 17 CCd if, on this date, you were not working? 18 A. I don't recall. 19 Q. So -- but you're saying that there would either 20 be a new e-mail, a forwarded e-mail or you may have 21 verbally told them? 22 A. Correct. 23 Q. Any other written manner in which you would 24 have documented, hey, if I'm not here, you don't have to 25 call me at home because it's going to be written Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1712 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 616 1 somewhere? 2 A. I'm not sure what you're asking. 3 Q. Well, Sergeant Pfarr usually calls you at home, 4 when he has concerns when you're not working, on your 5 department cell phone, correct? 6 A. He called me -- yeah. He would call me at home 7 if there's a problem, yes. 8 Q. Okay. But there could be somewhere where you 9 would write, Officer Waddell is excused and he's coming 10 in at noon and it's okay and I've approved it and you 11 don't need to call me at home if this is a day I'm not 12 working, where would that be? 13 A. You're saying I produced something that I 14 wouldn't produce. I might, again, update SpeedShift 15 and, when they check in the morning, I might send an 16 e-mail or I might talk to him, verbally. 17 So there's a number of things that could have 18 happened to notify a supervisor that they were going to 19 come in later. 20 Q. So if I had subpoenaed records from SpeedShift, 21 there might be regarding the CAT shift on 6/ 6, you have 22 gone in as an administrator and indicated that Officer 23 Waddell will be coming in at noon, not 11: 00, right? 24 A. I'm not saying that there will be. I could 25 have. I might not have. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1713 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 617 1 Q. Well, if you didn't do this, even though you 2 approved it, and the sergeant is working instead of you, 3 and he doesn't call you at home, how would he have found 4 out that you had approved it for him to come in an hour 5 late? Do you know? 6 A. I don't recall for that date. 7 Q. For any date. 8 A. Again, I've given you several ways he could 9 have found out. I don't recall. Again, it depends on 10 they could have been working that day and there could 11 have been a conversation in the hall. 12 Q. So what you're saying is it could have been a 13 conversation that no one in this department is ever 14 going to remember because there's no documentation? 15 MR. PALMER: Objection -- 16 THE HEARING OFFICER: That's argumentative. 17 You've made your point. I would move on to something 18 else. 19 MS. CASTILLO: I'm ready to. Can I ask for J 20 to be moved in, if I already haven't? 21 THE HEARING OFFICER: I think we've moved J, K 22 and L, and we'll deal with the objections later, if 23 there's any. 24 BY MS. CASTILLO: 25 Q. Okay. On direct, you said you tried to be Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1714 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 618 1 accommodating, 11: 15 is okay, 11: 30 is okay, but after 2 11: 30 is probably a problem, right? 3 A. Could be, yes. 4 Q. Is that only a problem for you or is it not a 5 problem for the other supervisors? 6 A. When I say it was probably a problem, it would 7 be a problem if it was a consistent thing. On an 8 occasion, if it happened, I try to be accommodating. 9 Q. So a consistent thing would be the pattern that 10 you were talking about in your internal affairs 11 investigation that Sergeant Pfarr was referring to? 12 A. No. 13 Q. What would be this consistent thing? 14 A. Well, what Sergeant Pfarr was referring to was 15 him coming in late or leaving early without permission. 16 If somebody has asked and has a reason and I have 17 approved it, then it's not a problem. 18 Q. So is it your testimony that even though 19 Sergeant Pfarr couldn't give you actual dates and times 20 that he had seen him leave or come in in order to say, 21 Lieutenant Smith, I witnessed it on this date, was that 22 one of those dates in those e-mails that we've just 23 talked about, that's what you're talking about? 24 A. I don't know what you're asking. 25 Q. That's fine. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1715 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 619 1 We've heard the word, blanket, a lot in this 2 hearing. Do you know whose term, blanket authority, 3 was? 4 A. No. 5 Q. Did you ever hear those words from Officer 6 Waddell? 7 A. No. 8 Q. So who first -- but you don't know -- it wasn't 9 Officer Waddell, but do you know if it was Sergeant 10 Pfarr? 11 A. I don't know what you're talking about, 12 blanket. I haven't been in here on the testimony. 13 Q. Okay. But you used the word, blanket 14 authority, or you were asked was there blanket 15 authority, and you knew what that question was about, 16 right? 17 A. Again, I would like to hear the whole question 18 to refresh what we're referring to when we say blanket. 19 It wasn't a term I used. 20 Q. And you don't remember that term from Officer 21 Waddell, either, correct? 22 A. Officer Waddell talking to me about that term? 23 Or your question is vague. So I'm not sure what you're 24 asking regarding Officer Waddell. 25 Q. When Mr. Palmer asked you on direct Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1716 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 620 1 examination, did you give blanket authority to Officer 2 Waddell to come in or go early, whenever, meaning you 3 just had permission, did you understand that question? 4 A. Yes. 5 Q. Okay. When he used the word, blanket, you knew 6 what he was referring to, right? 7 A. Yes. 8 Q. Okay. Do you know where that term first -- did 9 it first appear in your internal affairs investigation? 10 Did Sergeant Pfarr say did you give him blanket 11 authority? Do you know or remember where you first 12 heard the word, blanket, being a descriptive term for 13 this permission that we're discussing? 14 A. I think it was -- when I first heard it, it was 15 when counsel kind of approached it with me in terms of 16 just his way of generalizing did he have permission from 17 me. 18 THE HEARING OFFICER: You're referring to 19 Mr. Palmer? 20 THE WITNESS: Yes, sir. 21 THE HEARING OFFICER: Okay. 22 BY MS. CASTILLO: 23 Q. And your testimony was no because that would be 24 contrary to the goal of the program, right? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1717 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 621 1 Q. But your previous testimony was 11: 15, 11: 30 2 would be okay, not contrary to the goal of the program, 3 right? 4 A. What's your question? 5 Q. In terms of an accommodation. 6 A. Can you ask the question again? 7 Q. You believe that the officers needed to be 8 present for this CAT shift because it was an important 9 shift and these times, 11: 00 to 4:00, were the specific 10 times that were required and, therefore, some kind of 11 blanket authority to flex beyond this 11: 00 to 4:00 12 period would be contrary to the goal of the program. 13 Is that an accurate paraphrasing of your 14 testimony? 15 A. Yes. 16 Q. And -- but when you said 11: 15 would be an okay 17 accommodation and 11: 30 would be an okay accommodation, 18 those accommodations would not necessarily be contrary 19 to the goal of this program, agreed? 20 A. For -- again, making considerations for, you 21 know, circumstances that come in? No. Again, I try to 22 be accommodating. These are overtime shifts. So if 23 officers have some challenges, our goal was to fill the 24 shifts, ultimately. So if we didn't have other officers 25 or they had special circumstances, I would definitely Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1718 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 622 1 accommodate them if I could. 2 Q. And sometimes you would agree with me that 3 these special circumstances that require accommodation 4 don't arise three to four days in advance, right? 5 A. I would agree. 6 Q. Sometimes they arise an hour before your shift, 7 correct? 8 A. There's times where officers have issues that 9 come up an hour before their shift, yes. 10 Q. Maybe even 20 minutes before your shift, 11 correct? 12 A. Again, it depends on -- it might happen, sure. 13 Q. Okay. Now, you testified that you asked 14 Sergeant Pfarr to monitor this perceived pattern that 15 Officer Pfarr had noticed in terms of lateness, coming 16 and going. 17 Did you also, in turn, monitor Officer Waddell 18 when you were supervising the CAT shift without the 19 assistance of a sergeant watch commander? 20 A. Um, I may have watched for when he was coming 21 to work on the days that I was working to ensure that he 22 was at work on time. 23 Q. Okay. And there's -- do you have any notations 24 of dates he might have been a little late? 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1719 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 623 1 Q. Okay. Why is it that you recall mowing your 2 lawn on October 19th? 3 A. Because I remember missing the call and I had 4 the phone in my pocket, but because my lawn mower is 5 loud, that's why I missed the call. Because I try to 6 always have my work phone with me in case I'm needed for 7 some reason. 8 Q. Are you on on-call standby? 9 A. In my position, you're always on-call. 10 Q. That's not what I asked you. 11 Are you getting paid to have your work phone 12 with you on your days off? 13 A. It's one of the expectations as a lieutenant, 14 yes. 15 Q. And he called -- it's your testimony that he 16 called your work phone, your work cell phone, right? 17 A. Um, I assume it was. I had two phones. So, 18 again, I'm assuming it was my work cell phone, but I 19 don't recall, specifically, which one he called on. 20 Q. But he left you an e-mail -- or I'm sorry -- a 21 voicemail first; that's your testimony? 22 A. Yes. 23 Q. And it was about Officer Waddell, right? 24 A. Yes. 25 Q. And you saved that voicemail, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1720 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 624 1 A. No. 2 Q. Anyone from the internal affairs office that 3 was doing this investigation ask you for that voicemail? 4 A. No. 5 Q. Did you offer it, in any way? 6 A. No. 7 Q. Did you delete it right away? 8 A. I don't recall. 9 Q. And your testimony is that, within 30 minutes 10 to an hour, you called him back, correct? 11 A. That was to the best of my recollection, yes. 12 Q. Okay. And that 30 minutes to an hour would 13 have put you around 11: 00 or 11: 30, right? 14 A. I would disagree with that statement because 15 I'm assuming that Sergeant Pfarr would have called close 16 to 11: 00 if that was the time Officer Waddell was 17 supposed to be working. 18 So, again, I was estimating that it was early 19 afternoon. So I'm assuming that he probably called me 20 close to 11: 00 since Officer Waddell was not there. So 21 my return call could have been anywhere from 11: 30 to 22 12: 00. 23 Q. So your testimony is now that the 30 minutes to 24 an hour that you called him back was not close to 11: 00 25 or 11: 30, that's, actually, when you received the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1721 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 625 1 voicemail? 2 A. It was within 11: 00 and 12: 00. How's that? 3 Q. That works for me. 4 A. Thank you. 5 Q. Did you ever cancel any of the shifts that 6 Officer Waddell was scheduled for on this CAT overtime 7 because of him being a problem officer? 8 A. Not that I recall. 9 Q. Now, you have this telephone call with Sergeant 10 Pfarr on the 19th, correct? 11 A. Correct. 12 Q. And are you in your front yard and holding your 13 lawn mower? 14 A. Um, more than likely, I was in my backyard. 15 Q. Okay. In your backyard with your lawn mower 16 when you have this conversation? 17 A. I think I was on my back patio. 18 Q. After this conversation with Sergeant Pfarr, 19 did you document the conversation, in any way? 20 A. No. 21 Q. And Sergeant Pfarr conveys to you that Officer 22 Waddell said, the previous day, he had spoken to you and 23 you had approved it, and that was the gist of the 24 conversation, that you recall? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1722 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 626 1 Q. And the first time that you were interviewed 2 about this is when? 3 A. November 15th. 4 Q. A month later? 5 A. Yes. 6 Q. And although you believe that he lied to 7 Sergeant Pfarr, you continue to schedule him for these 8 CAT overtime shifts, correct? 9 A. Correct. 10 Q. Okay. Now, referring you to October 18th. 11 Okay? 12 A. Okay. 13 Q. On this date, you see him in the locker room, 14 correct? 15 A. Correct. 16 Q. And you remember that it's probably 3:30, or 17 so, because that's at the point where you're now getting 18 off of work, correct? 19 A. That's when I get off of work. So I was 20 assuming if I got off work on time, it would have been 21 around that time I would have been in the locker room. 22 Q. Could you have gotten off work earlier that 23 day? 24 A. Anything's possible. 25 Q. Could you have worked later that day? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1723 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 627 1 A. Possible. 2 Q. Okay. And that you -- I'm sorry -- Officer 3 Waddell is sitting on the bench in his street clothes? 4 A. Correct. 5 Q. And why do you know that they're his street 6 clothes? 7 A. I believe it was jeans or something. It wasn't 8 a uniform. 9 Q. Do you know that it wasn't a uniform and, 10 therefore, it was street clothes? I'm just trying to -- 11 A. It just wasn't a uniform, how I would put it. 12 It wasn't a uniform. 13 Q. And you see that he's texting? 14 A. Correct. 15 Q. And why do you think he's texting? 16 A. He had his phone out and he was actively 17 looking at it and pushing the screen. 18 Q. And that means he's texting, to you? 19 A. That was my assumption at the time, yes. 20 Q. And you're changing, right? 21 A. I was getting ready to leave. So I was 22 changing my uniform, yes. 23 Q. So are you watching him the entire time you 24 were changing your clothes? 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1724 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 628 1 Q. And you have this conversation with him, and 2 it's hi and hi, correct? Pleasantries, is what we 3 described it as earlier. 4 A. Yeah, when I walked in. 5 Q. And, at some point, he takes a phone call? 6 A. Towards the end, to my recollection, he had 7 called somebody or taken a call. I don't know which way 8 it was. 9 Q. You don't know if the phone rang? 10 A. I don't remember. 11 Q. But you know that he was in his street clothes? 12 A. Yes. 13 Q. And did you hear who he was talking to or did 14 you form an opinion on that? 15 A. No. 16 Q. Okay. And you hear him on this call until you 17 left the locker room. Approximately, how long did this 18 call last or how long were you left in the locker room? 19 A. Which one do you want me to answer? 20 Q. Whichever you know the answer to. 21 A. I'm, typically, in the locker room maybe five 22 or ten minutes to change. 23 Q. I know, but I'm asking, if you remember, how 24 long was he on the phone before you left the locker 25 room? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1725 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 629 1 A. I have no idea. 2 Q. Okay. On October 18th, you had already been 3 advised by Sergeant Pfarr of these lateness issues that 4 were causing Sergeant Pfarr concern, correct? 5 A. Correct. 6 Q. And prior to the time that Officer Waddell got 7 on the cell phone, did you take the opportunity to 8 discuss with him Sergeant Pfarr's concerns that had been 9 brought to your attention? 10 A. No. 11 Q. Did you say it has been alleged that you have 12 an issue getting to work on time for this CAT shift or 13 that you are leaving early without permission? 14 Do you have any kind of conversation in the 15 locker room before Officer Waddell got on the phone, 16 talking, in any way? 17 A. No. 18 Q. Did you talk to him about this movie that you 19 were aware of? 20 A. No. 21 Q. And, approximately, around this time in 22 October, how often do you see Officer Waddell on a 23 regular basis? 24 A. I don't know. 25 Q. Okay. Does he work a lot of CAT overtime? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1726 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 630 1 A. He does. 2 Q. Okay. Does he work a day shift around this 3 time? 4 A. Uh, was he on day bikes at that time? I 5 believe, yeah, he was assigned to day bikes. 6 Q. So if he wasn't working the CAT shift, he would 7 be working a day shift, and you were also working a day 8 shift, correct? 9 A. Correct. 10 Q. So you would agree with me that you're not on 11 opposite shifts on opposite days as Officer Waddell, 12 right? 13 A. Correct. 14 Q. So you have a lot of opportunity to actually 15 see him or -- well, do you have an opportunity to see 16 him? 17 A. Yes. 18 Q. Do you have opportunity to call him into your 19 office to talk to him about these concerns that have 20 been brought to your attention? 21 A. Did I have the opportunity or could I have had 22 the opportunity? 23 Q. First, let's say, did you? 24 A. I had asked -- I had told Sergeant Pfarr to 25 handle it, which was my expectation. So I had no Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1727 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 631 1 intention of calling Kevin into my office. 2 Q. And you did not, correct? 3 A. I did not. 4 Q. Okay. So then you have this conversation with 5 Sergeant Pfarr where he tells you that Officer Waddell 6 is alleged to have said that he had this conversation 7 with you on the 18th where you approved him coming in 8 late, correct? 9 A. Correct. 10 Q. Okay. And that, during this conversation with 11 Sergeant Pfarr, he indicates that he wants to think 12 about it, right? 13 A. Think about -- yeah. The incident, the entire 14 incident. 15 Q. And what did he want to think about? Did he 16 clarify that with you? 17 A. Again, I wanted him to be sure that what his 18 conversation was with Officer Waddell and if he felt he 19 needed to call him in and clarify. 20 So, again, I hadn't seen the text and I wasn't 21 present during any of their conversations. So I wanted 22 him to be sure that there was no misinterpretation or 23 anything like that. So I think I'm assuming he wanted 24 to think about the totality of the event. 25 Q. Okay. And then you got off the phone with him, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1728 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 632 1 correct? 2 A. Correct. 3 Q. And, at some point, you take another phone call 4 with him, correct? 5 A. Correct. 6 Q. And is that because he calls you back or you 7 call him? 8 A. I believe that he was calling me back. 9 Q. Okay. And does he tell you that he called in 10 Officer Waddell and had this clarity with him? 11 A. Uh, I don't recall our exact conversation, but 12 what I do recall is that he was going to complete a memo 13 regarding this, and he may have said something about 14 calling Officer Waddell in. I don't remember our exact 15 conversation. 16 Q. Okay. So you can't testify today whether or 17 not you're aware if Sergeant Pfarr called him back in 18 after he thought about it and any questions he might 19 have to clear the matter up? 20 A. I don't know what Sergeant Pfarr's events were 21 during that day. 22 Q. But Sergeant Pfarr did call you back and 23 indicated to you that he believed that Officer Waddell 24 had blatantly lied to him, correct? 25 A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1729 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 633 1 Q. And that a memo would be drafted, right? 2 A. Right. 3 Q. Did you order Sergeant Pfarr to write a memo? 4 A. No. 5 Q. So he did this on his own? 6 A. Yes. 7 Q. If he testified that you ordered him to write a 8 memo, would that be a truth or a lie? 9 A. I don't know. It's Sergeant Pfarr's 10 interpretation. So I can't speak to what Sergeant Pfarr 11 perceived during our conversation. 12 Q. Okay. Do you have a copy in front of you in 13 the Appellant's -- I'm sorry. Can we just get the 14 appellant's November 15th copies? 15 THE HEARING OFFICER: What are we looking 16 for? 17 MS. CASTILLO: A new exhibit. 18 THE HEARING OFFICER: Oh. 19 MS. CASTILLO: This will be L. 20 THE HEARING OFFICER: We are up to M. 21 MS. CASTILLO: Oh, M? Okay. This will be 22 marked as Lieutenant Jeff Smith November 15th interview. 23 This is the February 13th one. They're in those. 24 BY MS. CASTILLO: 25 Q. Did you also read your November 15th transcript Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1730 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 634 1 this morning at 7:00 a.m.? 2 A. I wasn't provided that one. 3 THE HEARING OFFICER: So just for the record, 4 Appellant's M looks like it's the certified version of 5 the transcript of the interview of Lieutenant Smith on 6 November 15th. 7 BY MS. CASTILLO: 8 Q. What transcripts were you provided? 9 A. It's two interviews with Lieutenant Bledsoe, 10 and then I had one other transcript -- the one 11 transcript with Lieutenant Proll. 12 Q. Three interviews, right? 13 A. Yeah. 14 Q. Was one of those transcripts, that you were 15 provided by the counsel for the city, the November 15th 16 interview that is marked as the Department's 13? 17 A. Is this the second one with Lieutenant Proll? 18 Q. No. This is the interview with -- 19 A. With Lieutenant Bledsoe? 20 Q. Right. 21 A. Okay. Yeah. I was getting confused with 22 February, for some reason. So, yes, I do have that 23 second interview with Lieutenant Bledsoe. 24 THE HEARING OFFICER: I'm sorry. I'm looking 25 at Appellant's M. Is this an interview by Bledsoe or by Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1731 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 635 1 Proll? 2 BY MS. CASTILLO: 3 Q. This would be by Bledsoe, correct? 4 THE HEARING OFFICER: Is that right? 5 THE WITNESS: If it was the second interview 6 with Lieutenant Bledsoe, yes. 7 THE HEARING OFFICER: I'm not seeing Bledsoe's 8 name or anybody's name on here. That's why I'm asking. 9 THE WITNESS: November 15th one would have been 10 with Lieutenant Bledsoe. 11 BY MS. CASTILLO: 12 Q. So I'm going to refer you to Page 3. 13 A. Okay. 14 Q. So after you have this -- so the first time you 15 have the conversation with Sergeant Pfarr and he learns 16 from you that you did not specifically give Officer 17 Waddell specific permission to be late on the date 18 prior, Sergeant Pfarr gets upset, correct? 19 A. Yes. 20 Q. Okay. And then he says, Officer Waddell lied 21 to me, right? 22 A. I don't remember if that was the exact words, 23 but he indicated that Officer Waddell lied to him. 24 Q. Okay. And then you and he discussed how to 25 proceed from there because, at this point, you believe Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1732 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 636 1 it's, potentially, a misunderstanding. Is that what you 2 told Lieutenant Bledsoe? 3 A. I look at everything objectively, and when I 4 talk to my sergeants regarding problems or concerns, I 5 try to look at all aspects and I want to make sure that 6 he has done the same thing. So I didn't know if it 7 was -- again, I was encouraging him to review what had 8 happened prior to that coming in. 9 Q. Okay. And then in Line 6, that's where you 10 say, "I'm not sure if it was a misunderstanding. It 11 could have been a miscommunication," correct? 12 A. Correct. 13 Q. And is that consistent with you referring him 14 back to, maybe, call Officer Waddell in to see if there 15 was, maybe, some clarification that could be made, 16 right? 17 A. I left it up to him, but I wanted him to just 18 review the facts. 19 Q. Okay. And then -- so then you trust Sergeant 20 Pfarr to handle it appropriately, right? 21 A. Correct. 22 Q. What does that mean, exactly? Does that mean 23 counsel him if he lied to him or referred up the chain 24 of command to start an internal affairs investigation? 25 What does handle it appropriately mean? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1733 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 637 1 A. It really depends on what he finds out during 2 his discussion or review of the incident that occurred. 3 Obviously, if it's a lie, then it needs to be addressed, 4 and that's where he and I decided he should complete a 5 memorandum. 6 Q. Okay. Did you jointly decide that? 7 A. Well, he called to confer with me and said he 8 was going to do that and I agreed with him on the phone, 9 that based on what he was telling me, he should write a 10 memo. 11 So when one of my sergeants call me to, kind 12 of, go over where they're going to proceed in their 13 actions, it, typically, is an agreement or I'm 14 concurring with, you know, their direction. 15 Q. Okay. So on Lines 13 and 14 where you tell the 16 IA investigator that he decided that he was going to 17 write a memo, that's your recollection, correct? 18 A. Yes. 19 Q. So if Sergeant Pfarr testified on day one that 20 you directed him to write a memo, is that true or false? 21 MR. PALMER: It's been asked and answered. 22 THE HEARING OFFICER: I think we've already 23 been there. 24 BY MS. CASTILLO: 25 Q. But then regardless of who decided to do it, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1734 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 638 1 you ask him to submit it to you to go through the chain 2 of command, correct? 3 A. Correct. 4 Q. And he then indicated at that point that he had 5 very strong feelings that there was a blatant lie, 6 correct? 7 A. Correct. 8 Q. And then as Sergeant Pfarr is telling you this, 9 you tell Sergeant Pfarr that you believe he has handled 10 it appropriately, right? 11 A. Yes. 12 Q. Okay. And that you would get the memo when you 13 returned to work, correct? 14 A. Correct. 15 Q. And that would have been the 21st, right? 16 A. Yes. 17 Q. And that was the day that you spoke to Kevin 18 Waddell, right? 19 A. That Kevin Waddell spoke to me, yes. 20 Q. Had a conversation with? 21 A. Yes. 22 Q. And Sergeant Pfarr wrote this memo to you on 23 the 19th, right? 24 A. Correct. 25 Q. So when did you get the memo? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1735 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 639 1 A. I don't remember the exact date, whether he 2 had -- if it was in my desk or if it was in my office 3 when I came in there or he brought it to me at a later 4 time or gave it to me the following day, I don't 5 remember when I got the memo. 6 Q. Did you have the memo on your desk when you had 7 the conversation with Officer Waddell? 8 A. I don't recall. 9 Q. Did you look at the attached text message 10 exhibit prior to having the conversation with Officer 11 Waddell? 12 A. I don't believe I had seen the text at that 13 time. 14 Q. It was attached to the memo, correct? 15 A. Yes. 16 Q. Had you seen the text message and/or the memo, 17 or -- strike that. 18 Did Sergeant Pfarr ever read you the content of 19 the text message over the phone? 20 A. I don't remember. 21 Q. Okay. When you had the conversation with 22 Officer Waddell and your testimony is that it took place 23 on the 21st, you believe that he approached you? 24 A. Yes. 25 Q. Okay. What time was that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1736 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 640 1 A. I don't remember. 2 Q. And was the office door open or shut? 3 A. When he approached me or during the 4 conversation? 5 Q. During the conversation. 6 A. I believe Officer Waddell shut the door when he 7 came in to talk to me. 8 Q. Okay. And can you look at Page 5 -- 9 A. Yes. 10 Q. -- Line 19 through 22? 11 A. Yes. 12 Q. So when you were interviewed on November 15th, 13 your testimony or your statement to the IA investigator 14 was that you already had the memo regarding the 15 incident, right? 16 A. That he had submitted a memo to me regarding 17 the incident, yes. 18 Q. Which means you possessed it, right? 19 A. I assume I did at the time, yes. 20 Q. Okay. And you forgot that you read that this 21 morning? 22 A. It means that I didn't remember reading it or 23 if I had or hadn't or where the memo was. I'm just 24 saying submitted. 25 Q. And you said that that conversation could not Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1737 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 641 1 be privileged. What do you mean by that? 2 A. Well, if the captains and the chiefs decided 3 that it needed to be an IA and I was questioned 4 regarding the IA, anything he told me at the time would 5 be divulged in an internal investigation. 6 Q. Because you don't normally have privileged 7 communications, right? 8 A. That's correct. 9 Q. Okay. Did you pull out a recorder and start 10 recording when Officer Waddell indicated that he wanted 11 to make these statements after you had made advisals to 12 him? 13 A. No. 14 Q. Did you, after he made these statements to you, 15 send off an e-mail indicating what had just been said? 16 A. No. 17 Q. Did you write notes of any kind? 18 A. No. 19 Q. Did you author a memorandum? 20 A. No. 21 Q. Okay. And you've said he needed to get 22 something off his chest. Is that a direct quote? 23 A. No. 24 Q. What is that? Is that what he -- I mean, if 25 it's not a direct quote, what do you mean by that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1738 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 642 1 A. It was a generalization of what I recall him 2 coming in to talk about, that he had said something to 3 that effect, but I didn't want to say it was a direct 4 quote because I don't remember exactly what he said to 5 me at that time. 6 Q. Well, did he come in and say, I need to talk to 7 you, or did he say, I need to get something off my chest 8 because it's really bothering me? 9 When you tell the IA investigator that he 10 needed to get something off his chest, what do you mean 11 by that? 12 A. That he had used some term similar to that. I 13 don't know if that was that exact term or something 14 similar when he came to talk to me. 15 Q. And your testimony to the IA investigator was 16 that Officer Waddell said to you he was willing to 17 accept the consequences that were to follow? 18 A. Yes. 19 Q. And there was no memorandum or documentation of 20 this admission of dishonesty? 21 A. I hadn't investigated, nor was I investigating 22 it. So, at that time, I wasn't going to complete a 23 memorandum because I wasn't present during the 24 conversation with Officer Pfarr. 25 Q. Okay. But you said, the page before, that if Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1739 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 643 1 Officer Waddell talked to you, that anything he said was 2 not going to be privileged and that if it went to an IA, 3 it would be disclosed, right? 4 A. Correct. 5 Q. So you were going to wait to see if there was 6 an IA to disclose whether or not he had just made an 7 admission to dishonesty to you? 8 A. I didn't know that he made an admission of 9 dishonesty to me. 10 Q. Well, let me ask you. When you had the 11 conversation with Sergeant Pfarr and Sergeant Pfarr said 12 this is what Officer Waddell said you said, and you 13 disagreed with that, right? 14 A. What's the question? 15 Q. That Kevin had said, specifically, I got 16 permission to come in late, right? Do you remember that 17 part? 18 A. That Sergeant Pfarr relayed that to me, I do 19 remember, yes. 20 Q. And you disagreed that that was the truth, 21 right? 22 A. Correct. 23 Q. And now it is your testimony that Officer 24 Waddell came in and said he needed to unburden himself 25 and was going to accept the consequences that were going Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1740 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 644 1 to follow this admission, right? 2 A. Yes. 3 Q. Okay. And that it was only if it went to an IA 4 that you would end up disclosing it because you did not 5 write a memo after he made this admission of dishonesty 6 to his supervisor, Sergeant Pfarr? 7 A. He didn't make an admission of dishonesty. 8 Q. Well, you said he was willing to accept the 9 consequences that were to follow regarding the incident. 10 Wasn't he in trouble because he had been 11 notified by Sergeant Pfarr and Sergeant Pfarr told you 12 this, that he had told Officer Waddell, I learned that 13 what you told me was not the truth from Lieutenant Smith 14 and there's going to be a memo and there's going to be 15 an investigation? 16 A. Correct. 17 Q. Okay. And then you go on to say that Officer 18 Waddell tells you that it's something to the effect of a 19 misunderstanding? 20 A. Yes. 21 Q. So was he willing to accept the consequences of 22 the misunderstanding? 23 A. Again, the willing to accept the consequences 24 was after my advisement that this could go to an IA, 25 that it was -- a memo was submitted and goes to the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1741 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 645 1 captains. 2 So when he made that statement, it was my 3 understanding he was willing to accept the consequence 4 if an IA had been completed and there was -- you know, a 5 determination that he had lied to Sergeant Pfarr, not a 6 determination regarding our conversation at that time. 7 He was wanting to talk to me regarding this 8 misunderstanding. 9 Q. Okay. You're saying that Lines 3 through 5 10 indicate that Officer Waddell is willing to accept the 11 consequences of an IA investigation into dishonesty, not 12 the consequences of a misunderstanding; is that your 13 testimony today? 14 A. I don't understand your question. 15 THE HEARING OFFICER: It would help me to 16 clarify this. I thought your testimony was something 17 else on direct. So if I'm wrong about this, clear it 18 up. 19 I thought the consequences were the fact that 20 the conversation wasn't confidential and that you could 21 testify to disclose whatever he said to you. 22 THE WITNESS: Correct. 23 THE HEARING OFFICER: I thought that's what you 24 meant by consequences. 25 THE WITNESS: Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1742 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 646 1 BY MS. CASTILLO: 2 Q. Is that what you're saying now? 3 THE HEARING OFFICER: Well, my recollection is 4 that's what he was saying on his direct. 5 MS. CASTILLO: Right. 6 THE HEARING OFFICER: Maybe I'm misremembering 7 it, but the transcript will speak for itself. If you 8 want to follow up, that's fine. I had a different 9 understanding. 10 BY MS. CASTILLO: 11 Q. If that's what you said on direct and now 12 you're saying this, does this have to do -- does this 13 have to do, the consequences, the consequences of making 14 a statement or the consequences of what you've just 15 testified was that he had lied and he now wants to get 16 it off his chest? 17 A. They're one and the same, in my opinion. So I 18 don't understand how you differentiate these two 19 statements. 20 THE HEARING OFFICER: Fair enough. 21 MS. CASTILLO: That's exactly what I think we 22 were confused about. 23 THE HEARING OFFICER: It's 3:30. This would be 24 a good time for a potty break, unless you're about to 25 finish. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1743 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 647 1 MS. CASTILLO: No. 2 THE HEARING OFFICER: Okay. So let's take 3 about ten minutes and stretch our legs here. 4 (Recess.) 5 THE HEARING OFFICER: All right. We're back on 6 the record, continuing with the cross-examination of 7 Lieutenant Smith. Ms. Castillo? 8 BY MS. CASTILLO: 9 Q. Thank you. On Page 6 of your transcript from 10 the November 15th interview -- 11 THE HEARING OFFICER: Appellant's M? 12 MS. CASTILLO: Yes. 13 THE WITNESS: Okay. 14 BY MS. CASTILLO: 15 Q. Okay. On Line 13 where it says you don't 16 remember reviewing all the text, was that in reference 17 to the text message? 18 A. The text between Sergeant Pfarr and Kevin 19 Waddell. 20 Q. Okay. So when you did talk to Officer Waddell, 21 you had seen the text message? 22 A. I don't remember -- I don't recall if I had 23 reviewed the text at that time or not. 24 Q. Okay. Is your interview from November 15th 25 probably more accurate than your testimony today then? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1744 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 648 1 A. Which part of my interview? Again, I don't -- 2 where does it say that I reviewed the text? 3 Q. Line 13. "At the time, I don't remember 4 reviewing all the text, knowing what they exactly said." 5 A. Okay. Again, I don't recall what text or if I 6 had even reviewed them at that time. So I may have 7 reviewed them. I don't recall. 8 Q. Okay. If I was to ask you, as you sit here 9 today, do you think you have a better recollection of 10 the events from this conversation with Officer Waddell 11 today or when you were interviewed in November -- I'm 12 sorry -- yes, November 15th? 13 A. I'd say I probably have a better recollection 14 back then. 15 THE HEARING OFFICER: That's the correct 16 answer, usually. 17 BY MS. CASTILLO: 18 Q. And when you had this conversation with Officer 19 Waddell in your office, he indicated to you that he 20 believed it was a misunderstanding and he had been 21 driving to work and trying to explain this to Sergeant 22 Pfarr via text and that he believed Sergeant Pfarr had 23 misinterpreted what he was saying? 24 A. That was the gist of his conversation, yes. 25 Q. Okay. And that Sergeant Pfarr would have Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1745 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 649 1 misinterpreted his text regarding what he was saying our 2 specific conversation was, and that was in relation to 3 your conversation with Officer Waddell, right? Line 11. 4 A. Yeah. I'm reading. He was driving to work at 5 this time and texting and Sergeant Pfarr misinterpreted 6 his text regarding what he was saying our conversation 7 was, correct, the conversation that Kevin and I would 8 have had in the locker room. 9 Q. Well, conversation that you and Kevin would 10 have had, did he say in the locker room that day or 11 just -- 12 A. You're asking me to interpret that sentence. 13 I'm interpreting it as that he was referring to our 14 conversation in the locker room. 15 Q. Okay. So you're interpreting now what you said 16 in November? 17 A. Well, that's what you just asked me to do. 18 Q. Well, I'm asking if when you were talking to 19 Kevin Waddell in the locker -- I'm sorry -- in the 20 office, and he was relaying what he had tried to clarify 21 with Sergeant Pfarr, if -- did he, specifically, say 22 when we talked in the locker room or on conversations 23 prior regarding coming in? 24 A. I don't recall what he, specifically, said. 25 Q. Okay. And, in fact, then you say that, Line Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1746 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 650 1 12, he wasn't specific, right? 2 A. Correct. 3 Q. Okay. Then do you have another conversation 4 with Sergeant Pfarr? 5 A. Uh, sometime after, I think I talked to 6 Sergeant Pfarr about Kevin coming in to see me, or I 7 mentioned that Kevin stopped by to talk about the 8 incident. 9 Q. And when you have this secondary conversation 10 with Sergeant Pfarr and Sergeant Pfarr goes to the 11 extent of trying to clarify what your conversation with 12 Officer Waddell was, did you later then see a memo about 13 that follow-up conversation with you? 14 A. There was only one memo completed, to my 15 knowledge. 16 Q. Okay. And the gist of what you took away from 17 that meeting with Officer Waddell the one time you had 18 the face-to-face with him regarding this text message 19 was that Officer Waddell, in your words, are he really 20 relied on the fact that it was a misunderstanding, as he 21 was trying to drive and text, or respond, right? 22 A. That's what I felt he was trying to convey to 23 me, yes. 24 Q. Okay. And, again, you indicated that you 25 weren't going to ask any questions because you were not Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1747 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 651 1 investigating, you didn't want to violate his rights, 2 right? 3 A. I just indicated that that was, kind of, my 4 demeanor during the conversation, that I wasn't going to 5 ask questions. 6 Q. Is that -- wait. That's your demeanor or that 7 was your intention? 8 A. That was my intention. I'm sorry. 9 MS. CASTILLO: Can I ask that Appellant's M be 10 admitted? 11 MR. PALMER: No objection. 12 THE HEARING OFFICER: All right. So without 13 objection, Appellant's M is admitted into evidence. 14 BY MS. CASTILLO: 15 Q. And you were aware that Officer Waddell has a 16 child with special needs, correct? 17 A. Correct. 18 Q. You earlier testified about tension at home. 19 Do you have any other information about that or 20 is that all you knew? 21 A. Further information as to specific information? 22 Q. Correct. 23 A. Just, yeah, between he and his wife. 24 Q. Did you send him to EIP or anything like that? 25 A. His supervisor, at the time, was Sergeant Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1748 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 652 1 Amoroso, who was aware of it and I knew had been talking 2 with him about it. I don't know what their specific 3 conversation. So I was allowing his direct supervisor 4 to work with him. 5 Q. Okay. And you don't know if that tension had 6 been based on schedules or childcare or anything like 7 that? 8 A. I knew of one incident, but it was not related 9 to any of those things, to my knowledge. 10 Q. Okay. Are you talking about during this time 11 frame? 12 A. I don't remember the time frame, but if you're 13 asking me do I know what any of the tension was about, I 14 do recall one incident that was brought to my attention, 15 but I don't know if it was in that time frame. 16 Q. Regarding this one incident, did you do any 17 investigation, yourself? 18 A. No. 19 Q. Okay. Did you read, this morning, your 20 interview that was taken on 12/ 12/2013? 21 A. I reviewed it, yes. 22 Q. And this is an interview that was conducted by 23 who? 24 A. Lieutenant Proll. 25 Q. Okay. And is this about the text messaging and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1749 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 653 1 being late or is this about the Bentley? 2 A. He was conducting an investigation regarding 3 the Bentley incident. 4 Q. I'll have you look at -- okay. Wait. 5 Lieutenant Proll on 12/ 12 was doing Bentley? 6 A. Oh, I'm sorry. That was February. It was the 7 follow-up with Lieutenant Bledsoe. My apology. 8 Lieutenant Bledsoe was conducting the interview and it 9 was regarding the -- he was following up regarding the 10 incident with Sergeant Pfarr. 11 Q. Okay. I see that you have that transcript in 12 front of you and there's a bunch of highlighting on it. 13 Did you do that this morning? 14 A. Um, no. I did that, I believe, when it was 15 first sent to me, I did some highlights. 16 Q. And what are those highlights? 17 A. Just things that I thought were important or I 18 was experiencing at the time as I was reading. 19 Q. Okay. Did you look -- I know you've testified 20 that you deleted e-mails in your inbox in your deleted 21 file. 22 Did you look at any e-mails -- I'm sorry -- in 23 your sent folder in your deleted file, did you look at 24 any incoming e-mails after the interview that you had on 25 12/ 12/2013? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1750 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 654 1 A. Did I look at any incoming e-mails? I looked 2 at all my incoming e-mails. 3 Q. No. I mean in reference to what you had just 4 been asked about on 12/ 13 by Lieutenant Bledsoe at 6:55 5 hours. 6 A. I don't recall reviewing any e-mails. 7 Q. Are you ready to move to the Bentley incident? 8 A. You're asking the questions. 9 THE HEARING OFFICER: I think we're all ready 10 to move to the Bentley incident. 11 BY MS. CASTILLO: 12 Q. Did you get called at home regarding the 13 Bentley incident? 14 A. No -- oh, yes, I did. 15 Q. Did you get called on your home telephone or 16 your work phone or your personal cell phone? 17 A. I don't remember which one. 18 Q. What time? 19 A. It was early in the morning, whatever time the 20 TC occurred. I believe I was woken up. 21 Q. And at the point you were on the telephone, was 22 Sergeant Pfarr on scene? 23 A. Yes. I believe he was. I don't know. I 24 didn't ask if he was or not, but I assumed he was on 25 scene. So let me clarify that one. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1751 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 655 1 Q. Do you remember how you testified on direct 2 examination? 3 A. I don't. 4 Q. And what did Sergeant Pfarr tell you he had 5 observed when he called you at home? 6 A. He was just, to the best of my recollection, 7 calling me to let me know that there was a TC that 8 occurred, vehicle that had overturned, individuals in 9 the vehicle had to be extracted, he didn't believe it 10 would be a fatal, but he wanted to call and get my 11 impression. I believe it was something like that, and 12 about calling -- having us call out the traffic team. 13 Q. Is that something a sergeant typically needs 14 permission to do, is to call out a sergeant's -- a 15 sergeant needs permission from a lieutenant to call out 16 the traffic team? 17 A. He doesn't need permission, but they'll usually 18 run it by a lieutenant because we like to know if 19 there's a fatal in our city and we'll discuss the 20 circumstance. If it's a fatal TC, they'll call them 21 out, regardless, but they typically call their watch 22 commander prior to. 23 Q. And when he called you, he indicated he didn't 24 believe it was going to be a fatal, right? 25 A. I believe so. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1752 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 656 1 Q. And even though you were at home, were you 2 still his watch commander? 3 A. At that time, I was, yes. 4 Q. Okay. Did he say anything about Officer 5 Waddell when he called you at home? 6 A. No. 7 Q. He didn't say that he had seen Kevin walking 8 around the patrol car? 9 A. Walking around the patrol car in reference to 10 what? I don't... 11 Q. And that Pfarr had confronted him and there was 12 a joke? 13 A. That was a conversation that occurred in my 14 office. 15 Q. And when was that? 16 A. After he spoke with Lieutenant Bledsoe. 17 Q. And when was that? 18 A. I believe I testified earlier that I don't 19 remember the exact date. 20 Q. Was it sometime in or around where the SET and 21 detective interviews were about to take place? 22 A. Yes. 23 Q. And did you hear about -- you had testified on 24 direct examination about the removal of a hubcap? 25 A. I believe that -- yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1753 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 657 1 Q. Did you hear anything about removal of emblems? 2 A. I don't -- I might have said -- I don't 3 remember, exactly, what the removal of -- to me, it was 4 the hubcap that was the main conversation, that I 5 recall. 6 Q. When you were reading transcripts this morning, 7 did you also read your transcript from your interview 8 regarding the Bentley incident with Lieutenant Proll? 9 A. I started to review it. I did not finish it 10 yet because we had to come here. 11 Q. Okay. Did you review it at lunch? 12 A. No. 13 Q. At this time, are you Sergeant Proll's direct 14 chain of command -- I'm sorry -- Sergeant Pfarr's direct 15 chain of command? 16 A. Um -- 17 Q. At the time of the Bentley incident. 18 THE HEARING OFFICER: If you don't know, you 19 don't know. 20 THE WITNESS: I don't know if I was or not. I 21 would be assuming that, because he contacted me that 22 time, that I was his direct, but I don't recall if I was 23 or not. 24 BY MS. CASTILLO: 25 Q. But you were not the lieutenant that was in Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1754 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 658 1 charge of the investigative unit where the detectives 2 were going to be supervised, right? That was Lieutenant 3 Bledsoe, correct? 4 A. The traffic team is not under the -- 5 Q. I'm sorry. When someone would promote to 6 detectives, that would be supervised by Lieutenant 7 Bledsoe, not you, correct? 8 A. Okay. You're crossing two different things. 9 Q. I know. 10 A. So you may want to refocus the question on one 11 specific thing because you talked about traffic and then 12 you said detectives. They're two different things. 13 Q. Right. Okay. If an officer promotes to 14 detectives, that would be under the supervision of 15 Lieutenant Bledsoe, correct? 16 A. Correct. 17 Q. But at the time of the traffic collision in 18 February of 2013, you were the supervisor, you believe, 19 in the chain of command of Sergeant Pfarr, right? 20 A. Yes. 21 Q. Okay. Now, when you have this conversation 22 with Sergeant Pfarr where he relayed, after he had 23 relayed to Lieutenant Bledsoe what he had seen -- and 24 I'm just going to focus on the time of the detective 25 interviews. Okay? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1755 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 659 1 A. Okay. 2 Q. He indicates he confronted Officer Waddell. 3 Did he elaborate on that? 4 A. Confronted after the incident or during -- what 5 he had said was, again, Officer Waddell was carrying a 6 hubcap, it was something to questioning him what he was 7 doing and, at some point, Officer Waddell indicated it 8 was a joke and that that's how, at the time, Chad took 9 it. 10 Q. Was this on the phone or in person? 11 A. It was in my office. 12 Q. No. I mean the conversation -- 13 A. In person. 14 Q. The conversation between Officer Waddell and -- 15 A. Oh. 16 Q. Yeah. That's why I need to finish the 17 question. 18 The conversation between Officer Waddell and 19 Sergeant Pfarr, was that on the phone where he said put 20 it back, or was that in person when it was relayed to 21 you? How was it relayed? Was that a phone conversation 22 or in-person conversation? 23 MR. PALMER: Objection. Now it's 24 unintelligible. I'm not sure what the question is. 25 THE HEARING OFFICER: Do you understand the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1756 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 660 1 question? 2 THE WITNESS: I think I do. 3 THE HEARING OFFICER: If you understand, you 4 may answer. 5 THE WITNESS: I believe it was at the traffic 6 collision scene. 7 BY MS. CASTILLO: 8 Q. Okay. And at the time that you were informed 9 of this incident, I, Sergeant Pfarr, he indicated to you 10 that he believed it was a practical joke on a new 11 sergeant? 12 A. Joking, practical joke, I don't know the exact 13 words, but, yes, it was something to the effect that he 14 was joking with the new sergeant. 15 MS. CASTILLO: We're on Appellant's N. 16 THE HEARING OFFICER: Time for another doc 17 here? 18 MS. CASTILLO: Yes. 19 THE HEARING OFFICER: N, as in Nancy. Thank 20 you. Appellant's N looks like another certified 21 transcript. This one is of a February 13 interview by 22 Lieutenant Proll of Lieutenant Smith; is that right? 23 MS. CASTILLO: Correct. 24 THE HEARING OFFICER: Okay. Good. Says it was 25 transcribed on June 15, 2015, but took place on February Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1757 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 661 1 13. Is that 2014, or do we know? 2 MS. CASTILLO: It would be 2014, correct? 3 THE WITNESS: Correct. 4 THE HEARING OFFICER: So that's Appellant's N. 5 I'm waiting for that scanner to get used. That's the 6 exciting part of my day. 7 MR. PALMER: I know. It's just sitting over 8 there. 9 MS. CASTILLO: That's for the F. 10 BY MS. CASTILLO: 11 Q. Okay. So in front of you is what's been marked 12 Appellant's Exhibit N. You haven't seen this version, 13 correct? 14 A. I don't have a copy. 15 THE HEARING OFFICER: Oh. These are mine. 16 MS. CASTILLO: Okay. You have one, I have one. 17 THE HEARING OFFICER: These are mine. You need 18 to get one for the witness. 19 BY MS. CASTILLO: 20 Q. I'll ask you a different question while we look 21 for that. 22 At the time that Sergeant Pfarr came into your 23 office to bring this to your attention, he indicated to 24 you that he probably should have brought this to your 25 attention sooner, but he needed to talk to you about it Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1758 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 662 1 now, right? 2 A. Yes. 3 Q. And, at the time, he did not believe Officer 4 Waddell was really going to take anything from the 5 Bentley, correct? 6 A. Correct. 7 Q. Did he indicate, at any point, that he had 8 observed him damaging the Bentley with a knife? 9 A. I don't recall him saying that. 10 Q. Do you recall him saying that someone else had 11 witnessed Officer Waddell damaging the Bentley with a 12 knife? 13 A. I don't recall him saying that. 14 Q. And at the time he brings it to your attention, 15 he's brought it to Lieutenant Bledsoe's attention, did 16 you ask him to write a memo about what he was conveying 17 to you? 18 A. No. 19 Q. Even though he's saying, I'm specifically 20 telling you this because I have some ethical concerns? 21 A. Yes. 22 Q. Were you not also concerned about the ethics of 23 Officer Waddell based on what you were hearing from 24 Sergeant Pfarr? 25 A. Sergeant Pfarr was basing it on a totality of Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1759 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 663 1 circumstances regarding all the incidents we were 2 currently talking about. At the time of that 3 conversation, he was still relaying that he believed it 4 was a joke. So to have him complete a memo regarding 5 that incident at that time, I did not feel was 6 appropriate. 7 Q. Okay. But when you are talking to him at the 8 point where it's now sergeant -- I'm sorry -- detective 9 exam time, he's bringing it to your attention and he 10 said, I probably should have talked to you about this 11 earlier, he says he's bringing this up to you now 12 because he has some ethical concerns, right? 13 A. Correct. 14 Q. So it's not because, at this point, he thinks 15 it was a joke, right? 16 A. As I stated earlier, it was based on a totality 17 of circumstances. When we had that conversation in my 18 office, it was regarding that specific incident and he 19 was second-guessing, but he still believed, at the time, 20 he was joking. 21 For me, that would not constitute a write-up on 22 that specific event. The other stuff was just stuff he 23 was watching or looking for. So to write an officer up 24 at that time, I do not feel, would have been 25 appropriate. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1760 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 664 1 Q. Well, not asking about discipline, but I mean 2 initiating an investigation into what had happened at 3 the scene of the Bentley crash. 4 A. He was still in my office relaying that he felt 5 it was a joke. So, at that time, I would not -- if that 6 was what he felt it was, I would not initiate an 7 investigation. 8 Q. Okay. And I will show you my copy of this. 9 A. Okay. 10 Q. So on Page 4, Lines 12 through 16, at the time 11 he's bringing it up to you, it's because he has, now, 12 some ethical concerns. 13 A. Okay. 14 Q. And your whole -- and, obviously -- 15 THE HEARING OFFICER: I'm sorry. What page are 16 we on? 17 MS. CASTILLO: 4, Lines 12 through 16. 18 THE HEARING OFFICER: Okay. 19 BY MS. CASTILLO: 20 Q. And it is the understanding that, as you're 21 being interviewed here in February, that is the goal of 22 Lieutenant Proll to determine now if it's a practical 23 joke or not, right? 24 A. That's what Lieutenant Proll is attempting to 25 determine, yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1761 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 665 1 Q. Okay. So then Lieutenant Proll engages you in 2 conversation. In Lines 18 through 22 says, "You know, 3 it sounds weird if Chad, all along, thought it was a 4 practical joke, and now he's bringing it up when Kevin 5 is applying for these things, suddenly, it's an ethical 6 issue. Do you see how those have a conflict with each 7 other, right?" 8 He's having this conversation with you during 9 your IA interview, right? 10 A. Correct. 11 Q. Okay. So then, as you -- as you have the 12 conversation with Sergeant Pfarr, isn't it true that at 13 the time that he told you about this Bentley incident 14 with Officer Waddell, that he never told you that he was 15 thinking it was never, maybe, not a practical joke, that 16 it was always just that, that it was a joke? 17 MR. PALMER: Objection. Unintelligible. 18 THE HEARING OFFICER: Do you understand? 19 THE WITNESS: No. 20 THE HEARING OFFICER: Try it again. 21 BY MS. CASTILLO: 22 Q. At the time you have the conversation with 23 Sergeant Pfarr around detective testing time, right, 24 when you had the conversation with Sergeant Pfarr, he 25 always indicated to you that he felt it was, one, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1762 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 666 1 handled, correct? 2 A. Yes. 3 Q. And, two, that it was just a bad joke? 4 A. He was indicating that he felt -- yes, he had 5 questioned it in his mind, but he was indicating stuff 6 like Officer Waddell had been joking with him while he 7 was in my office. 8 Q. So despite these other thoughts that he had 9 brought to your attention, this perceived lateness or 10 early leaving and the watching of the movie at the time 11 you had the conversation with Sergeant Pfarr, he thought 12 it was a joke, right? 13 A. I don't understand what your question is. 14 Q. Okay. Can you read Lines 23 on Page 4, which 15 starts with your answer, all the way on Page 5, to, now, 16 23. 17 A. Yes. Okay. 18 Q. At the time that you have this conversation, 19 that is right around detective testing time, does 20 Sergeant Pfarr convey to you that, based on the other 21 incidents, that he was aware of the movie-watching, the 22 lateness or the early leaving, that now he is 23 second-guessing whether or not it was a joke? 24 A. Yes. That's why he went to Lieutenant Bledsoe. 25 Q. Okay. But when he talked to you after that, he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1763 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 667 1 never told you that he thought it was anything more than 2 just a bad joke, right? 3 A. Our conversation in my office was he felt that 4 it was a poor joke and that he had handled it. 5 Q. Okay. So did you ever have a conversation with 6 Lieutenant Bledsoe to determine if Sergeant Pfarr, when 7 he had talked to him, said it was a bad joke, or if he 8 had said to Lieutenant Bledsoe, no, this is an integrity 9 issue? 10 A. Lieutenant Bledsoe and I talked. I don't 11 recall, specifically, what we discussed regarding this 12 incident. 13 Q. Well, if you talked to Lieutenant Bledsoe and 14 Lieutenant Bledsoe said, well, Sergeant Pfarr told me it 15 was an integrity issue, and then you had said, well, no, 16 he never came and told me that at the time he felt he 17 had handled it and was just a bad joke, those would be 18 conflicting statements; wouldn't you agree? 19 A. I don't know what he told Lieutenant Bledsoe. 20 Q. I know. I get that, but I'm saying if you had 21 been told -- if you had been advised that his statement 22 to Lieutenant Bledsoe was different, that would have 23 been something that stuck out in your mind, right? 24 A. I'm not following you because Chad came to me 25 because he had concerns. He had expressed these Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1764 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 668 1 concerns to Lieutenant Bledsoe. Lieutenant Bledsoe 2 asked him to express those concerns to me. He came in 3 and expressed those concerns and why he was having them 4 and it's the gist of the totality of all the incidents. 5 He let me know about the incident he hadn't told me 6 about and that it was something he shared with 7 Lieutenant Bledsoe. 8 We ended our conversation in a way of how do 9 you feel it was handled. I still think it was, more 10 than likely, a bad joke and that's how he left it, and I 11 asked him if he felt he had handled it and he felt that 12 he had at that time. 13 Q. Okay. So despite this reporting to the two 14 lieutenants about potential integrity, he had resolved 15 it in his mind, at least he had conveyed it to you, that 16 even after this assessment, at the time he was talking 17 to you, he still thinks it was just a bad joke? 18 A. He felt he had handled it and that it was a bad 19 joke, yes. 20 Q. Okay. Do you remember when I asked you about 21 the collecting evidence or collecting trophies from 22 accident scenes, if you had any knowledge about that? 23 Do you remember those questions today? 24 A. I don't remember the specific question. 25 Q. Do you remember talking about collecting or Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1765 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 669 1 collections today? 2 A. I mean, between all my testimony, it all blends 3 together. I know, at some point -- 4 Q. I mean today. 5 A. I don't recall what your exact question was 6 today. 7 Q. Okay. But we talked about it, right? 8 A. Probably. We talked about a lot of things and 9 we've gone back and forth between two incidents. So I 10 don't recall your exact questioning regarding trophies 11 or things like that. 12 Q. Okay. And then you have a conversation with 13 Brian. Who is Brian? 14 A. Sergeant Amoroso. 15 Q. So are you following up on this matter with 16 Sergeant Amoroso then? 17 A. The Bentley matter? 18 Q. Yes. 19 A. I was -- yeah. I was -- Sergeant Amoroso and 20 Kevin are good friends. They lived in the same complex 21 and I know he knew Kevin, I would say, fairly well. 22 Q. So once you learned about the Bentley incident 23 from Sergeant Pfarr, then you had contact with Brian 24 Amoroso and asked him about what he knew? 25 A. I don't remember my exact -- I can give you, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1766 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 670 1 generally, what I recall asking him. 2 Q. Okay. But you did ask one of -- well, you did 3 ask Sergeant -- no -- Officer Waddell's direct 4 supervisor and now his friend and neighbor? 5 A. I don't know how close they live in the same 6 complex, same neighborhood. 7 Q. Okay. If he knew anything about or he had 8 heard anything about Officer Waddell collecting trophies 9 from accident scenes? 10 A. I asked him something to that effect, yes. 11 Q. So are you now conducting an investigation into 12 the removal of the emblems from the Bentley? 13 A. No. 14 Q. You're just asking other people about what you 15 had heard? 16 A. I'm asking something that was related to 17 something that Sergeant Pfarr had brought to my 18 attention. 19 Q. Okay. And who else did you talk to besides 20 Brian Amoroso? 21 A. I don't believe I talked to anybody else. I 22 know, in my testimony, I stated that I may have shared 23 the information with Captain Staley, but I was very 24 unsure about that. 25 Q. And this was after Sergeant Pfarr told you it Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1767 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 671 1 was handled? 2 A. What was? 3 Q. Well, he came to your office, he told you it 4 was handled and then you went and asked questions of 5 Brian Amoroso? 6 A. It would have been after, yes. 7 Q. Okay. And Brian Amoroso said there was 8 nothing, to his knowledge, that Kevin had taken from an 9 accident scene or anything like that that he had been 10 personally aware of, correct? 11 A. Correct. 12 Q. And even though this conversation that you had 13 with Sergeant Pfarr about the Bentley incident was only 14 about -- well, how long was it? 15 A. I don't know. Five, ten minutes, maybe. 16 Q. But you felt that you had really questioned 17 Chad Pfarr about what he thought and felt and saw, 18 right? 19 A. What do you mean by really questioned? It 20 wasn't an interview. It was just a conversation between 21 Chad and I, and more Chad sharing what he had seen. 22 Q. I'll refer you to Page 6, Lines 24 and 25. "So 23 at the time, I felt, you know, I had really questioned 24 Chad." What do you mean by that? 25 A. At the time, I really wasn't trying to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1768 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 672 1 investigate anything because, at the time, I felt I -- 2 you know, I really questioned Chad. Just questioned 3 Chad to his feelings of what occurred that day. Like, 4 his feelings to what Kevin's intentions were. 5 Q. Because, otherwise, you would have gone down 6 the hall and probably said we need to do something else, 7 right? 8 A. Otherwise, I would have asked Chad to complete 9 a memo. 10 Q. Page 7, Lines 1 through 3, otherwise, you would 11 have gone down the hall and probably said you need to do 12 something else? 13 A. Gone down the hall, yes. Whether that's a 14 memo, taking it down the hall or something like that, 15 but when I'm referring to down the hall, it's up to the 16 captains and chief to make a decision, whether it's me 17 completing a memo or Chad completing a memo. Typically, 18 it's not verbal. There's some type of documentation. 19 So it's just a general term of going down the hall. 20 Q. When is there, typically, some type of 21 documentation? 22 A. If -- a memo would have been completed if we 23 felt that it should have been some type of IA or 24 internal investigation. 25 Q. So only if you feel there might be a need for Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1769 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 673 1 further investigation -- 2 A. Not only. 3 Q. Wait -- complete a memo -- 4 THE HEARING OFFICER: It's got to be one at a 5 time; otherwise, the transcript won't make any sense. 6 So you're still asking a question? 7 BY MS. CASTILLO: 8 Q. Right -- and go down the hall and ask for a 9 captain or a chief to make a decision that an IA should 10 occur? 11 THE WITNESS: So what's the question? 12 MS. CASTILLO: Can it be read back, please? 13 (Record read by the court reporter.) 14 MS. CASTILLO: Could be a memo. 15 THE WITNESS: Not necessarily. We don't have a 16 particular format. 17 BY MS. CASTILLO: 18 Q. When you talked to Brian Amoroso, where was 19 that? 20 A. I don't remember. 21 Q. Did you call him in your office? 22 A. I don't recall. 23 Q. Do you know when you saw him after the fact? 24 A. No. 25 Q. Did you bring it up in casual conversation? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1770 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 674 1 A. Yes. 2 Q. Just randomly? 3 A. I believe so. I, honestly, don't recall. 4 Q. So when you talked to Sergeant Pfarr, did he 5 tell you that he saw Officer Waddell taking a hubcap 6 towards his car? 7 A. I believe that was my testimony -- or my 8 statement during the interview by Lieutenant Proll. 9 Q. Do you have any independent recollection, as 10 you sit here today under oath? 11 A. I believe that's what I said, that he'd seen 12 him carrying it or had it in a bag, or something like 13 that. 14 Q. I know what you said. I'm asking, as you sit 15 here today, do you remember what that conversation was 16 like? 17 A. With Sergeant Pfarr? 18 Q. Yes. 19 A. I don't remember the exacts, no. 20 Q. Okay. But it's conveyed to you, through 21 Sergeant Pfarr, that, at some point during this on-scene 22 encounter between Sergeant Pfarr and Officer Waddell, 23 that Kevin says, I'm just kidding, I'm only messing with 24 you, or something like that? 25 A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1771 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 675 1 Q. And that is when Sergeant Pfarr relays to you 2 that he said something to the effect of, knock it off, 3 put it back in the vehicle? 4 A. Correct. 5 Q. And then when you say that you -- strike that. 6 Do you recall how many times you were 7 interviewed regarding the Bentley conversation that you 8 had with Sergeant Pfarr? 9 A. I believe only the one time. 10 Q. Did Sergeant Pfarr, when you spoke to him, as 11 he was conveying what he had witnessed at the scene of 12 the Bentley, tell you that any other individual had 13 witnessed the same thing he had? 14 A. I don't remember. 15 Q. Or any statements that were made that stood out 16 in his mind? 17 A. No. Not that I recall. 18 Q. Did he say anything about a conversation with a 19 tow truck driver? 20 A. Not that I recall. 21 Q. Did he say anything about the presence of a tow 22 truck driver? 23 A. Not that I recall. 24 Q. Now, do you know why it took months later for 25 Sergeant Pfarr to begin completing the memo about the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1772 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 676 1 Bentley incident? 2 A. No. 3 Q. Other than your -- strike that. 4 In 2013, did your department have Lexipol? 5 A. I don't recall the exact date of the approval 6 of Lexipol. 7 Q. Was it that year? 8 A. I don't recall. 9 Q. At any time during your conversation with 10 Sergeant Pfarr, did he indicate to you that he believed 11 that Officer Waddell had committed a crime? 12 A. No. 13 Q. At any time during your conversation with 14 Sergeant Pfarr, did he indicate to you that he believed 15 that Officer Waddell had attempted to commit a crime? 16 A. No. 17 Q. If he had indicated those things to you, in any 18 way, what would have been your action thereafter, as a 19 lieutenant or supervisor? 20 A. Based on the fact that he was bringing it to my 21 attention at such a later date, I would have asked him 22 to complete a memo regarding his recollection of the 23 incident, his observations, and I would have submitted 24 it through the chain of command. 25 Q. Did you think Officer Waddell was a problem Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1773 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 677 1 officer? 2 A. I didn't know Officer Waddell that well and 3 there had been concerns regarding, sometimes, his 4 performance. 5 So, again, I hadn't worked with him a lot, 6 based on the special assignments. So I tend to not form 7 my own judgments, but I had heard concerns regarding 8 some of his performance at times. 9 Q. From who? 10 A. I don't recall. 11 Q. Performance of -- on what? 12 A. Job duties. 13 Q. What kind? 14 A. I don't recall. 15 Q. Performance on job duties from unknown -- are 16 they officers or management? Are they civilians? 17 A. I don't recall. 18 Q. And did you hear it or read it? 19 A. I don't recall. 20 Q. Can you add any more detail than concerns about 21 performance on job duties? 22 A. No. 23 Q. As of August or September 2013, you indicate 24 that you did not know Officer Waddell that well, right? 25 A. Just now, yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1774 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 678 1 Q. Okay. What year did you start working in San 2 Luis Obispo P.D.? 3 A. Now you're making me think. January 2002. 4 Q. Okay. So -- okay. So this 11-year period, you 5 just didn't know him very well? 6 A. Kevin's a pretty quiet guy and a private person 7 and, again, I rarely supervised him. I'd been on 8 different assignments at the time. 9 So as I promoted to supervisor, I tend to work 10 and go home to my family. So I did not have a close 11 relationship. And like I said, Kevin's a very quiet guy 12 and kept to himself. 13 Q. And did you ever work patrol with him? 14 A. I'm sure I did. 15 Q. How long were you assigned to patrol? 16 A. As a sergeant? 17 Q. As anything. 18 A. I don't know the total number of years. A lot. 19 Q. Well, how long were you assigned to patrol as 20 an officer? 21 A. I don't know. Probably -- I think I promoted 22 five years after. So five years. Four and a half to 23 five years. 24 Q. And how long were you -- you were a sergeant 25 for how long? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1775 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 679 1 A. Um, four years. Four or five years. 2 MS. CASTILLO: I'll rest my cross at this time. 3 I don't know -- can I ask that my last transcript be 4 admitted, please? 5 THE HEARING OFFICER: Appellant's N. Any 6 objection to N? 7 MR. PALMER: No. 8 THE HEARING OFFICER: Without objection, N is 9 admitted. Redirect examination? 10 MR. PALMER: Yes. 11 THE HEARING OFFICER: Do you need a minute, or 12 are you ready to go? 13 MR. PALMER: I'm ready to go, unless people 14 need a break. 15 16 REDIRECT EXAMINATION 17 BY MR. PALMER: 18 Q. Lieutenant, sometimes I like to work backwards. 19 Do you still have Appellant's N? 20 A. No. 21 THE HEARING OFFICER: Let's get him N. 22 THE WITNESS: Thank you. 23 BY MR. PALMER: 24 Q. You were asked a series of questions about 25 Appellant's N by Ms. Castillo, some of which related to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1776 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 680 1 the phrase, integrity issues. Do you recall that series 2 of questions? 3 A. Yes. 4 Q. Would you go to Page 10 of Appellant's Exhibit 5 N? 6 A. There's no Page 10. 7 Q. Are you sure you have N? 8 A. There's no letter on here. So I don't know 9 that I was given N. 10 Q. Your transcript, February 13? 11 A. No. 12 MS. CASTILLO: That's November 15. 13 THE HEARING OFFICER: Got the other one. Page 14 10? 15 THE WITNESS: I have a Page 10 now. 16 BY MR. PALMER: 17 Q. You have a Page 10 from something? 18 A. I don't know if it's N or not. 19 Q. Does it start with "A," period, "I didn't get 20 that impression"? 21 A. Yes. 22 THE HEARING OFFICER: Bingo. 23 BY MR. PALMER: 24 Q. Would you read, to yourself, Lines 10 through 25 16? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1777 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 681 1 A. Yes. 2 Q. And tell me when you're done. 3 A. Okay. Yes. 4 Q. Does that put in better context how these 5 integrity issues dovetailed with what Sergeant Pfarr was 6 telling you in terms of the Bentley incident? 7 A. Yes. 8 Q. How? 9 A. Again, it was the totality of circumstances, 10 Sergeant Pfarr working with Officer Waddell and the 11 concerns that he had brought to my attention of the 12 concerns. 13 MS. CASTILLO: Objection. Non-responsive. 14 THE HEARING OFFICER: Overruled. 15 BY MR. PALMER: 16 Q. You were asked on cross-examination about 17 whether or not you directly addressed with Mr. Waddell 18 his lateness and the movie issue. Do you recall that? 19 A. Yes. 20 Q. Would that have been your role as his 21 lieutenant? 22 A. No. 23 Q. Whose role would that have been? 24 A. The sergeant that supervises him. 25 Q. And that would have been Sergeant Pfarr? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1778 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 682 1 A. Yes. 2 Q. Did you rely upon him to do that? 3 A. Yes. 4 Q. On cross-examination, you were asked -- strike 5 that. 6 On cross-examination, it was pointed out and 7 then questioned that even though Sergeant Pfarr told 8 you, in his opinion, Mr. Waddell lied to him, you 9 continued to schedule Mr. Waddell for CAT shifts 10 thereafter. Do you recall that? 11 A. Yes. 12 Q. Okay. Why? 13 A. Because I had no reason. He hadn't been put on 14 administrative leave. If he requested the shift and he 15 had the seniority, the way it's worked out, he would get 16 the shift. 17 Q. Were you waiting for something else to happen? 18 A. Yeah. The decisions from, you know, the 19 investigation that was being conducted. 20 Q. Giving Mr. Waddell the benefit of the doubt? 21 A. Yes. 22 Q. Could it all have been a misunderstanding? 23 A. Yes. 24 Q. No reason he should lose shifts because of 25 that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1779 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 683 1 A. Correct. 2 Q. Okay. Do you have Appellant's J -- 3 A. No. 4 Q. -- still in front of you? Can I ask that the 5 witness be provided with J? 6 THE HEARING OFFICER: J. 7 MR. PALMER: Kasey, J is one page, correct? 8 MS. CASTILLO: Correct. 9 BY MR. PALMER: 10 Q. Do you have J there? 11 A. Yes, sir. 12 Q. Just to make sure it's marked correctly, is 13 that an e-mail from Mr. Waddell, dated June 5th, 2013? 14 A. Yes, sir. 15 Q. And it's about the CAT shift on what date? 16 A. 11/ 12. 17 Q. And he's asking, apparently, you to be excused 18 from the first hour of the CAT shift the next day on 19 June 6th? 20 A. Yes. 21 Q. Okay. This one had been before the October 22 19th, 2013, CAT shift? 23 A. Yes. 24 Q. Is this a demonstration of how you, exactly, 25 would want him to do it? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1780 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 684 1 A. It's an example. It's not an exact way that I 2 would expect him to do it. 3 THE HEARING OFFICER: By "do it," you mean 4 what? 5 BY MR. PALMER: 6 Q. I'll fix it. 7 Is this an example of correctly asking in 8 advance to have a change in the start time of a CAT 9 shift? 10 A. It's one way, yes. 11 Q. There's others? 12 A. Yes. 13 Q. Verbally? 14 A. Yes. 15 Q. Phone call? 16 A. Yes. 17 Q. Either which way the communication is done, is 18 this what you expect your officers to do when they want 19 to vary a shift time, start time? 20 A. Yes. 21 Q. Did you notice, when you first looked at 22 Appellant's J, that it didn't look the same way we 23 usually -- didn't look the same way that e-mails appear 24 when one prints them out? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1781 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 685 1 Q. Do you know why that is? 2 A. I don't. 3 Q. And this was in June of 2013, again, 4 Appellant's J? 5 A. Yes. 6 Q. So do you get from this that Mr. Waddell 7 demonstrated he knew how to correctly ask for a change 8 of shift with your approval prior to October 19th, 2013? 9 MS. CASTILLO: Objection. Leading. 10 THE HEARING OFFICER: I'm going to allow a 11 little bit of it. 12 THE WITNESS: Yes. 13 BY MR. PALMER: 14 Q. Appellant's K, do you still have that in front 15 of you? 16 A. I do. 17 Q. And just to make sure they were marked 18 correctly, is this a series of e-mails, December 11th -- 19 actually, December 2nd, December 3rd, December 11th, 20 December 12th? 21 A. Yes. 22 Q. Okay. And this is a little bit different from 23 J, isn't it? 24 A. Yes. 25 Q. This was not coming in late or leaving early, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1782 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 686 1 was it? 2 A. No. 3 Q. What was it? 4 A. Another officer trying to make arrangements to 5 have his CAT shifts covered. 6 Q. Just completely changing out one officer for a 7 CAT shift and including a different officer in that CAT 8 shift? 9 A. Yes. 10 Q. Did that happen from time to time in 2013? 11 A. Possibly yes. 12 Q. Obviously, once? 13 A. Yes. 14 Q. Does that affect the shifting, at all? Does 15 that affect the time the shift starts? 16 A. Not necessarily, no. 17 Q. If everybody arrives on time? 18 A. Yeah. 19 Q. Does that affect when the shift ends? 20 A. No. 21 Q. As long as everybody stays when they're 22 supposed to stay? 23 A. Yes. 24 Q. It's just swapping out somebody for another 25 person? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1783 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 687 1 A. Yes. 2 Q. But Mr. Waddell asked in advance to do that 3 with you? 4 A. Yes. 5 Q. Approximately, how far in advance of the shift 6 occurring? 7 A. The CAT shift was on 12/ 21 -- 8 Q. Right. 9 A. -- and it looks like he asked me on December 10 3rd. 11 Q. Okay. 18 days? Does that sound about right? 12 A. Yeah. Yes. 13 Q. And it took you a while to get back to him? 14 A. Yes. 15 Q. But you approved it? 16 A. Yes. 17 Q. Without your specific approval, would Officer 18 Waddell have been able to take Officer Dickle's shift on 19 December 21st? 20 A. A sergeant could have approved it. 21 Q. Without your approval or a sergeant's approval, 22 would he have been able to take Officer Dickle's CAT 23 shift on December 21st? 24 A. Um, I don't recall -- there's been times where 25 officers have asked for something and I would just tell Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1784 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 688 1 them to make arrangements to have another officer work 2 it. Whether my approval was needed at that time or 3 that's consent of my approval, I don't recall, but, at 4 this time, you know, Jason was making arrangements. 5 So, again, I don't know if I ever gave anyone a 6 blanket statement of as long as you make arrangements to 7 have the shift covered. 8 Q. Let me do it this way. Would this be another 9 illustration of how you wanted a CAT officer to ask you 10 for approval to make a change like this? 11 A. Yes. 12 Q. In advance of the shift? 13 A. Yes. 14 Q. And in December 2013, this would have been 15 after the October 19th shift? 16 A. Yes. 17 Q. Appellant's L, do you have that there? 18 A. I do. 19 Q. And just to make sure, this is a December 11th, 20 2013, e-mail? 21 A. Yes. Uh, December 12th. Oh, I'm sorry. 22 December 11th and it says December 12th, yes. 23 Q. And this was Mr. Waddell asking you for 24 approval to leave the shift instead of at 4:00 p.m., 25 3:00 p.m.? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1785 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 689 1 A. Yes. 2 Q. And which shift was he asking to do this on? 3 A. 12/ 15. 4 Q. So his request came in, roughly, four days 5 before the shift? 6 A. Correct. 7 Q. Is this, again, exactly what you want him to 8 do? 9 MS. CASTILLO: Objection. Leading. 10 THE HEARING OFFICER: I'll allow it. 11 THE WITNESS: Yes. 12 BY MR. PALMER: 13 Q. Did he do this on October 19th, 2013? 14 A. No. 15 Q. Had he done it, would we be here? 16 A. No. 17 Q. And do you remember the separate line of 18 questioning that Ms. Castillo did after bringing out 19 these exhibits, sometimes things happen an hour or 20 20 minutes, or so, before a shift. Do you remember that? 21 A. Yes. 22 Q. What's an officer's obligation in that regard? 23 A. To notify myself or a sergeant. 24 Q. How? What circumstances? What would they do? 25 Give us a for instance. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1786 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 690 1 A. Well, if they're late, their alarm didn't go 2 off, family emergency. As soon as they know they're not 3 going to be able to make their shift, they need to call 4 the watch commander's line or dispatch and ask to talk 5 to the on-duty watch commander and let them know that 6 they're going to come in late. 7 Q. Let's do a hypothetical. Let's say I'm signed 8 up to do a CAT shift that begins at 11: 00 a.m. on a 9 particular day. You with me? 10 A. Yes. 11 Q. And, all of a sudden, I have to take my 12 daughter somewhere that I wasn't anticipating and I find 13 out about this at about 9:30 a.m. that day and that 14 little something that my daughter is doing is going to 15 last until 11: 00 and it takes me half an hour to drive 16 to work. 17 When I find out about that at 9:30 a.m. that 18 day, an hour and a half before the 11: 00 shift, what am 19 I supposed to do? 20 MS. CASTILLO: Objection. Relevance. 21 THE HEARING OFFICER: I'm going to allow it. 22 Overruled. You can answer. 23 THE WITNESS: He should contact the on-duty 24 supervisor or watch commander, notifying him of the 25 circumstance and just make sure they're aware they're Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1787 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 691 1 going to be in late. 2 BY MR. PALMER: 3 Q. Do you -- I'm off the hypothetical now. Back 4 on the facts of this case. 5 At any point, were you informed that 6 Mr. Waddell sent a text to Adam Stahnke sometime prior 7 to 11: 00 a.m. on October 19th, 2013? 8 A. That specific, I don't remember if I had been 9 told that or not. 10 Q. Again, we'll make it a hypothetical. 11 A. Okay. 12 Q. Let's say Mr. Waddell sent a text to Adam 13 Stahnke, who was his CAT shift team partner on October 14 19th, 2013, and let's say that text message came in in 15 the 10: 00 a.m. hour and he's supposed to be there at 16 11: 00 a.m. You got me so far? 17 A. Yes, sir. 18 Q. Do you think if he had time to send a text to 19 Adam Stahnke, he could have sent a text to Sergeant 20 Pfarr? 21 A. Yes. 22 Q. Could he have grouped a text to both men and 23 not spent much more time doing that? 24 A. Yes. 25 Q. Do you have Appellant's H there? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1788 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 692 1 A. I don't know. 2 THE HEARING OFFICER: It's this one. 3 THE WITNESS: Yes. 4 BY MR. PALMER: 5 Q. You were asked a series of questions about 6 Appellant's H in terms of your -- the timing of these 7 events as you normally operated. Let me put some more 8 stuff in there. 9 Appellant's H is the e-mail you sent to several 10 people regarding your final assignments for CAT shifts 11 during September 14th through October 29th, correct? 12 A. Correct. 13 Q. Okay. And that would include the date that we 14 keep referring to, October 19th, 2013, right? 15 A. Yes. 16 Q. Stahnke and Mr. Waddell? 17 A. Correct. 18 Q. Okay. Do you remember Ms. Castillo taking you 19 through your normal progression of getting to this 20 point, that is that there's a sign-up sheet posted? 21 A. Correct. 22 Q. A bunch of people put their names, or not? 23 A. Correct. 24 Q. You take that down? 25 A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1789 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 693 1 Q. Go somewhere with it and then make the final 2 assignments and then send this out? 3 A. Correct. 4 Q. Do you remember going through that progression 5 a couple of times? 6 A. Yes. 7 Q. Okay. You, though, keep -- correct me if I'm 8 wrong. You keep -- until these dates have expired, you 9 keep the original sign-up sheet somewhere just in your 10 files? 11 MS. CASTILLO: Objection. Misstates testimony. 12 THE HEARING OFFICER: Yeah. I don't think he 13 said that. You might ask him where he keeps it or if he 14 keeps it anywhere. 15 BY MR. PALMER: 16 Q. I'll go from the outside in. I thought that's 17 what I heard. 18 You take the sign-up sheet down and make these 19 final assignments before you send the e-mail, right? 20 A. Correct. 21 Q. Do you then keep that sign-up sheet somewhere? 22 A. Typically, I would, yes. 23 Q. For how long? 24 A. I would try -- I -- until the end of the last 25 shift. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1790 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 694 1 Q. Okay. So I wasn't wrong in my previous 2 question then. I thought I heard something about that. 3 A. Correct. 4 Q. So sometime around October 29th or sometime 5 after October 29th, you would throw away the original 6 sign-up sheet? 7 MS. CASTILLO: I would object -- okay. 8 Nevermind. 9 THE HEARING OFFICER: Go ahead. 10 THE WITNESS: Typically, I would, yes. 11 BY MR. PALMER: 12 Q. While the sign-up sheet is up there before you 13 take it down, can somebody take it down and take a copy 14 of it? 15 MS. CASTILLO: Objection. Calls for 16 speculation. 17 THE HEARING OFFICER: Overruled. You can 18 answer. 19 THE WITNESS: Yes, they can. 20 BY MR. PALMER: 21 Q. Could Sergeant Pfarr take down -- take a copy 22 of it and put it back up? 23 A. Yes. 24 Q. I mean, Sergeant Pfarr could have a copy of 25 that and you wouldn't know it, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1791 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 695 1 A. Yes. 2 Q. Do you know if -- strike that. 3 Do you know if Sergeant Pfarr did inquire of 4 SpeedShift on October 19th, 2013, before he made a call 5 to you? 6 A. I don't know. 7 Q. Do you know if Sergeant Pfarr reviewed any copy 8 of the sign-up sheet that he retained on October 19th, 9 2013, prior to the time he called you? 10 A. I don't know. 11 Q. Did you notice, back to Appellant's H, that, 12 again, it doesn't appear like it normally appears when 13 one prints out an e-mail? 14 A. Yes. 15 Q. Do you have any independent recollection of 16 when you sent -- what date you sent this e-mail out? 17 A. I don't know. No. 18 Q. Could you, perhaps, make a logical inference 19 that it was before September 14th? 20 A. Yes. 21 Q. But you don't know when? 22 A. No. 23 Q. So if the e-mail, logically, went out before 24 September 14, do you -- strike that. 25 Is Sergeant Pfarr one of the persons to whom Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1792 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 696 1 this was CCd? 2 A. Yes. 3 Q. Did you notice there's no printing out of the 4 persons to whom this was sent? 5 A. Yes. 6 Q. Do you know who it was sent to, today, sitting 7 here? 8 A. I would have sent it to all the officers that 9 were on the sign-up list. 10 Q. But Chad Pfarr is on the CC list? 11 A. Yes. 12 Q. So at some point prior to September 14th, it 13 landed in his inbox? 14 A. Yes. 15 Q. Do you know if he printed it out and kept a 16 copy of it? 17 A. I don't know. 18 Q. Do you know if he went back to it, sitting in 19 his e-mail, on October 19th, 2013, when he was trying to 20 figure out who was supposed to come in? 21 A. I don't know. 22 Q. Do you know if this was what he was looking at 23 rather than a sign-up sheet? 24 A. It could have been that. 25 MR. PALMER: Can I just note for the record Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1793 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 697 1 that I think Appellant's I and Appellant's N are 2 identical? 3 THE HEARING OFFICER: I and N? 4 MS. CASTILLO: That might be where my extra 5 copy went. 6 THE HEARING OFFICER: If they are, they are. 7 I'm not going to worry about it at this point. I don't 8 want to disturb the force of the great chain of being of 9 the lettering we've given to the appellant's exhibits. 10 So we'll leave it alone. 11 BY MR. PALMER: 12 Q. Okay. You and Ms. Castillo had some discussion 13 about Sergeant Pfarr telling you that he found 14 Mr. Waddell watching a movie in the downtown office. Do 15 you remember that? 16 A. Yes. 17 Q. And the concept of a department training film 18 came up? 19 A. Yes. 20 Q. First question, if Sergeant Pfarr had found 21 Mr. Waddell watching a department training film, do you 22 think that would have been significant enough for him to 23 bring that up to you? 24 MS. CASTILLO: Objection. Calls for 25 speculation. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1794 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 698 1 THE HEARING OFFICER: I'm going to allow it. 2 Go ahead. 3 THE WITNESS: No. 4 BY MR. PALMER: 5 Q. Why not? 6 A. Because it wouldn't, again, not as been as 7 concerning of him just watching a movie, which is what 8 he indicated to me, that he had been having lunch or 9 having a snack and watching some type of training video. 10 Q. In your interpretation of movie, did you think 11 movie could possibly include a department training film? 12 A. In my interpretation, no. 13 Q. Do you know what movie it was? 14 A. No. 15 Q. Does it matter to you? 16 A. No. 17 Q. You said, though, during Ms. Castillo's 18 questioning, that, for this kind of shift, it also would 19 have been inappropriate for Mr. Waddell to be watching a 20 department training film. Do you recall that? 21 A. Yes. 22 Q. Why is that? 23 A. Because it was such a short shift and, again, 24 our focus was to have downtown presence and for them to 25 be out on foot in the downtown area. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1795 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 699 1 Q. You had a brief discussion with Ms. Castillo 2 about deleting your e-mails two days before your 3 February -- sorry -- your December 12th, 2013, 4 interview? 5 A. Yes. 6 Q. Did you delete the e-mails with the intent to 7 harm a fellow police officer of the San Luis Obispo 8 Police Department? 9 A. No. 10 Q. You testified about your deleting e-mails was 11 due to some IT issue with the computer in your e-mail 12 system? 13 A. Yes. 14 Q. Did you finish that entire discussion or were 15 you cut off? 16 A. I don't recall. 17 Q. Okay. Can you take a few moments and explain 18 whether or not, from time to time, you get e-mails about 19 how many e-mails are sitting in your inbox? 20 A. Yeah. We -- it's a notice from our server, I 21 guess, that just says we're about to -- let's us know 22 what our memory capacity is and that we're close to 23 maxing out on that and there's, typically, a little bar 24 there showing where you're at and that you need to empty 25 some of your mail or clean up your mailbox. So if you Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1796 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 700 1 don't do that and it hits capacity, then you're no 2 longer able to receive or send e-mails. 3 Q. What happens to your e-mail? 4 A. It kind of just freezes until you clear out 5 some of the non-junk, whatever you want to call it, some 6 of the stuff you don't need. 7 Q. Are you like me, that you probably keep too 8 much stuff in there? 9 A. I usually keep it until I get that notice and 10 then I clear up some space. 11 Q. Do you delete everything? 12 A. No. 13 Q. Or are you selective about it? 14 A. I will empty everything in my deleted box, and 15 then if it's really full and I get a recurring fairly 16 shortly after, then I'll start emptying my sent e-mails. 17 Typically, I'll just do a blanket empty on my sent, 18 also. 19 Q. And does that usually clear it up for you? 20 A. Yes. 21 Q. Do you still have e-mails hanging around there, 22 even after you clear out some folders? 23 A. Oh, yeah. I still have some that I've saved. 24 Q. Let me do it this way. How often would you get 25 that e-mail notification that your thing's full? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1797 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 701 1 A. I don't know. It seems like often, but maybe 2 every couple months, it seems like. 3 Q. Okay. Let's do it this way. When you deleted 4 some e-mails two days before your December 12th 5 interview, were you, particularly, thinking about CAT 6 shift e-mails? 7 A. No. 8 Q. Was that on your mind, at all? 9 A. No. 10 Q. Did you have any reason to believe that you had 11 any e-mail sitting in either your sent, received, 12 deleted, trash folder, or whatever folder you had, do 13 you have any reason to believe there's any e-mail 14 sitting there that is relevant to anything we've been 15 talking about here today? 16 A. No. 17 Q. Ms. Castillo made mention of the fact that you 18 did not monitor the activity on the radio of CAT shift 19 officers. Do you recall that? 20 A. That I did not or if I did? 21 Q. That you did not, you did not typically monitor 22 the radio traffic. 23 A. I may have made that statement. I don't know 24 if she made that statement to me. 25 Q. Is that true, though? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1798 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 702 1 A. Yes. 2 Q. Is that your job? 3 A. No. 4 Q. Whose job is that? 5 A. The field supervisor, the sergeant. 6 Q. You can monitor regular traffic, I assume? 7 A. Yes. 8 Q. That's, typically, the job of the sergeant? 9 A. Yes. 10 Q. We've talked about the CAT shifts being from 11 11: 00 to 4:00 in 2013, right? 12 A. Correct. 13 Q. When did they become 7:00 to 5:00? Do you have 14 a good relatively solid date on that? 15 A. I don't. 16 Q. Is it after 2013, sometime? 17 A. Yes. 18 Q. And do you have Appellant's Exhibit H -- 19 A. I do. 20 Q. -- still there with you? 21 A. Yes. 22 Q. In the introductory paragraph, does it state 23 the shifts are from 11: 00 to 16: 00 hours? 24 A. It does. 25 Q. Do you have Appellant's A there, too? Can you Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1799 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 703 1 keep your -- can you keep your hand there at H and 2 toggle between A and H? 3 A. I can. Okay. 4 Q. I'm sorry. B. 5 A. B. I'm on B. 6 Q. We already did this a little bit and I'm not 7 going to belabor the point, but if you compare the 8 introductory paragraph to B, which is an e-mail from 9 Sergeant Pfarr? 10 A. Correct. 11 Q. On November 8th? 12 A. Yes. 13 Q. To the introductory paragraph on H, which we 14 can't tell from whom it came, but do you think it was 15 you? 16 A. More than likely, yes. 17 Q. Are those introductory paragraphs, with the 18 exception of syntax and pronoun identifications, 19 virtually, identical? 20 A. Yes. 21 MR. PALMER: Nothing further. 22 THE HEARING OFFICER: Anything on recross? 23 MS. CASTILLO: Yes, please. 24 THE HEARING OFFICER: Go ahead. 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1800 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 704 1 RECROSS-EXAMINATION 2 BY MS. CASTILLO: 3 Q. Mr. Palmer just went through Appellant's 4 Exhibits J, K and L with you as examples of prior 5 requests for either shift change with another officer or 6 an adjustment in time, right? 7 A. Correct. 8 Q. Okay. And this is with, obviously, advance 9 notice, correct? 10 A. Correct. 11 Q. Do you have any examples of officers e-mailing 12 you 10 to 15 minutes before? 13 A. No. 14 Q. So all the examples that you can think of would 15 be with 11 days, 4 days? 16 A. It wouldn't be appropriate for an officer to 17 call me the day of the shift or to send me an e-mail the 18 day of the shift. He would need to contact us via the 19 phone to verbally advise that they need to come in late 20 or they were sick. So to say 10 to 15 minutes, it 21 wouldn't be appropriate to send an e-mail like that. 22 Q. So when Mr. Palmer was asking you if this was 23 the preferred method of asking for this kind of 24 accommodation, it would be with advanced notice, not day 25 of, correct? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1801 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 705 1 A. Correct. 2 Q. Okay. And then you testified on redirect about 3 the officers go ahead and make arrangements. After 4 those made arrangements occurred, were, then, you 5 updated as to who was covering? 6 A. If an officer needed a day off from one of the 7 overtime shifts and they made arrangements for someone 8 else to work, typically, or they should let me know who 9 is going to work. 10 Q. They should. Did they always? 11 A. Like I said in my testimony with him, there may 12 have been a time where an officer said if I can find 13 someone to cover my shift, is that okay, and they may 14 have notified a sergeant or just made that arrangement 15 and then the other officer came in. It could have 16 happened. I don't recall it ever happening. 17 Q. Okay. If it had happened and you had later 18 become aware of it, would you have initiated any kind of 19 investigation for this implied consent shift -- 20 shift-swapping without notification as to who was 21 actually going to come in to work that day? 22 THE HEARING OFFICER: You mean if the officer 23 went out and got a sub on their own? 24 MS. CASTILLO: Correct. 25 THE WITNESS: They would need to run it by me Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1802 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 706 1 first. 2 BY MS. CASTILLO: 3 Q. No. I mean, if they had, by making 4 arrangements, right, they make the arrangements? 5 A. Yes. 6 Q. And they don't then tell you my arrangement is 7 with this particular officer and you find out about it 8 after the fact, is there now a big problem? 9 A. No. 10 MS. CASTILLO: At this time, can I have 11 Exhibits J, K and L admitted? 12 THE HEARING OFFICER: Any thoughts about J, K 13 and L? 14 MR. PALMER: I still would like to reserve. 15 THE HEARING OFFICER: So maybe we'll take it up 16 when we get together next time, unless you change your 17 mind by the end of the day today. 18 MR. PALMER: Yes. 19 THE HEARING OFFICER: All right. 20 BY MS. CASTILLO: 21 Q. When you are off duty at home, do you check 22 your work e-mail? 23 A. Yes. 24 Q. How often? 25 A. Daily. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1803 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 707 1 Q. So once a day? 2 A. Probably more than once, depending on the day 3 and then the day's activities. 4 Q. Okay. Now, you were given some hypotheticals 5 by Mr. Palmer about officers not being able to make 6 their shift, right? Would that be make their shift at 7 all or just make it on time? 8 A. Both. 9 Q. Okay. And if an officer in Mr. Palmer's 10 hypothetical knew at 10: 00 a.m. for the 11: 00 a.m. 11 period that he was going to be late, you would expect 12 that that officer, based on your testimony, would notify 13 whichever sergeant, or yourself, whoever was working, 14 correct? 15 A. Well, I believe I said call the watch commander 16 line. 17 Q. Is that what you said? 18 A. Call and notify a sergeant or myself regarding 19 this. 20 Q. And that would be into the recorded line of the 21 police department? 22 A. No. 23 Q. Well, what -- where's the watch commander line? 24 A. Watch commander line is extension 7313. If a 25 supervisor isn't in the office to answer at that time, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1804 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 708 1 it automatically goes to dispatchers. So it's a line 2 that will get answered whenever they call. 3 Q. And is that line recorded? 4 A. It is. 5 Q. Is there some department-wide protocol that 6 says this is the number to call this extension? 7 A. I don't know if there's a protocol. That's 8 just our expectation. 9 Q. Where is the expectation? 10 A. The expectation is that they notify a 11 supervisor. 12 Q. No. I'm sorry. Where is the expectation 13 delineated? 14 A. I don't know the exact policy. 15 THE HEARING OFFICER: Well, I think the 16 question is, is it memorialized in writing? Do you tell 17 people that in roll call? How would someone know that's 18 what they were supposed to do? At least, that's what I 19 would want to know. 20 THE WITNESS: There's something memorialized 21 about being late for shifts. I don't know if it 22 specifically states the 7313 number, but that's what 23 we've told the officers over the years, that that's the 24 best line to get ahold -- they know that's the line to 25 get ahold of the watch commander, and then it rings in Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1805 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 709 1 every office, sergeant's office, the two watch 2 commanders' office, and then will default to dispatch if 3 no one picks it up. So it's a line that will always be 4 answered, regardless of when you call, by a live person 5 working during the shift. 6 Again, in policy, I don't know if policy says 7 that they need to notify a supervisor. We just 8 defaulted to that number because it's a steady number in 9 terms of guaranteeing an answer, if that clarifies it. 10 THE HEARING OFFICER: Sure. Thank you. 11 BY MS. CASTILLO: 12 Q. As a sergeant and as a lieutenant, have you 13 ever had an officer appear for a shift 5, 10 or 15 14 minutes late without having called you? 15 A. Yes. 16 Q. And what happened? 17 A. I don't recall the specific incident. There's 18 been times where officers have been given a supervisor's 19 note. If it was related to they're on the freeway and 20 there's a traffic accident and they're unable to call, 21 maybe they're just verbally counseled regarding it. So 22 I don't recall what would have been done during those 23 incidents. 24 Q. But you would agree with me that the penalty at 25 that point for arriving without calling would be a very Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1806 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 710 1 low level, it would either be a verbal counseling or a 2 supervisor's note if there was an explanation that was 3 acceptable, correct? 4 A. Correct. 5 Q. So there's not some great big motivation to 6 avoid this kind of discipline; is that your 7 understanding? 8 A. Yes. 9 Q. And Mr. Palmer asked you on -- on your 10 re-direct about this copy of the sign-up sheet that 11 could have been taken down off the wall, made and then 12 kept by various individuals. Do you remember that in 13 questioning? 14 A. Yes. 15 Q. Okay. Now, if four people had signed up on 16 this sign-up sheet, would it have been apparent who 17 would automatically be assigned to those two dates that 18 would later come out in the e-mail? 19 A. No. 20 Q. Okay. And would this e-mail that had all these 21 people finalized in terms of assignment, would that ever 22 be posted in the hallway? 23 A. It could have. I don't recall if I did or 24 didn't. 25 Q. Have you ever done that before? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1807 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 711 1 A. I don't recall. I could have been in the early 2 stages of it, but I don't recall. 3 Q. When you were interviewed about this at any 4 time in the three different interviews that you were 5 talked to about Officer Waddell, did you ever recall 6 saying that the e-mail with the final names of the 7 officers had ever been posted in the hallway, perhaps? 8 A. No. 9 Q. And you indicated that when you delete your 10 e-mails, you usually delete all those that are in your 11 trash, right? 12 A. Yes. 13 Q. And then you move to sent? 14 A. At times, yes. 15 Q. And if you move to sent in order to delete, are 16 there some sent e-mails that you avoid deleting? 17 A. Typically not. I, typically, just left click 18 and then empty box. 19 Q. Okay. And although this -- this incident 20 regarding Officer Waddell and Sergeant Pfarr occurred in 21 October of 2013 and you were interviewed in December, 22 and it was about the appearance of Officer Waddell on 23 the October 19th CAT shift and then if he had been late 24 on the October 12th CAT shift, you didn't -- 25 A. October 12th CAT shift? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1808 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 712 1 Q. Well, do you know about that? 2 A. If he had been late on the October CAT -- I 3 don't know. I'm not sure what -- we haven't discussed 4 it today. So I'm not sure what you're talking about. 5 Q. Have you ever been told that he was late on the 6 October 12th CAT shift? 7 A. Again, I don't recall if it was brought to my 8 attention or not. So I'm focusing on the October 18th 9 shift. 10 Q. Do you have any recollection, whatsoever, about 11 being told that Officer Waddell was late on October 12th 12 for his CAT shift? 13 A. Again, Sergeant Pfarr brought it to my 14 attention, and being late, I don't know if it was 15 specific to that date. 16 Q. Okay. But, regardless, we're talking about CAT 17 shifts, who shows up, what time they show up, right? 18 A. Yes. 19 Q. So when you're interviewed in December, you 20 understand that that is -- although, part of the 21 interview is about what was said to who and when, right? 22 The other part is relative to this CAT shift, right? 23 A. You've lost me. 24 Q. Well, you were only being interviewed about 25 times that Officer Waddell may or may not have been Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1809 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 713 1 reported as being late or leaving early from CAT, 2 correct? 3 A. I was being interviewed regarding Officer 4 Waddell lying to Sergeant Pfarr. 5 Q. Okay. About a CAT shift, correct? 6 A. The October 18th CAT shift. 7 Q. Okay. But you've also testified, or, at least, 8 answered questions about what you had been told by 9 Sergeant Pfarr prior to that, right? 10 A. I did testify to it, yes. 11 Q. Okay. And those were specific to CAT shifts, 12 correct? 13 A. Correct. 14 Q. They were not about patrol, right? 15 A. Correct. 16 Q. They were not about some S.W.A.T. team 17 activity, right? 18 A. Correct. 19 Q. They were not about his other ancillary duties 20 at the department, they were only about CAT shifts, 21 right? 22 A. Correct. 23 Q. Okay. You testified that is the job of the 24 field supervisor to monitor the radio, right, not yours? 25 A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1810 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 714 1 Q. Now, were you ever told that Sergeant Pfarr was 2 monitoring Officer Waddell on the radio? 3 A. I may have been. 4 Q. Were you ever told that he was monitoring other 5 officers on the radio? 6 A. I may have been. 7 Q. As you sit here today, can you remember any 8 other officers that Sergeant Pfarr was monitoring via 9 the radio other than Officer Waddell? 10 A. He should be monitoring all officers via the 11 radio. As a field supervisor, that's the expectation. 12 Q. Okay. But did he tell you he was monitoring 13 any of them, specifically, the way he was monitoring 14 Officer Waddell? 15 A. I don't recall him telling me that he was 16 monitoring specific officers other than Waddell. 17 Q. Okay. And does it make sense to you that 18 someone would go into a hallway to look for a sheet 19 after an e-mail was sent to them with the information as 20 to who would be working that day? 21 A. Make sense how? 22 Q. I don't know. Does it make sense to you? 23 A. If there was something in the hallway that he 24 needed to observe, sure. 25 Q. Okay. But if you had been sent an e-mail that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1811 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 715 1 said these are the people who are working on this day, 2 would you then need to go to the hallway and look for a 3 rough draft of who may be working those days? 4 A. Maybe his e-mail was full and he had to delete 5 them. It's a possibility. 6 Q. Did you ever hear from Sergeant Pfarr that he 7 pulled Officer Waddell's statistics in terms of arrests, 8 citations, FI cards, anything like that, related to CAT 9 in June 2013 or thereafter? 10 A. He may have. I don't recall if he, 11 specifically, did those dates and got back to me on it. 12 Q. Okay. And all these things that you don't 13 recall, as you sit here today, you didn't tell the 14 internal affairs investigator about it, right? 15 A. I don't believe I was asked. 16 Q. Okay. And you didn't volunteer any of that 17 information, either, right? 18 A. That I didn't volunteer information that I 19 didn't recall? No. 20 Q. No. I mean, I know what you didn't recall 21 today, but in -- whenever you were interviewed three 22 times, you didn't also offer information about, but I 23 knew Sergeant Pfarr was looking at statistics or pulling 24 statistics or I'd heard he looked at statistics or FI 25 cards or anything like that, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1812 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 716 1 A. I just testified that I don't recall if 2 Sergeant Pfarr brought that to my attention. So I 3 wouldn't have been able to bring that up in these 4 interviews. 5 MS. CASTILLO: I know. Okay. Strike that. 6 Nothing further on cross. 7 THE HEARING OFFICER: Redirect? 8 MR. PALMER: No, sir. 9 THE HEARING OFFICER: So we're done with 10 Lieutenant Smith, unless you want to call him in your 11 case and chief? 12 MS. CASTILLO: Correct. 13 THE HEARING OFFICER: So, for today, we're 14 done? 15 MS. CASTILLO: Yes, subject to recall. 16 THE HEARING OFFICER: So you're liberated for 17 now, for today. 18 THE WITNESS: Yes, sir. 19 THE HEARING OFFICER: Thank you very much. 20 THE WITNESS: Thank you, sir. 21 THE HEARING OFFICER: Off the record. 22 MS. CASTILLO: And admonition still stands, 23 right? 24 THE HEARING OFFICER: Yes. We're back on the 25 record. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1813 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 717 1 You're admonished not to discuss your testimony 2 with anybody while the case is pending. 3 THE WITNESS: Yes, sir. 4 THE HEARING OFFICER: Thank you. 5 THE WITNESS: Thank you. 6 THE HEARING OFFICER: So we're off the record. 7 (Discussion off the record.) 8 THE HEARING OFFICER: We were looking at our 9 calendars because it looks like we're going to need a 10 couple more days. 11 So in addition to our next scheduled hearing 12 days, which is July 23 and July 24, we are now adding 13 the following: August 20 and 21, September 2 and 14 October 2. 15 MS. CASTILLO: Correct. 16 THE HEARING OFFICER: Is that right? Very 17 good. I'll just note for the record, I think the 18 parties have agreed, by stipulation, that they're going 19 to be submitting on closing written briefs, rather than 20 oral argument; is that correct? 21 MS. CASTILLO: Correct. 22 THE HEARING OFFICER: All right. 23 MR. PALMER: Yes. 24 THE HEARING OFFICER: We'll set that schedule 25 when it's time to do that. All right. And so that's it Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1814 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 718 1 for today on the record, yes? 2 MS. CASTILLO: Yes. 3 MR. PALMER: Yes. 4 THE HEARING OFFICER: All right. Good. Thanks 5 very much. 6 (The proceedings adjourned at 5:41 p.m.) 7 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 1815 WADDELL ARBITRATION, DAY 3 7/9/2015 McDANIEL REPORTING Page: 719 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 1816 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 720 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 IV PAGES 720- 907 Hiring Authority. ) TRANSCRIPT OF PROCEEDINGS SAN LUIS OBISPO, CALIFORNIA THURSDAY, JULY 23, 2015 9:04 A.M. - 4:04 P.M. REPORTED BY MELISSA PLOOY, CSR #13068 MCDANIEL REPORTING Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1817 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 721 1 THE TRANSCRIPT OF PROCEEDINGS WAS TAKEN AT THE 2 SAN LUIS OBISPO CITY COUNSEL, 990 PALM STREET, SAN LUIS 3 OBISPO, CALIFORNIA, BEFORE MELISSA PLOOY, A CERTIFIED 4 SHORTHAND REPORTER IN AND FOR THE STATE OF CALIFORNIA, 5 ON THURSDAY, JULY 23, 2015, COMMENCING AT THE HOUR OF 6 9:04 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 1818 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 722 1 I N D E X 2 WITNESS DIRECT CROSS REDIRECT RECROSS 3 CAPTAIN CHRIS STALEY 770 796 837 847 4 CAPTAIN KEITH STORTON 856 881 888 5 6 I N D E X T O E X H I B I T S 7 APPELLANT'S MARKED ADMITTED 8 EXHIBIT O 893 896 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 1819 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 723 1 THE HEARING OFFICER: We're going to go on the 2 record. I'm going to say it's 9:04 here on Thursday, 3 July 23rd, 2015, and today we're continuing with -- I 4 believe this is day four of the appeal from the 5 termination of Officer Kevin Waddell. This is still 6 CMMCS Case Number ARB140209, and I'm Chris Cameron. I'm 7 the hearing officer. I'd like to get the appearances of 8 counsel and then we're going to take care of some 9 discovery issues. 10 So, first of all, on behalf of the department. 11 MR. PALMER: Good morning. Greg Palmer for the 12 City of San Luis Obispo Police Department. 13 THE HEARING OFFICER: Very good. Along with? 14 MS. DIETRICK: Christine Dietrick, City 15 Attorney, here as an observer. 16 THE HEARING OFFICER: Very good. And I see 17 Captain Staley is here, as well. And on behalf of the 18 appellant? 19 MS. CASTILLO: Kasey Castillo of Gaspard, 20 Castillo & Harper, with the appellant, Kevin Waddell, 21 his wife, as an observer, Laura Waddell, and Nicole 22 Naleway, associate attorney. 23 THE HEARING OFFICER: Very good. Thank you. 24 We're going to begin the business this morning by 25 putting on the record my rulings and, in one case, it's Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1820 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 724 1 a preliminary set of rulings with respect to two sets of 2 discovery issues that have been raised in the last few 3 weeks. They relate to two subpoenas duces tecum. 4 That's the first issue I want to address, and the second 5 issue relates to four Pitchess motions that were filed 6 to discover various personnel files. 7 So what I'm going to do is put on the record 8 what I've prepared in terms of the ruling, and we'll 9 give the court reporter a chance to make a record of 10 that and, certainly, you can take notes, and then I 11 think I'll stop at the end of each part, and if there's 12 any comments you want to raise or correction to the 13 record, or whatever, we'll go ahead and we'll do that, 14 and then I'll move on to the second issue, the Pitchess 15 motions. We'll do the same thing, and then we'll see 16 where we stand after that. 17 So with respect to the first issue, the 18 subpoenas duces tecum, the department moved to quash 19 parts of two of five subpoenas duces tecum, or SDTs, 20 that were served on it by the appellant under the 21 authority of Sections 1985B and 1987.1 of the California 22 Code of Civil Procedure. I might abbreviate that as 23 CCP. 24 The first SDT that we're going to discuss was 25 served on or about June 17, 2015, and all the years I'm Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1821 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 725 1 referring to here are 2015, unless I say otherwise, and 2 that SDT sought any and all e-mails from January 2013 3 through October 2014 referencing the terms -- and I'm 4 putting this in quotes -- CAT, C-A-T, downtown foot 5 patrol overtime, OT, and variations on those terms. 6 The second SDT, which was served on or about 7 June 16, sought any and all drafts of the administrative 8 investigation -- I'll probably abbreviate that as, 9 capital, AI -- packet prepared by department employees 10 regarding the pending charges against appellant, 11 semi-colon, any and all narratives and/or synopses 12 included in such AI packet, semi-colon, any and all 13 attachments to the e-mails dated January 15 and February 14 5, 2014, between Lieutenant Bledsoe and Lieutenant 15 Proll, semi-colon, and a privilege log, I'm assuming, if 16 that's applicable. 17 The department's motion to quash, which was 18 served on or about July 7 objects on the grounds that 19 the information sought is irrelevant, immaterial and/or 20 unsupported by good cause and the appellant's 21 opposition, which was served on or about July 16, 22 attempts to rebut these points. 23 Regarding the first SDT, these e-mails appear, 24 to me, to be relevant and material to the CAT shift 25 event. Appellant is charged with not only being late Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1822 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 726 1 for CAT shift duty, but also making a false statement 2 about having his supervisor's permission to report late 3 for a CAT shift assignment. The underlying conduct is 4 alleged to have occurred during the period covered by 5 the e-mail sought; although, it's, obviously, a bigger 6 period, single dates. 7 Moreover, there appears to be good cause for 8 producing these e-mails. To date, substantial evidence 9 has been received as to why, when and how the CAT shift 10 was created and staffed. The e-mail sought would appear 11 to shed a brighter light on the same issues. Besides to 12 date, it is unclear to me, anyway, whether or what 13 privileges might attach to the information contained in 14 these e-mails, and I'm not ruling on every privilege 15 issue. I'm assuming those could still be raised. So, 16 in my view, these e-mails should be produced. 17 Regarding the second SDT, this poses a closer 18 question, in my mind. On the one hand, the attachments 19 to e-mails already produced would appear to be relevant 20 material and supported by good cause. These ought to be 21 produced forthwith absent any legitimate claim or 22 privilege. 23 On the other hand, I was concerned about the 24 draft AI materials, including drafts of the packet, 25 narratives and synopses, which, to me, would appear to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1823 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 727 1 have little probative value, but I don't think that's 2 the test here. The department raises the good point 3 that appellant was terminated based on the final version 4 of the packet, not in any drafts therein, and I am, 5 certainly, well aware of that. 6 To this argument, the appellant replies, in 7 general, that such drafts provide -- and I'm quoting 8 from their brief responding to the motion to quash at 9 Page 6, "Provide evidence relating to the pretext and 10 motivation surrounding appellant's termination," closed 11 quote. Although the question is close, I'm inclined to 12 give appellant the benefit of the doubt and direct that 13 the information sought be produced. 14 So in reaching these conclusions, and this is 15 true of the second set of rulings I'm going to make, 16 too, I make no finding as to either the admissibility of 17 the information sought or, more importantly, the weight 18 properly to be given such information. I just want to 19 make that clear. 20 Accordingly, subject to the foregoing 21 qualifications and conditions, such as reserving rights 22 to raise the privilege, and I would review that 23 in-camera, the department's motions to quash are denied. 24 The department is directed to produce the information 25 sought by the two SDTs in question, subject to the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1824 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 728 1 raising of any privileges that would require in-camera 2 inspection by me. So ordered. 3 So any comments, reservations, exceptions you 4 want to note for the record? 5 MR. PALMER: Uh, yes. As it relates to the 6 e-mail SDT, we did not see that these e-mails were 7 relevant, probative, important, at all. This is not an 8 e-mail case. I think that's made clear by some of the 9 most recent testimony we've had with Lieutenant Smith. 10 From everything I've read thus far -- we 11 haven't heard from Mr. Waddell, but from everything I've 12 read thus far, I believe there's going to be evidence 13 that whatever situation arose on October 19th, 2013, 14 which prevented him from getting to the CAT shift on 15 time, from what I've read, arose that morning. I'm 16 going to say somewhere around 9:30 a.m. That's where I 17 believe the evidence is going. I could be wrong. I'll 18 keep an open mind. 19 And Mr. Waddell had the time to send a text 20 message in the next hour or hour and a half to Adam 21 Stahnke, saying he was going to be late, but he didn't 22 give that respect to Sergeant Pfarr, when he could 23 easily have grouped the text or sent another text. 24 The issue was raised from counsel in the 25 questioning in relation to Exhibit J, K and L, which are Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1825 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 729 1 e-mails that preceded a particular shift on which a 2 change was requested either coming in late, leaving 3 early or completely changing out the officer who is 4 going to work that shift. Those e-mails came in 5 advance, as Lieutenant Smith wanted, as he expected, 6 sometimes a couple, three days before the shift 7 occurred, sometimes, I think, as much as 20 days in one 8 instance. I don't remember which exhibit that applied 9 to, but I think it was a substantial period of time in 10 advance. That's where we might see an e-mail. That's 11 where -- if this were that case, that's where an e-mail 12 would be relevant. This is not an e-mail case. This 13 situation came up, apparently, that day, and he had time 14 to send a text, but he didn't send an e-mail. Nothing 15 that I've seen in Mr. Waddell's statements said anything 16 related to coming in late on October 19th, 2013, was 17 related to an e-mail. He didn't send an e-mail. 18 Nothing that Lieutenant Smith said said that there's any 19 e-mails about the situation, the event that occurred on 20 October 19th, 2013. 21 So I understand the ruling and I respect it. 22 There has been some testimony about the evolution of the 23 CAT shift, and if that's -- if that's the basis upon 24 which the ruling was made to deny the e-mail SDT, so be 25 it, but as it relates to October 19th, 2013, as I see Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1826 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 730 1 the state of the evidence, there's no e-mail that's 2 going to be potentially relevant, and they haven't 3 stated good cause. They've stated boilerplate good 4 cause. 5 As it relates to the drafts of the 6 administrative investigation and the attachments, I must 7 say, I'm quite surprised by the ruling, but so be it. 8 I've been surprised before. I understand the ruling in 9 terms of the attachment to the e-mail already in 10 evidence. I don't understand the ruling as it relates 11 to the drafts, and there is going to be some discussion 12 about that between Ms. Dietrick and I. 13 THE HEARING OFFICER: Let me interrupt you for 14 one second. 15 MR. PALMER: Sure. 16 THE HEARING OFFICER: I would really encourage 17 that you discuss that. I don't even know if there are 18 any drafts. I don't know if you know there are any 19 drafts. So I'm not sure, as I already indicated, what 20 kind of light that's going to shed on this, but I'm 21 giving the appellant the benefit of the doubt. So go 22 ahead. I'm sorry. 23 MR. PALMER: I appreciate that. And we're 24 going to have some discussion, and I can tell you 25 there's probably going to be a number of privileges Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1827 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 731 1 asserted, may even be a request for in-camera review of 2 some of those or maybe a court action. I don't know, 3 other than saying I'm surprised and I need to consider 4 what the next step is after that ruling. I'm going to 5 drop my voice in terms of that at this point. 6 THE HEARING OFFICER: So noted. 7 MS. DIETRICK: If I may add -- 8 THE HEARING OFFICER: Go ahead. 9 MS. DIETRICK: -- just a couple of additional 10 points, just from the perspective of the custodian and 11 the office in charge of review of the incredible volume 12 of e-mails that are, likely, responsive to this, I just 13 want to note for the record that this is incredibly 14 cumbersome and time-consuming and resource-intensive. 15 THE HEARING OFFICER: Give me an idea how 16 cumbersome it is. 17 MS. DIETRICK: Well, when you run words like 18 CAT -- I'll give you, sort of, an extreme example. 19 At some point, we got direction coming from 20 public comment to do a white paper on cats on leashes. 21 So there are -- there are a volume of things that are in 22 no way relevant to this action or the CAT team or the 23 police department, but are, nonetheless, going to be 24 caught in the search that our IT department will have to 25 do to capture the search terms, and I can tell you that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1828 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 732 1 we've done a preliminary search with the terms 2 identified and there are, I believe, 1,600 e-mails 3 caught in that. 4 I have two people in my office who are 5 representing, in addition to this action, you know, 6 overseeing this action, represent nine city departments, 7 the City Council of Planning Commission and several 8 advisory bodies and responding to members of the public 9 on a routine basis, as well as all staff in this 10 400-employee agency. 11 So to take the time, the resource to review for 12 the, potentially, very limited relevance and probative 13 value in this case, whereas, Mr. Palmer noted, there is 14 not an issue of e-mail communication and, certainly, not 15 in that large a time window at issue is an incredible 16 burden on the resources of my office. 17 So I'd just like to note that for the record, 18 and I would note that with respect to the late-arriving 19 motions, SDTs, Public Records Act request, when, you 20 know, they, clearly, knew where they were going with 21 this well in advance of this hearing, which has been 22 scheduled for some time. 23 THE HEARING OFFICER: Well, that's a separate 24 issue for me because I'm not sure when this case is 25 going to end. There always seems to be another date Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1829 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 733 1 that we need. So that's not the issue, but what would 2 help me is if, at least, from the city's perspective, is 3 there a way to narrow this to issues involving the 4 appellant, for example, that would be less burdensome? 5 I realize you're not really in favor of this, at all, 6 but -- 7 MR. PALMER: Understood. 8 THE HEARING OFFICER: -- there's going to be 9 more discovery here, and the question is how much, I 10 think. 11 MS. DIETRICK: Right. And I did ask if there 12 was a possibility to narrow somewhat, but if we're doing 13 it by key word search, there's not. So if we could 14 limit to and from Officer Waddell, that there's been, 15 generally, a much larger scope requested than that, 16 certainly, if we narrow the time frame, that, 17 substantially, narrows the likely pool of results that I 18 have to have an attorney review for privilege and 19 exemption. 20 THE HEARING OFFICER: Understood. Okay. 21 Response? 22 MS. NALEWAY: I'm going to handle the response. 23 THE HEARING OFFICER: Thank you. 24 MS. NALEWAY: In terms of the first argument in 25 terms of the CAT e-mails, it's appellant's position that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1830 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 734 1 it's extremely relevant considering it shows the 2 practice and customs and the expectations that are set 3 in place by the San Luis Obispo Police Department in 4 regards to this overtime of the CAT shift. 5 So, I guess, in reference to the one e-mail and 6 not being an e-mail case and stuff, we feel like it 7 shows -- I mean, we've heard testimony in regards to the 8 practice and customs of the CAT shift. So it's the 9 appellant's position that it's extremely relevant in 10 regards to those issues. 11 And then, obviously, in regards to the drafts 12 of the IA, we've already received, you know, e-mails in 13 regards to those, and they're included as attachments. 14 So we believe that does go to the pretext and motivation 15 defense that the appellant is bringing up. 16 THE HEARING OFFICER: Well, the question is how 17 much more info do you need? I mean, there's some 18 general background about CAT and, certainly, I asked 19 questions about it because I wanted to know, but I've 20 got to tell you, based on what I'm hearing, I don't know 21 how much more useful it's going to be. I agree with you 22 it's relevant, but they raised a legitimate issue about 23 how burdensome. 24 So I'm wondering if there's a way to narrow the 25 field a little bit so they're not sifting through 1,600 Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1831 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 735 1 e-mails and is that going to shed light on the key 2 issues about whether there was a false misrepresentation 3 and whether he was late. That's, really, all I'm 4 looking at. 5 MS. CASTILLO: I think we have worked with the 6 city attorney's office on narrowing the scope every time 7 that they've asked us to narrowly tailor or turn into a 8 different -- I believe they've asked for -- right. 9 We've -- we've tailored key words, we've removed key 10 words, we've removed dates. Everything that we have 11 been asked, we've gone along with. There was an initial 12 request with a preliminary disclosure. We agreed to 13 that as opposed to the original -- what would have been 14 a much rander disclosure. So every time we've received 15 a request from the city attorney's office to make the 16 discovery request smaller, we've complied. 17 THE HEARING OFFICER: So could that happen 18 here, is what I'm asking? 19 MS. CASTILLO: We've always been doing that at 20 every turn. 21 THE HEARING OFFICER: So if I were to direct 22 that the appellant have some further discussions with 23 the city attorney about coming to some reasonable 24 accommodation in terms of narrowing the scope, you would 25 be willing to do that? I'm not saying how that's going Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1832 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 736 1 to come out. 2 MS. CASTILLO: We've received a response 3 yesterday regarding that from the assistant city 4 attorney. 5 MS. DIETRICK: Which indicates that, even with 6 the narrowed parameters, we're looking at a volume of 7 e-mail that would take 30 to 45 days to complete -- 8 MS. CASTILLO: Which puts us -- 9 MS. DIETRICK: -- with my one available 10 resource in my office. 11 THE HEARING OFFICER: I hear you, and I'm aware 12 of that. I'm going to modify what I said to direct that 13 discussion, and I'm just going to add one more thing. 14 I'm reluctant to say no. I'm not worried about 15 the time frame, for the reason I said, given that this 16 is a termination and this is an officer's career. 17 So with that in mind, I'm giving them the 18 benefit of the doubt on it, but in terms of more days, 19 we have them. So let's see if it can be narrowed 20 further, but let's plan to do it, unless you go see a 21 superior court judge. Anything else? 22 MS. CASTILLO: No. And so should we continue 23 to have that discussion with the assistant city attorney 24 we've been dealing with or the observer in this hearing? 25 THE HEARING OFFICER: Well -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1833 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 737 1 MS. DIETRICK: Yes. I'd appreciate it if you 2 continue to have those discussions with the assistant 3 city attorney who has been charged with review of the 4 volume of documents. 5 THE HEARING OFFICER: And that's Mr. -- his 6 name starts with a B? 7 MS. DIETRICK: Jon Ansolabehere. 8 THE HEARING OFFICER: Very good. All right. 9 Okay. Let's move on to the Pitchess motions, which is 10 the second set of discovery issues to be addressed. 11 My information is that four discovery motions 12 were directed to the department under the authority of 13 Sections 1043 and 1045 of the California Evidence Code 14 as interpreted by Pitchess versus Superior Court 11 15 Cal.3d 531 (1974) and its progeny. I'll refer to them 16 collectively as the Pitchess motions. 17 On or about June 25, 2015, the appellant filed 18 with me and served on various persons -- and I'll 19 explain persons in a moment -- the first Pitchess motion 20 relating to the personnel file of Sergeant Chad Pfarr, 21 plus related supporting documents. The person served in 22 that with respect to that motions were Sergeant Pfarr, 23 City Attorney Dietrick, Mr. Palmer and me. 24 On or about June 29, the appellant filed with 25 me and served on various persons three other Pitchess Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1834 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 738 1 motions relating to the personnel files of Lieutenant 2 Jeff Smith, Lieutenant John Bledsoe and Lieutenant Bill 3 Proll, also with related supporting documents. Those 4 persons served there were the same folks I mentioned, 5 but instead of Sergeant Pfarr, the personnel file of the 6 particular person, Lieutenant Smith, Lieutenant Bledsoe, 7 Lieutenant Proll, that's who got served. 8 As to -- oh. Hold on here. In response, on or 9 about July 7, the department filed with me and served on 10 various persons its opposition to the Pitchess motions, 11 also with related documents, and on or about July 16, 12 the appellant filed with me and served on the same 13 persons his reply to the department's opposition. 14 Now, as to Sergeant Pfarr and Lieutenant Smith, 15 the object of these Pitchess motions is to obtain 16 information relating to any allegation, investigation, 17 and/or discipline of Sergeant Pfarr, Lieutenant Smith or 18 both for failure to properly supervise appellant. 19 As to Lieutenant Bledsoe and Lieutenant Proll, 20 the object of these motions is to obtain information 21 relating to the personnel files of each, Lieutenant 22 Bledsoe and Lieutenant Proll, including information 23 about any AI investigation or inquiry of him, any and 24 all complaints, formal or informal, filed against him, 25 and any complaint and/or investigation involving Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1835 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 739 1 misleading or false statements in any official matter, 2 malicious treatment of witnesses, improper use of law 3 enforcement power and propensity and motivation to 4 retaliate and/or fabricate by either or both Lieutenant 5 Bledsoe and Lieutenant Proll. 6 It is established that in my capacity as 7 hearing officer, I have the authority to rule on these 8 motions in this administrative proceeding under the 9 authority of Riverside County Sheriff's Department 10 versus Stiglitz, also known as the drink water case, 60 11 Cal.4th 624 from 2014. 12 It is also well-established that peace officer 13 personnel records maintained by any state or local 14 agency are confidential and may not be discovered, 15 except in accordance with the procedures set forth in 16 the Evidence Code. At least two basic requirements must 17 be met. 18 First, under Section 1043(b)( 3), the applicant 19 must show good cause for the discovery sought. Second, 20 under Section 1045(a), the information sought must be 21 relevant to the subject matter of the pending 22 proceeding, and these principles are articulated in a 23 case called City of Santa Cruz versus Municipal Court, 24 also known as the Kennedy case, 49 Cal.3d 74 from 1989 25 and its progeny. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1836 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 740 1 What follows are my preliminary rulings on each 2 of the Pitchess motions offered, subject to a full 3 in-camera review of the materials sought and offered, 4 subject to completion of an important housekeeping 5 matter that I'll discuss in a moment. 6 Regarding the Pitchess motion relating to the 7 personnel file of Sergeant Pfarr, I'm inclined to grant 8 this motion, subject to my in-camera review and 9 consideration of any appropriate objections based on 10 either privilege or timeliness or other exceptions 11 reserved under Section 1045(b) of the Evidence Code. 12 This Pitchess motion was supported by good 13 cause insofar as I received undisputed evidence of an 14 investigation resulting in Sergeant Pfarr's discipline 15 for failure to properly supervise appellant with respect 16 to the Bentley event. Some of that evidence actually 17 came in at the hearing or it was referred to at the 18 hearing, a prior hearing. 19 It was also apparent that the information 20 sought is relevant to the subject matter because it 21 bears on Sergeant Pfarr's credibility as a witness to 22 the CAT shift event, as well as the Bentley event. 23 Because Sergeant Pfarr was offered by the department as 24 a key percipient witness to both events, it is important 25 that his personnel file be discovered so that I may Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1837 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 741 1 weigh his credibility. 2 Regarding the Pitchess motions relating to the 3 personnel files of Lieutenant Bledsoe and Lieutenant 4 Proll, however, I'm inclined to deny these motions. 5 Neither of these Pitchess motions was supported by good 6 cause to believe that either supervisor was the subject 7 of any investigation, inquiry or complaint of any type. 8 Moreover, in light of the fact that neither supervisor 9 appears to be a percipient witness to anything other 10 than their own follow-up investigations of appellant's 11 alleged misconduct, I doubt that this information sought 12 is relevant to the subject matter of the appending 13 appeal. To the extent that it is, at least, on the 14 record so far, I would find that any potential facts 15 sought to be disclosed are so remote as to make 16 disclosure of little or no practical significance as 17 provided in Section 1054(b)( 3) of the Evidence Code. 18 That ruling, of course, is without prejudice. If good 19 cause is later shown, then I would, certainly, revisit 20 it. 21 Finally, regarding the Pitchess motion relating 22 to Lieutenant Smith, I'm inclined to grant this motion, 23 but I'm concerned that a more persuasive showing of good 24 cause is required. To date, there is little in any 25 affidavit or declaration, whether based on personal Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1838 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 742 1 knowledge or information and belief, to suggest that 2 Lieutenant Smith was the object of any allegation, 3 investigation and/or discipline for failure to properly 4 supervise appellant, in particular, or failure to 5 properly carry out his duties, in general. 6 For the reasons stated above with respect to 7 Sergeant Pfarr, such information with respect to 8 Lieutenant Smith, who is also a percipient witness to 9 some of the underlying events, would be relevant to the 10 subject matter, but I will require a further showing of 11 good cause before issuing an appropriate order. And if 12 such an order is issued, the personnel file of 13 Lieutenant Smith will also be subject to in-camera 14 review. 15 An important housekeeping matter remains. This 16 housekeeping matter prevents me from being able to issue 17 a final order as to the Pitchess motions today, which is 18 why my rulings are preliminary. 19 The department has objected to all four 20 Pitchess motions on the ground that the department was 21 not properly served. Now, I just want to note for the 22 record, the department also objects on the ground that 23 one or more of the motions was served by e-mail or some 24 improper means. I'm not going to resolve that objection 25 today because of what I'm about to say. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1839 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 743 1 I'm inclined to agree with the department on 2 the service question. That's what you get for hiring a 3 civil procedure professor to be your hearing officer. 4 Under Section 1043(a), the party seeking discovery must 5 file a written motion with the appropriate court or 6 administrative body, quote, "upon written notice to the 7 government agency which has custody and control of the 8 records," period, closed quote, and that's Cal Evidence 9 Code 1043(a). 10 Here, such agency would appear to be the 11 department, but there's no proof that the department or 12 its representative authorized to accept service of 13 process was ever served. 14 For example, with respect to the Pitchess 15 motion relating to Sergeant Pfarr's personnel file, the 16 appellant served the motion on four persons, Sergeant 17 Pfarr, City Attorney Dietrick, Mr. Palmer and me. 18 Although Sergeant Pfarr, who is certainly entitled by 19 law to receive notice of the demand to discover his 20 personnel file, it was not shown that he was authorized 21 to accept service of process on behalf of the entire 22 department in its capacity as custodian of records, nor 23 was it shown that either City Attorney Dietrick or 24 Mr. Palmer was authorized to accept such service, and I 25 certainly wasn't authorized to do so, and that would Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1840 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 744 1 pose an obvious conflict of interest. Similar defects 2 would appear to accompany service of the other three 3 Pitchess motions. 4 Now, at a prior hearing, the department 5 represented that Captain Storton was the custodian of 6 records and he was also authorized to accept service of 7 process, if I heard Mr. Palmer state that correctly. 8 So, therefore, out of an abundance of caution, 9 I'm going to direct that either Captain Storton or some 10 other official representative of the department who is 11 authorized to accept service of process, I don't know if 12 that's Captain Staley or somebody else, be re-served 13 with the Pitchess motions and that the parties refile 14 the appropriate paperwork in support of and opposed to 15 these motions in the time periods prescribed by law, or 16 stipulate thereto. 17 I'm taking this step to ensure that the 18 substantive and procedural due process requirements of 19 the Evidence Code are adhered to in this administrative 20 tribunal, just as they would have to be in a court of 21 law. 22 Barring receipt of any new information that 23 materially affects the foregoing reasoning, however, I 24 would expect to finalize, in due course, the discovery 25 order as I have preliminarily described it here. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1841 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 745 1 In reaching these preliminary conclusions, I 2 make no finding as to either the admissibility of the 3 information sought or the weight properly to be given 4 such information. 5 Accordingly, subject to the foregoing 6 qualifications and conditions, the department 7 preliminarily will be directed, in due course, to 8 produce the personnel files of Lieutenant Pfarr and 9 Lieutenant Smith, in accordance with these preliminary 10 findings, that is, of course, subject to the showing of 11 good cause for Lieutenant Smith that I did not see in 12 any declaration or affidavit. 13 The appellant and all parties are directed that 14 the records disclosed may not be used for any purpose 15 other than this administrative appeal and/or court 16 proceedings arising out of this administrative appeal. 17 So ordered preliminarily. 18 So I have a couple other things to add, but I 19 think it's best to let you guys comment first. So I 20 don't know which of you would like to go first, 21 Ms. Castillo or Mr. Palmer. 22 MR. PALMER: I'll take the laboring oar. 23 Forgive me. Maybe it's me. I'm a bit confused. The 24 way I process the ruling was that, right now, today, 25 this -- these motions were not properly served and we're Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1842 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 746 1 not going to conduct any hearing today. Am I right or 2 wrong? 3 I understand you've, sort of, projected what 4 your thoughts are in terms of the merits, but, I mean, I 5 could go through -- last night, I could go through all 6 the problems, and I will. I think I probably need to 7 make a record, but I'm just trying to make sure that, 8 right now, today, you're finding that none of the 9 motions were properly served and, therefore, no hearing 10 should be conducted? 11 THE HEARING OFFICER: Well, yes. Yes and no. 12 Here's what I'm saying. I'm saying this is a problem 13 and it needs to get fixed, but based on what I know, 14 unless something changes, this is where I'm inclined to 15 go with the ruling. 16 Now, if that allows you to reach some 17 accommodation in the meantime before we next get 18 together -- I mean, if you want to go -- yes. I would 19 expect what has to happen is that the whole thing's got 20 to get renoticed and re-served, but if the parties and 21 what they have to say isn't going to change, maybe you 22 can find a happy solution before then; otherwise, yes, 23 we would start the clock over again and they would have 24 to redo the paperwork. And rather than having wasted 25 everybody's time up till now, I'm trying to give you Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1843 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 747 1 some indication of where I'm going, unless the record 2 changes. Does that help? 3 MR. PALMER: That's very helpful. Thank you. 4 If you'll indulge me, I need to make a record. 5 THE HEARING OFFICER: Go ahead. 6 MR. PALMER: And I'll try to modify some of my 7 comments that I thought about saying yesterday in terms 8 of the tentative ruling. 9 Pitchess in the criminal court context is not 10 new. It's been around since 1974. I jumped into it in 11 1989. I've been doing Pitchess motions for 26 years. 12 Pitchess motions in the civil court context are less 13 frequent, but still not new. They're much more rare, 14 but they're not new. Pitchess in the administrative 15 case context are completely brand new -- 16 THE HEARING OFFICER: Yep. 17 MR. PALMER: -- which I prefer, actually. I 18 know how it used to be. It used to be the wild, wild 19 west. Some arbitrators were faced with this situation 20 prior to the Riverside Sheriff case coming out, some 21 arbitrators would say we're not going to talk about 22 anybody else's case except the appellant, wouldn't allow 23 it, at all, some arbitrators would say this is a 24 confidential hearing, let's see what you got, let's hear 25 what you have to say and bring in other personnel files, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1844 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 748 1 heck, it's confidential, nobody else is here but us 2 chickens, anyway, and other arbitrators are saying where 3 is your Pitchess motion. It was a wild, wild west. 4 Now, with the Riverside Sheriff's Department 5 case from the Supreme Court last fall, which some of you 6 probably noted I was Ameche brief counsel, at least, in 7 the Court of Appeal, now we have some formality to it. 8 Now it has to be done. The claim in Riverside Sheriff's 9 Department case was a disparage treatment context. In 10 other words, I want to get into other officers' 11 personnel file because I was treated in a certain way 12 for a particular type of misconduct, other officers 13 engaged in the same or similar type of conduct and they 14 were treated less severely. That was the context of 15 that Pitchess motion. 16 In all the friend of the court briefs, at least 17 in mine, we tried to convince the court, look, there not 18 only should be a Pitchess motion in this context, but it 19 should bypass you, meaning -- no offense -- 20 THE HEARING OFFICER: None taken. 21 MR. PALMER: -- it should bypass you and go 22 straight to a judge. Okay? Because that's what the 23 code says. 24 Now, we won the first part, we didn't win the 25 second part, but, at least, we have some formality of Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1845 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 749 1 when we're going to do this now. You have to have a 2 Pitchess motion up front, and the Supreme Court said 3 that labor arbitrators are well-equipped to hear and 4 rule on these motions and do the in-camera review as a 5 judge would, and I want to emphasize that. 6 The Supreme Court in Riverside Sheriff's 7 Department did not carve out any special rule of 8 service, any special rule of notice, any special rule of 9 the merits on a Pitchess motion when we're in the 10 administrative case context, and it reaffirmed that just 11 a couple weeks ago, back when we were together on or 12 about June 9th, right prior -- July 9th, right prior 13 to -- 14 THE HEARING OFFICER: What's the name of that 15 case? I couldn't remember it. 16 MR. PALMER: The brand new one? 17 THE HEARING OFFICER: Yes. 18 MR. PALMER: People versus Superior Court, real 19 party in interest, Johnson. 20 THE HEARING OFFICER: Johnson. Yes. I'm aware 21 of Johnson. 22 MR. PALMER: And it's kind of a different 23 context, but I think it's similar. 24 THE COURT: Well, but, as I recall, what I took 25 away from that case is that the rules here got to be the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1846 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 750 1 same as the rules out there. 2 MR. PALMER: Absolutely. 3 THE HEARING OFFICER: Understood. 4 MR. PALMER: And the access from somebody who 5 doesn't already have access, like Captain Staley and 6 chiefs and things like that, the access to any 7 confidential personnel file has to be by way of a 8 Pitchess motion. 9 To put it pejoratively, the courts in the State 10 of California continue to say to everybody here, what 11 part of Pitchess don't you understand? That's how you 12 get it. Okay? 13 So since it was reaffirmed, now we have the 14 Pitchess motion, and I think you -- I appreciate the 15 time and energy and effort you've, obviously, put into 16 this. I greatly appreciate it. I think that you 17 have -- you have noted that you have to take your labor 18 arbitrator hat off here and put your judge hat on. The 19 good cause -- there has to be good cause. It's a 20 two-step process. We're only at the first step. The 21 first step, there has to be a demonstration that there's 22 good cause to even allow you to stick your nose in the 23 file. As one judge told me several years ago, there has 24 to be good cause for me to stick my nose in the file, 25 and that is, basically -- basically, on the strength of Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1847 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 751 1 the declaration. 2 I often say in Pitchess motions, this Pitchess 3 motion rises or falls on the strength of the 4 declaration. It doesn't rise or fall in any in-court 5 statements made by counsel that are unsworn, not on 6 information or belief. It doesn't rise or fall in any 7 intrinsic kind of information. It rises or falls on the 8 declaration and the strength thereof. If the 9 declaration is not strong enough, hearing is over, no 10 in-camera review. The second stage is the in-camera 11 review. You only get to that stage if the first stage 12 is met. 13 So you stand here as a judge ruling on a 14 Pitchess motion, which seeks to invade a 15 state-recognized confidentiality right under Penal Code 16 Section 832.5, 832.7 and 832.8. Those sections 17 established confidentiality of peace officers' personnel 18 files, stated that they should only be pierced on a 19 showing of manifest necessity, and you have to rule as a 20 judge would, not a labor arbitrator, which, I think, 21 you're doing. 22 This is not just a situation which involves 23 Mr. Waddell and the city. This is a situation that 24 involves outside third parties. The rules of evidence 25 apply with the same rigidity in an administrative case Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1848 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 752 1 when we're talking about privilege, and that's what 2 we're talking about. 3 The four officers named in these motions have 4 status here of, simply, a witness. And just like in 5 criminal court and civil court, there's a privilege of a 6 third party at issue here. So there has to be good 7 cause to look in the file. 8 With that background, the first problem that I 9 have with all of these motions, as I stated, and I'll 10 try not to be repetitive from my opposition, is that 11 they were broken down into four separate motions. They 12 should have had one motion with four officers. That's 13 what public defenders do. 14 THE HEARING OFFICER: Is that the usual 15 practice, in court, anyway? 16 MR. PALMER: Absolutely. 17 THE HEARING OFFICER: All right. 18 MR. PALMER: Now, to be pejorative -- not to be 19 too pejorative, some public defenders just look at the 20 police reports, mind all of the names that they can find 21 in it, and plop them into a Pitchess motion and then 22 it's my job to sort through who really was involved in 23 the fracas as the case is pointed out, but they usually 24 do it in one motion. So I don't know why we have four 25 separate motions here. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1849 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 753 1 I believe that it was to harass and to inundate 2 us from -- with serial discovery-type motions, trying to 3 distract us from the trial because that's what some 4 labor counsel do. I've seen it. It's not hard to 5 diagnose, but that's my first problem. 6 The second problem that I have is that there 7 should have been a pretrial motion. This shouldn't have 8 been sprung on us at the hearing. Every time -- with 9 maybe about five exceptions in the last 26 years, every 10 time I've had a Pitchess motion in a criminal context or 11 a civil context, it's been pretrial. 12 Okay. I had one that came up during a murder 13 trial in El Monte where my custodian called me up and 14 said I had to be down there at 1:30 with the personnel 15 file. What happened is, some information that was not 16 anticipated by either side came up in the jury trial on 17 an El Monte murder case. Well, I convinced the judge 18 that she can shorten time, but there has to be a written 19 motion. It's the only time I had it during trial, 20 except in this case. They should have been pretrial 21 motions. 22 If they -- I'm sure that they had these ideas 23 in their mind back in March, back in April, when 24 everybody was gearing up for this trial; yet, they 25 decided to spring it on us and slide it across the table Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1850 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 754 1 to us at the hearing, at least, as it relates to the 2 Sergeant Pfarr Pitchess motion. So, again, I think that 3 was in order to harass and distract. 4 The third problem I have is the manner of 5 service which you've alluded to. 1043, Subdivision A, 6 says written notice must be made to the governmental 7 agency, which has custody and control of the records. 8 That's clear. It's unambiguous. Here, that is the San 9 Luis Obispo Police Department. 10 These four Pitchess motions were served by two 11 different means, as you've related to -- alluded to. 12 Sergeant Pfarr's was slid across the table to you, the 13 hearing officer, me, the city attorney and Sergeant 14 Pfarr. Well, nobody in that list is the San Luis Obispo 15 Police Department. 16 Even public defenders get this one right, most 17 of the time. Not all of the time, but most of the time. 18 Most of the time, public defenders will send some 19 investigator or bring them down, themselves, send some 20 clerk down to the Monte Bella Police Department from the 21 East Los Angeles Judicial District, which isn't too far 22 down Beverly Boulevard, and they put the Pitchess motion 23 on the public counter of the Monte Bella Police 24 Department. That's good service. It's up to the Monte 25 Bella Police Department to train their staff to Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1851 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 755 1 recognize what a Pitchess motion is, what it looks like 2 and get it to the proper people. 3 That hasn't been done. There's been no service 4 of these to Sergeant Pfarr slid across the table. The 5 other three were all sent to Lieutenant Jeff Smith. I 6 can only go by the proof of service. All three of them 7 were sent to -- 8 THE HEARING OFFICER: Can I just -- I'm sorry 9 to interrupt you, but I want to make sure I'm on board 10 with two things. 11 MR. PALMER: Sure. 12 THE HEARING OFFICER: One is, Lieutenant Smith 13 is not authorized, on behalf of the department, to 14 accept service of process -- 15 MR. PALMER: That is correct. 16 THE HEARING OFFICER: -- for this matter or for 17 anything. Is that your position? 18 MR. PALMER: That's what I was getting to. 19 THE HEARING OFFICER: And then I assumed that 20 Mr. Dietrick, who is the city attorney, is not that 21 person for the department? 22 MR. PALMER: That is correct. 23 THE HEARING OFFICER: She represents the whole 24 city, not -- the department's got somebody else doing 25 that -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1852 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 756 1 MR. PALMER: That is correct. 2 THE HEARING OFFICER: -- for personnel matters. 3 All right. I just wanted to make sure. 4 MS. DIETRICK: It is not accurate that the 5 department has separate counsel. We have two attorneys, 6 as I mentioned before, in the City of San Luis Obispo, 7 myself and my assistant, Jon Ansolabehere. The police 8 department does not have special counsel. However, I am 9 not the custodian of record in any police personnel 10 file. 11 THE HEARING OFFICER: Well, I would just 12 observe -- I might as well just put this on the record. 13 In my experience, it would be very unusual if 14 any attorney, city attorney included, would be 15 authorized by their client to accept papers. I was a 16 practicing lawyer once and that was not done. So it 17 doesn't surprise me. Go ahead. 18 MR. PALMER: So had these Pitchess motions been 19 brought on the public counter, set on the public counter 20 during regular business hours, we would have no problem. 21 Had these Pitchess motions been sent by U.S. Mail with 22 proper timely service directed to the chief of police, 23 who is the de jure custodian, there are several de facto 24 custodians for different types of records, typically, 25 but the de jure custodian is the chief of police, we'd Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1853 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 757 1 have no problem. 2 If the Pitchess motions were served by mail 3 with a proof of service that said directed to the 4 custodian of records of the San Luis Obispo Police 5 Department, we'd have no problems. None of these 6 motions were served in that matter. 7 THE HEARING OFFICER: Can they be served by 8 e-mail -- 9 MR. PALMER: No. 10 THE HEARING OFFICER: -- to Captain Staley? 11 MR. PALMER: Not without specific -- 12 THE HEARING OFFICER: You don't have a -- I 13 just want to put this on the record. 14 My understanding is some agencies have a 15 website where they say this is the person and you can 16 e-mail it to them, but that's not in SLO? 17 MR. PALMER: That is not the case here. 18 THE HEARING OFFICER: All right. I just want 19 to make sure. 20 MR. PALMER: Last -- my last issue with the 21 service is even if we could, somehow, get a -- get 22 around all of these service problems, it still wasn't 23 served in a timely manner. The statute says that it has 24 to be served within -- in compliance with 1005-P, with 25 the Code of Civil Procedure, which requires 16 court Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1854 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 758 1 days' notice if made by personal service. 2 As to Sergeant Pfarr, that was never done. As 3 to the other three, they were put in the U.S. Mail. 4 That's perfectly good service, again, if they were 5 directed to the proper people, not just Lieutenant Jeff 6 Smith. 7 If they were directed to the proper people, 8 the -- when you serve it by mail, you have to add five 9 additional calendar days. As I count the days from the 10 service on June 30, because you don't count 29th to July 11 23rd, that's 17 court days where 16 court days, plus 12 five additional calendar days, had to be -- had to be 13 provided, and so they missed the timing even if we can 14 get across the fact that it wasn't properly served on 15 the right people. 16 Now, let me say something, going back to my 17 opening comment. Pitchess motions in the criminal court 18 are commonplace. Pitchess motions in the civil court 19 are less commonplace, but, at least, they're not new. 20 Virtually, every time I bring up a notice or service 21 problem in those contexts, I win. They have to re-serve 22 it. They have to re-serve it, they have to refile it. 23 Sometimes, the court continues it to -- 24 THE HEARING OFFICER: You're winning here, too, 25 by the way, on that issue. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1855 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 759 1 MR. PALMER: Everything was tentative, it 2 sounded like, to me. 3 THE HEARING OFFICER: That part's not 4 tentative. What's tentative is what I would do if the 5 matter was properly in front of me. I'm trying to save 6 everybody the time, trouble and expense of guessing 7 what's going to happen later because I don't think it's, 8 at least -- I didn't want it to be a mystery. 9 I also wanted you to be able to preserve your 10 right if you're going to run to a real judge and a real 11 court and take care of that, for the very reason you 12 said, which is this is all brand new, and I may be 13 getting it all wrong. I don't know. So that's it. 14 But in terms -- the reason why I can't make a 15 final order and, therefore, I guess, there's -- you 16 know, there's no order for anyone to do anything other 17 than go and to re-serve because the service has not been 18 properly effected, in my view, and one of the things I 19 am sensitive to, and this is something that the 20 appellant should appreciate, too, is that you wouldn't 21 want to have an order that's not effective in the court 22 of law, and so you've got to go back and do it right. 23 Now, I didn't address the mechanics of the 24 service issue. I assume everything you're representing 25 now is right because it seemed to be a problem to me, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1856 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 760 1 but I thought the first issue is the starter, or the 2 nonstarter, the issue of the failure to serve the proper 3 person or entity. 4 MR. PALMER: Yes. I understand what you're 5 saying. Just give me one minute -- 6 THE HEARING OFFICER: You may. I'm sorry. Go 7 ahead. 8 MR. PALMER: -- to sum up my comments. 9 So to put the fine point on this, without 10 proper service, no hearing upon the motion for discovery 11 shall be held, that's also in Evidence Code Section 12 1043(a) -- 13 THE HEARING OFFICER: And I don't intend to 14 have one. 15 MR. PALMER: And I appreciate your comment, 16 giving us a window into your mind about where you're 17 headed. In terms of when, as and if these motions are 18 properly served with the idea that, perhaps, 19 Ms. Castillo and I can get together, that ship has 20 sailed. I'm not trying to be a jerk, but we tried to do 21 that before as it relates to Sergeant Pfarr. It was 22 roundly rejected. 23 So if they want any part of a confidential 24 peace officer's personnel file, they're going to have to 25 go chapter and verse through the Pitchess motion file Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1857 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 761 1 process. Thank you. 2 THE HEARING OFFICER: Understood. 3 Ms. Castillo? 4 MS. DIETRICK: May I -- 5 HEARING OFFICER: Oh, go ahead. 6 MS. DIETRICK: Before we proceed, may I ask for 7 one additional piece of clarification regarding your 8 tentative preliminary ruling? 9 I thought I heard you say, as to Lieutenant 10 Smith, that you were inclined to deny because there was 11 not, at this point, a showing of good cause. 12 THE HEARING OFFICER: That's correct. 13 MS. DIETRICK: But then I later thought I heard 14 you say that you were inclined to order an in-camera 15 review of both Sergeant Pfarr and Lieutenant Smith's 16 files. 17 THE HEARING OFFICER: I said, with respect to 18 Smith, that I would imagine that there would be if -- 19 good cause was shown, that there would be -- what would 20 be in there would be relevant to the subject matter, but 21 I didn't feel the declaration or the affidavit supported 22 good cause at this time. 23 MS. DIETRICK: Okay. Thank you for that 24 clarification. 25 THE HEARING OFFICER: So I'm not -- I'm sorry Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1858 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 762 1 if I misworded it, but I'm not granting that motion now, 2 but I'm inclined to if good cause were shown in the 3 declaration. 4 Now, there's one thing I need to get clear and 5 this is where I may have missed something. You pointed 6 out -- and I'd love you to address this. You pointed 7 out that the Pitchess motion stands or falls on what's 8 in the declaration in terms of good cause. 9 In going back and reviewing Ms. Naleway's 10 declaration in support of the motion with respect to 11 Sergeant Pfarr's personnel file, which, to me, is 12 clearly discoverable in some fashion, it's pretty thin, 13 too, and I got to say that my preliminary ruling or my 14 thoughts, anyway, are based on what, I guess, I learned 15 at the hearing where the papers were served and there 16 was an attempt to stipulate to something. 17 It's not a mystery there was an investigation 18 and there was discipline and, I believe, Sergeant Pfarr 19 was cross-examined about that or examined on direct, and 20 so maybe I'm misremembering the record, I don't know, 21 but, in any event, that information is not in the 22 declaration, and so what you say is correct. 23 I'd have to revisit my thoughts about that, 24 too, but my feeling is, however we proceed after today, 25 it doesn't do anybody any good, not me, not the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1859 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 763 1 appellant, not the department, any good if the 2 substantive and procedural rules for a Pitchess haven't 3 been followed because it's all going to get thrown out 4 by some court. 5 So if that's a problem, which it now sounds 6 like it is with respect to Sergeant Pfarr's -- you're 7 going to address this, but I invite you to do so, if you 8 want to. 9 MR. PALMER: I will. 10 THE HEARING OFFICER: If that's a problem, you 11 know, I'd have to be inclined to say everything I've 12 said, except I don't know that there's good cause right 13 now, and it doesn't seem to be difficult to establish 14 it, but it would have to be put into a declaration. 15 MR. PALMER: Let me respond to what you said. 16 There's a case called Warrick. It's in my opposition, 17 Warrick versus Superior Court, which says that the 18 Pitchess motion rises or falls on the strength of the 19 declaration and other relevant documents. 20 And what usually happens in the criminal court 21 context, as most people are probably well aware, you 22 have the declaration and then you have a police report, 23 and City of Santa Cruz says very clearly that the court 24 has to review the declaration and then review the police 25 report and think of them in conjunction with one another Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1860 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 764 1 and the court should find a melding. Typically, it 2 comes up in the excessive force context. 3 There's a use of force in the police report, 4 which, obviously, articulates justifiable for us, then 5 what you do is you compare that to the declaration to 6 see if excessive force is supported by a specific 7 factual scenario or some specific factual account. 8 There should be a melding between the two. That's what 9 the Warrick court meant by other relevant documents. 10 And then you have People versus Gayland, which 11 isn't in my opposition -- 12 THE HEARING OFFICER: I'm sorry. I was just 13 taking a quick look at it. Warrick, can you spell that 14 for me? Because I don't remember reading that. 15 MR. PALMER: W-A-R- R-I-C-K. 16 THE HEARING OFFICER: Oh, Warrick. Oh, yeah. 17 I did see that. Go ahead. 18 MR. PALMER: That's in my opposition, but 19 People versus Gayland is not because the factual 20 situation didn't allow for me to put the case in there, 21 but People versus Gayland says the court can consider 22 other relevant documents like an interview transcript 23 taken in a jail, a jail interview after the arrest. 24 That was the particular situation there. It could be a 25 recording, could be a transcript, whatever it is, and Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1861 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 765 1 the judge could look at that, as well. 2 So it's the declaration in conjunction with 3 other relevant documents. Here, we don't have any of 4 that attached to the Pitchess motion looking forward in 5 terms of arguing the good cause later on. 6 THE HEARING OFFICER: I understand. 7 MR. PALMER: Once they're properly served, we 8 have the declaration and that's it. So, here, we only 9 have the declaration. 10 Your recollection of other stuff that happened 11 in the hearing, I would have to review the transcript, 12 but I think some, maybe all, most of that memory was in 13 an off-the-record discussion. 14 THE HEARING OFFICER: I apologize if that's the 15 case. 16 MR. PALMER: And if they have that stuff -- I 17 mean, they were here, too. They know what you're 18 referring to, I know what you're referring to. If they 19 have that stuff, they should plunk it where. 20 THE HEARING OFFICER: Well, it doesn't seem to 21 be an insoluble problem for Ms. Naleway, or whoever, to 22 file a declaration based on information and belief that 23 Sergeant Pfarr was subject to discipline, and I would 24 say the same thing about anything that is sought with 25 respect to whether a particular officer, supervisor was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1862 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 766 1 subject to an adjudication or finding of dishonesty, for 2 example, which I also did not see in here, not to put 3 too fine a point on it. Go ahead. I'm sorry to 4 interrupt. 5 MR. PALMER: I'm done. 6 THE HEARING OFFICER: All right. Well, I want 7 to make it clear that if that's the case, and I'd have 8 to go back and look at the transcript, too, that I'm not 9 relying on my memory here, and that's why, with respect 10 to Pitchess, one of the many reasons why this is not a 11 final order such as it is because we are not at the 12 proper procedural posture to do that, but I appreciate 13 being educated about it. I'm sorry. Ms. Castillo? 14 MS. CASTILLO: Mine is going to be -- 15 THE HEARING OFFICER: Ms. Dietrick, were you 16 done? 17 MS. CASTILLO: -- much shorter than 18 Mr. Palmer's. 19 As you noted, in our response to his 20 opposition -- and I'll work backwards. 21 As to any defects that may have been regarding 22 service thereupon the appropriate person or thereupon 23 with respect to timing, we asked that if they were not 24 willing to waive those defects, that they would be 25 cured. So that's our position on that. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1863 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 767 1 THE HEARING OFFICER: That was in your papers, 2 as I recall. 3 MS. CASTILLO: Yes. As to the argument by 4 Mr. Palmer regarding that it is inappropriate that these 5 be, I guess, during the hearing as opposed to pretrial 6 motions, as you know, these hearings are governed by the 7 personnel rules of the individual cities, the 8 memorandums of understanding, in conjunction with the 9 Evidence Code. 10 And so there is nothing here, unlike in front 11 of the State Personnel Board or other entities that 12 indicate specific time frames, for pretrial motions or 13 discovery motions or anything of that sort. So to make 14 the argument that this had to have been a pretrial 15 motion, I believe, is meritless. 16 There are oftentimes when appellants make 17 motions to suppress certain statements that come out in 18 a hearing based on evidence that is rendered that would 19 have never been discoverable but for the testimony in a 20 hearing, and those are oftentimes granted, those could 21 never have been a pretrial motion. And so these are 22 different animals than a criminal court case or civil 23 court case, as the hearing officer is aware. 24 And then with respect to the fact that these 25 are four separate motions, like Mr. Palmer said, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1864 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 768 1 oftentimes, the public defender will just list everyone 2 who is in the event history or who is present in the 3 police report. 4 In this instance, we did not do that. Our 5 position is that these individuals who were listed in 6 the four different motions are dissimilarly situated, 7 and for those reasons, the factual basis for the motions 8 were appropriately separated. I don't think that it's 9 overly burdensome. Mr. Palmer can cite cases off the 10 top of his head. So I don't know why it would be such a 11 hardship for him to respond. As you know, he only 12 responded once. So it wasn't that big of a deal, 13 clearly. 14 So that's all I would have to say. We will 15 renotice, we will re-serve, we will amend the 16 declarations, and we can just pick a new hearing date 17 while we're at it. 18 THE HEARING OFFICER: All right. I just want 19 to note one more thing for the record. I realize that 20 the parties have been unable to reach a happy agreement 21 as to how to proceed with respect to these issues, and 22 so your positions have hardened, but I'm not really 23 interested in hearing any more about how many pieces of 24 paper got filed and his point is well-taken about what 25 the best practices would be and it might make more sense Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1865 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 769 1 to do it in advance, but that doesn't always work. I 2 appreciate that, too. 3 And as I mentioned to Ms. Dietrick earlier, my 4 view is that, in terms of the timing, the ship's already 5 sailed, we've got plenty of other days, there's plenty 6 of other days upon which the hearing on these renotice 7 motions can be properly heard. So not worried about 8 that part of it. 9 All right. Can we -- anything else on this? 10 MR. PALMER: No. 11 THE HEARING OFFICER: All right. Can we go off 12 the record for a second? 13 (Recess.) 14 THE HEARING OFFICER: We're back on the record. 15 The department's calling their next witness, Captain 16 Staley. 17 Captain Staley, could I get you to raise your 18 right hand? Do you affirm the testimony you are about 19 to give will be the truth, the whole truth and nothing 20 but the truth? 21 THE WITNESS: Yes. 22 THE HEARING OFFICER: Put your hand down. Be 23 sure to speak up for the court reporter. 24 You already have the spelling? 25 THE COURT REPORTER: Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1866 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 770 1 THE HEARING OFFICER: Mr. Palmer, you may 2 proceed. 3 MR. PALMER: Thank you. 4 5 DIRECT EXAMINATION 6 BY MR. PALMER: 7 Q. Would you tell us by whom you are employed, 8 please? 9 A. City of San Luis Obispo. 10 Q. In what capacity? 11 A. As a police captain. 12 Q. How long have you been employed, in total time, 13 with the police department? 14 A. It will be 20 years next month. 15 Q. How long is the captain? 16 A. For six years. 17 Q. What is your current assignment? 18 A. I am currently the acting chief of police with 19 the department. 20 Q. How long have you been the acting chief? 21 A. Since May. 22 Q. Prior to 2015? 23 A. Yes. 24 Q. Prior to May of 2015, you were police captain? 25 A. Correct. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1867 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 771 1 Q. What were, basically, your duties? 2 A. I am the operations captain. So I oversee the 3 patrol of the division, which includes traffic division 4 and, basically, all the operations in that. 5 Q. Were you operations captain until taking over 6 the acting chief of police position? 7 A. Yes. 8 Q. And how long did you do that? 9 A. As operations captain? 10 Q. Yes, sir. 11 A. I believe I started in 2012 as an operations 12 captain. 13 Q. All right. So you were the operations captain 14 in around 2013? 15 A. Yes. 16 Q. 2012, 2013? 17 A. Yes. 18 Q. Were you the operations captain when the CAT 19 shift was conceptualized? 20 A. Yes. 21 Q. We've already had some evidence from this from 22 Lieutenant Smith. I don't want you to be too redundant 23 because you were here for Lieutenant Smith's testimony, 24 right? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1868 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 772 1 Q. But I want you to try to explain to us how the 2 CAT shift was conceptualized, take it through its 3 inception and its evolution to what it is now. 4 A. Initially, the Community Action Team was 5 developed to address community issues related to 6 transient behaviors, especially those that were repeated 7 transient-related behaviors. The thought from the chief 8 who created the idea was that, by a directed enforcement 9 with these individuals, with selected people that were 10 able to focus their efforts other than just patrol on 11 these problems, we would start to have an effect with 12 those. 13 Initially, we had a multitude of different 14 shifts that were either eight hours and we would use 15 someone's full shift if they were available from patrol 16 through staffing levels and we would just direct them. 17 Primarily, the downtown was our initial push and then, 18 as it moved on, we got to other portions of the city. 19 The CAT team, eventually, we decided we'd make 20 it a permanent assignment, and, I believe, in June of 21 2013, it was made a special assignment through the 22 department, and until that creation of that team, we 23 continued with the shifts until -- I believe it was 24 April of '13 where we directed to try to reduce our 25 overtime to the most optimum time to have them in that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1869 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 773 1 downtown corridor, which was from 11: 00 to 4:00. So we 2 created a 5-hour shift that went from April of '13 well 3 into January of '14 we had those shifts. 4 Q. And then in January of 2014, what did it 5 become? 6 A. It became a Community Action Team because the 7 permanent assignment back in June, but we continued with 8 the overtime shifts to supplement the days that they 9 didn't work until January of '14. 10 Q. Okay. So between April 2013 and, roughly, 11 January 2014, the shift for the CAT shift was 11: 00 to 12 4:00? 13 A. Correct. 14 Q. And that was based partly on overtime budget 15 consideration? 16 A. Yes. 17 Q. As well as the needs of the downtown area? 18 A. Correct. 19 Q. Did some information come to the police 20 department's attention concerning Mr. Waddell may have 21 committed some misconduct in relation to an accident 22 involving a Bentley? 23 A. Yes. 24 Q. And did that information come to the 25 department's attention in a written document? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1870 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 774 1 A. Yes, it did. 2 Q. Do you see the black notebook there in front of 3 you? 4 A. Yes. 5 Q. That's the appellant's exhibit book. If you 6 could turn to Appellant's Exhibit A, please. 7 THE HEARING OFFICER: Sorry. I'm looking at 8 the wrong thing. 9 MR. PALMER: It's okay. I'll wait. 10 THE HEARING OFFICER: Okay. 11 BY MR. PALMER: 12 Q. Is Appellant's Exhibit A the written 13 documentation to which you previously referred? 14 A. Yes, it is. 15 Q. And as a result of Appellant's Exhibit A, was 16 an administrative investigation instituted into this 17 event? 18 A. Yes. 19 Q. And who was the investigator of that event? 20 A. It was Lieutenant Bill Proll. 21 Q. Okay. Did some information come to the 22 department's attention about the fact that Mr. Waddell 23 was thought to have lied to a supervisor? 24 A. Yes. 25 Q. And did that also come to the department in a Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1871 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 775 1 written document? 2 A. Yes, it did. 3 Q. Do you see the white notebook in front of you, 4 sir? That's the department's exhibit book. Would you 5 turn to Exhibit 9? 6 Is Exhibit 9 the written document to which you 7 previously referred? 8 A. Yes, it is. 9 Q. And that written documentation came from who? 10 A. It came from Sergeant Pfarr. 11 Q. All right. I'm going to change gears a little 12 bit and I want you to explain to the hearing officer, if 13 you can, whether honesty in police work and law 14 enforcement function is important. 15 A. Yes. It's absolutely the cornerstone of our 16 business that we have to have honesty and integrity of 17 our officers. 18 Q. Why? 19 A. It's a vital piece of what we do. We have to 20 testify in court and we have to be believed by our own 21 people that we're telling the truth. It's a crucial 22 piece of -- bringing any evidence into court is a 23 crucial piece of police reports. It's just a 24 fundamental part of the job. 25 Q. Do you have a general familiarity with Pitchess Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1872 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 776 1 motions? 2 A. I do. 3 Q. Have you handled Pitchess motions in the past? 4 A. I have. 5 Q. Are you familiar enough with Pitchess motions 6 to tell us, if Mr. Waddell is reinstated, a public 7 defender can do a Pitchess motion that gets access to 8 some of the information we've been discussing? 9 MS. CASTILLO: Objection. Calls for a legal 10 conclusion. 11 THE HEARING OFFICER: Well, I can take notice 12 of that. I'm aware of how this works. This isn't my 13 first rodeo, either. I don't have any problem with the 14 witness testifying to that, but I don't know if you need 15 him to say it. 16 MR. PALMER: I appreciate it. I'll withdraw 17 the question. 18 THE HEARING OFFICER: If you want him to 19 testify about the Pitchess motions he's had to respond 20 to or how many, I guess that would be okay. 21 MR. PALMER: That's okay. I'll move on. Thank 22 you. 23 THE HEARING OFFICER: All right. 24 BY MR. PALMER: 25 Q. In reading over Exhibit 9, sir, I assume you Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1873 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 777 1 read this sometime on or about or shortly after October 2 19th, 2013, when it was dated? 3 A. Yes. 4 Q. In reading over Exhibit 9, sir, did you pick up 5 the fact that, at least, Sergeant Pfarr believed that 6 Mr. Waddell was dishonest with him? 7 A. Yes. 8 MS. CASTILLO: Objection. Calls -- assumes 9 facts not in evidence. 10 THE HEARING OFFICER: Overruled. You can 11 answer, if you know what the question is. 12 THE WITNESS: Yes. 13 BY MR. PALMER: 14 Q. Okay. In light of the fact that Sergeant Pfarr 15 believed Mr. Waddell was dishonest with him, was 16 Mr. Waddell immediately placed on administrative leave 17 with pay when Exhibit 9 was received by the department? 18 A. No. 19 Q. Why not? 20 A. We wanted to make sure that Officer Waddell had 21 an opportunity to, maybe, clarify something that was a 22 miscommunication, there wasn't a misconception with 23 Sergeant Pfarr, and placing someone on administrative 24 leave we take very seriously. So we wanted to make sure 25 we had that opportunity to let him explain before Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1874 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 778 1 putting him on leave. 2 Q. So was there an administrative investigation 3 done behind this complaint by Sergeant Pfarr? 4 A. Yes, there was. 5 Q. And who was the administrative investigator? 6 A. It was Lieutenant Bledsoe. 7 Q. Did that investigation -- I assume, at some 8 point, you reviewed that investigation? 9 A. Yes, I did. 10 Q. Did Lieutenant Bledsoe's investigation include 11 an interview of Sergeant Pfarr? 12 A. Yes. 13 Q. Of Lieutenant Smith? 14 A. Yes. 15 Q. Of other individuals? 16 A. I believe so. 17 Q. And, eventually, did it include an interview of 18 Mr. Waddell? 19 A. Yes. 20 Q. Do you remember when that interview occurred? 21 A. With Lieutenant Bledsoe? 22 Q. Yes. 23 A. December 12th. 24 Q. Of? 25 A. 2013. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1875 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 779 1 Q. Okay. And did it also include a reinterview, 2 subsequent interview, with Lieutenant Smith? 3 A. Yes, it did. 4 Q. And when did that occur? 5 A. The same day. 6 Q. The same day. 7 In your recollection, what was the subject 8 matter of the reinterview with Lieutenant Smith? 9 A. To clarify whether he had given Officer Waddell 10 permission to come in late for that shift and to clarify 11 whether he had had blanket permission that he had given 12 to other people to be able to come in late for those 13 types of shifts. 14 Q. Was it your recollection that the reinterview 15 of Lieutenant Smith ended in the late afternoon hours of 16 December 12? 17 A. Yes. 18 Q. Did you have a meeting with Lieutenant Bledsoe 19 shortly after the reinterview with Lieutenant Smith 20 concluded? 21 A. Yes. 22 Q. Did that meeting just include you and 23 Lieutenant Bledsoe? 24 A. No, it did not. 25 Q. Who else did it include? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1876 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 780 1 A. Captain Storton was also present, and I believe 2 Chief Gesell was also present for part of that 3 conversation. 4 Q. What was the subject matter of that discussion? 5 A. The discussion about the interview he had 6 conducted with Officer Waddell. 7 Q. You mean Lieutenant Bledsoe? 8 A. Lieutenant Bledsoe was discussing with us his 9 interview with Officer Waddell. 10 Q. What did he say in that regard? 11 A. Lieutenant Bledsoe was convinced that, during 12 the interview, that Officer Waddell was lying and he had 13 lied to Sergeant Pfarr and he was not able to provide a 14 good explanation for any of the events that had occurred 15 on October 19th. 16 Q. Was it at that time that the administrative 17 leave concept was discussed? 18 A. Yes. 19 Q. Was it discussed before that day on December 20 12, late in the afternoon? 21 A. No. 22 Q. What conclusion was made, if any, as it relates 23 to administrative leave with pay? 24 A. It was decided that he should be immediately 25 placed on administrative leave. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1877 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 781 1 Q. Now, at that point, did the four of you, in 2 that discussion, have more information than that which 3 was just shared by Sergeant Pfarr in October? 4 A. We also had the information from the interviews 5 with Sergeant Pfarr and Lieutenant Smith, as well. 6 Q. So did you have a more clear picture of whether 7 or not Mr. Waddell had, in fact, lied? 8 A. Yes. 9 MS. CASTILLO: Objection. Vague as to "lied." 10 THE HEARING OFFICER: Do you understand the 11 question? 12 THE WITNESS: I do. 13 THE HEARING OFFICER: Overruled. 14 BY MR. PALMER: 15 Q. Was Mr. Waddell successful, in any way, of 16 recasting the situation just in terms of a general 17 misunderstanding between him and Sergeant Pfarr? 18 A. No. 19 Q. Was Mr. Waddell placed on administrative leave 20 that day? 21 A. Yes, he was. 22 Q. Do you recall at what time? 23 A. I believe it was about 7:30 that evening. 24 Q. Okay. Now, you, right before taking the stand, 25 were seated in another chair in the room, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1878 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 782 1 A. Yes. 2 Q. And in front of you -- in front of that chair 3 are some documents? 4 A. Yes. 5 Q. Do you have a black zipper folder, which, I 6 assume, you carry around all day? 7 A. Pretty much. 8 Q. And there's a set of documents about an inch 9 thick underneath the open black zippered folder, which 10 has a black cardboard file cover. Do you see that? 11 A. I do. 12 Q. Have you been carrying that object around with 13 you, pretty much, during the entire time this hearing 14 has commenced? 15 A. Yes. 16 Q. Did you have it before the hearing commenced? 17 A. Yes. 18 Q. What is that black cardboard file? 19 A. That's a complete copy of both of the 20 investigations completed by Lieutenant Bledsoe and 21 Lieutenant Proll, as well as all the other supporting 22 documentation for both of the administrative inquiries. 23 Q. Okay. How did you come to have this created 24 for you? 25 A. I asked the chief's assistant to produce that Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1879 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 783 1 for me, based on both of those files, so I had all of 2 that information together in one place. 3 Q. And who is the chief assistant that you asked 4 to do this? 5 A. Sue Sanders. 6 Q. Sue Sanders? 7 A. Correct. 8 Q. How long has she been the chief's assistant? 9 A. I believe she started in 2013. 10 Q. Would she have been the same chief's assistant 11 back at the time the notice of intent to terminate 12 Officer Waddell was prepared? 13 A. Yes. 14 Q. And did you ask her to create a file for you 15 just so you could have it for reference? 16 A. Yes. 17 Q. And did she create that black folder for you? 18 A. Yes, she did. 19 Q. From what source material? 20 A. From both of the administrative inquiry files 21 that are kept in her office. 22 Q. Okay. Did you and I meet some months ago prior 23 to the first day of this hearing? 24 A. Yes. 25 Q. And did you have that black folder with you at Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1880 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 784 1 the time you and I met? 2 A. Yes, I did. 3 Q. And did we start to discuss some photographs? 4 A. Yes, we did. 5 Q. Turn to Exhibit 11. We've referred to this 6 exhibit several times during the hearing as an exhibit 7 which has, I think, seven photographs? 8 A. Yes. 9 THE HEARING OFFICER: I've got mine labeled 10 Pages A through F. 11 BY MR. PALMER: 12 Q. Thank you. Are those photographs in your -- 13 I'm going to refer to that just as a dummy file. You 14 understand what I mean by that? 15 A. Yes, I do. 16 Q. Not referring you're a dummy. I just call it a 17 dummy file. 18 Are those photographs in Exhibit 11 contained 19 in your dummy file? 20 A. Yes, they are. 21 Q. And did you and I discuss those photographs 22 when you and I met prior to the hearing commencing? 23 A. Yes, we did. 24 Q. Okay. Is there also some documents in your 25 dummy file related to placing Mr. Waddell on Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1881 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 785 1 administrative leave with pay? 2 A. Yes, there is. 3 Q. Can you get it, please? Can you turn to the 4 part in your dummy file where the administrative leave 5 notice for Mr. Waddell is? 6 THE HEARING OFFICER: Are you having him 7 refresh his recollection or do I need to follow along 8 with this? I don't know how to make this part of the 9 record. I guess, that's what I'm asking. 10 MR. PALMER: I wasn't going to mark it as an 11 exhibit, but maybe I should. Let me do it this way and 12 see how it goes. 13 THE HEARING OFFICER: Okay. 14 BY MR. PALMER: 15 Q. Do you have a firm recollection -- without 16 looking at those documents, at this point, do you have a 17 firm recollection, sitting there right now, the actual 18 time that Mr. Waddell was placed on administrative leave 19 with pay on December 12th, 2013? 20 A. I do not. 21 Q. Okay. Do you know if there's any documents in 22 existence that would refresh your memory as to actual 23 timings placed on them? 24 A. The documents that are placed in my 25 administrative leave would have been signed and dated Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1882 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 786 1 with the time, as well. 2 Q. Have you opened your notebook to the 3 administrative leave notice? 4 A. Yes. 5 Q. And does it state a time? 6 A. It does. 7 Q. What time? 8 A. 19: 35 hours. 9 Q. And does -- the administrative leave notice, is 10 that signed by several people? 11 A. The administrative leave notice is signed by 12 two people, yes. 13 Q. Do you recognize one or both of the signatures? 14 A. I recognize one as, I believe, Captain 15 Storton's signature. I'm assuming the other one is 16 Officer Waddell's. 17 Q. Were you there when this occurred? 18 A. No, I was not there. 19 Q. But you recognize Captain Storton's signature? 20 A. Yes, I do. 21 Q. Is it also dated and timed? 22 A. It is. 23 Q. What time? 24 A. It's dated 12/ 12/ 13 at 19: 35 hours. 25 Q. From this point, the point at which he was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1883 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 787 1 placed on administrative leave with pay, did both the 2 administrative investigations continue to proceed? 3 A. Yes, they did. 4 Q. And, at some point, did they conclude? 5 A. Yes, they did. 6 Q. And did each administrative investigator 7 prepare a written report about their investigation? 8 A. Yes. 9 Q. And, at some point, did you review them? 10 A. I did. 11 Q. Can you turn to Exhibit 7, please? Can you 12 tell us what Exhibit 7 is? 13 A. This is the investigative report to the chief 14 via me from Lieutenant Bledsoe. 15 Q. And does it -- is this the written report 16 prepared by Lieutenant Bledsoe about his investigation 17 of the CAT shift incident? 18 A. Yes. 19 Q. Turn to Exhibit 8, please. What is Exhibit 8? 20 A. This is the report from Lieutenant 21 Proll regarding -- I'm sorry -- about his investigation 22 into the other incident. 23 Q. The Bentley incident? 24 A. Yes, sir. 25 Q. Did you review both of these written documents Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1884 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 788 1 in the course of time? 2 A. Yes. 3 Q. And what was your role in terms of that review? 4 Did you have a particular role, as a captain of police, 5 to play here? 6 A. Yes. 7 Q. What? 8 A. It was to give my administrative recommendation 9 to the chief of police. 10 Q. Did each investigator articulate findings of 11 misconduct? 12 A. Yes. 13 Q. As it relates to Lieutenant Proll's 14 investigation of the Bentley incident, what findings did 15 Lieutenant Proll make? 16 MS. CASTILLO: Objection. The document speaks 17 for itself. 18 THE HEARING OFFICER: I'm going to allow him 19 to, at least, guide him over there. Go ahead. 20 THE WITNESS: It's a finding that the removal 21 of the vehicle parts had actually taken place and a 22 violation of the Vehicle Code occurred. 23 BY MR. PALMER: 24 Q. And as it relates to Lieutenant Bledsoe, did he 25 make findings of misconduct in his report? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1885 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 789 1 A. Yes, he did. 2 Q. And what were they? 3 A. He believed that Officer Waddell had lied 4 during the investigation. 5 Q. In what regard? 6 A. He believed that Officer Waddell initially lied 7 when he sent the text message with the intent to deceive 8 Sergeant Pfarr that day that he was late for CAT shift 9 on October 19th, he, again, lied when he came in to work 10 that day and had the meeting with Sergeant Pfarr in his 11 office and stated the same thing, that he had permission 12 from Lieutenant Smith to be late, when he, in fact, did 13 not. 14 So he said the same lie in person and then he 15 did not have any reasonable explanation during the 16 investigation and he believed that he lied during the 17 administrative inquiry, as well. 18 Q. As it relates to both the findings of 19 misconduct related to the Bentley event and the CAT 20 shift event, did you concur with that? 21 A. Yes, I did. 22 Q. And did you provide input to the chief about 23 what to do going forward? 24 A. Yes, I did. 25 Q. Did you do that in writing? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1886 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 790 1 A. Yes. 2 Q. Turn to Exhibit 6, please. Are you at 6? 3 A. Yes, I am. 4 Q. I don't think you are. 5 A. Oh, I'm sorry. That's 5. 6 Q. Exhibit 6, what is it? 7 A. It's my executive recommendation to the chief. 8 Q. What's the purpose of this document? 9 A. Purpose of this document is for me to give my 10 conclusions of both of those investigations and to make 11 a recommendation as far as what I feel is the proper 12 level of discipline for accusation. 13 Q. Okay. And not to belabor the point, but did 14 you give your explanation of why you concurred with the 15 findings of each investigator? 16 A. I did. 17 Q. And did you ultimately make a disciplinary 18 recommendation to the chief of police? 19 A. Yes. 20 Q. And what was that? 21 A. Termination for cause. 22 Q. Did -- now, the reason you're the acting chief 23 is that the chief of police is no longer employed, 24 right? 25 A. Right. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1887 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 791 1 Q. At the time, though, did the chief of police 2 concur with your recommendation? 3 A. Yes. 4 MS. CASTILLO: Objection. Calls for 5 speculation and hearsay. 6 THE HEARING OFFICER: If you know. You can 7 answer if you know. 8 THE WITNESS: Yes, he did. 9 BY MR. PALMER: 10 Q. At some point, was there a move to notify 11 Mr. Waddell of the intent to discipline him? 12 A. Yes. 13 Q. Did you have anything to do with that? 14 A. Yes, I did. 15 Q. What did you have to do with that? 16 A. I crafted the notice of intent and I believe I 17 was the one who served, as well. 18 Q. Can you go to Exhibit 5? What is Exhibit 5? 19 A. That is a notice of intent. 20 Q. Did you write this? 21 A. Yes, I did. 22 Q. It says Steven Gesell, chief of police, on Page 23 2? 24 A. Correct. 25 Q. But you wrote it? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1888 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 792 1 A. Yes. 2 Q. You ghost wrote it for him? 3 A. Yes. 4 Q. Did you have anything to do with preparing this 5 notice and this supporting documentation to be provided 6 to Mr. Waddell? 7 A. Yes. 8 Q. What did you have to do with that? 9 A. I was the one who authored both. 10 Q. Okay. How did you go about getting the 11 supporting material to go along with the notes? 12 A. I'm sorry. I'm not exactly sure what you're 13 asking. 14 Q. You prepared the notice of intent and it was 15 adopted by the chief police? 16 A. Correct. 17 Q. Did you have anything to do with serving this 18 document on Mr. Waddell? 19 A. Yes. 20 Q. Did you have anything to do with collecting 21 other material, other than this notice, to go along with 22 the service documentation to give to Mr. Waddell? 23 A. Yes, I did. 24 Q. What did you do? 25 A. I asked our chief's assistant to please provide Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1889 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 793 1 copies similar to this of everything in both of those. 2 Q. When you just said, "similar to this," you 3 pointed to what object? 4 A. My file of both of the investigations. 5 Q. Your dummy file? 6 A. Correct. 7 Q. Please continue. 8 A. So I asked her to make a complete copy of both 9 of the administrative inquiries so we could produce 10 those with the notice of intent. 11 Q. Okay. Did you ask Sue Sanders to do that in 12 much the same way you asked her to create the dummy 13 file? 14 A. Yes. 15 Q. And photographs depicted in Exhibit 11 were in 16 your dummy file? 17 A. Yes. 18 Q. Okay. So did Sue deliver to you some 19 documentation? 20 A. Yes, she did. 21 Q. And did you connect it up with the notice of 22 intent? 23 A. Yes. 24 Q. Were you present when that was provided to 25 Mr. Waddell? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1890 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 794 1 A. Yes, I was. 2 Q. Okay. Does the notice of intent actually set a 3 Skelly date, or what does it do? 4 A. I believe it does, if I can refer to it. 5 Q. Go ahead. 6 A. I believe it sets a date. They have to respond 7 if they want to have a Skelly hearing. 8 Q. Do you know if a Skelly meeting actually did 9 take place? 10 A. Yes. 11 Q. How do you know that? 12 A. I was present the day that it took place. 13 Q. Were you present for the actual meeting? 14 A. No. 15 Q. Okay. Did you discuss the Skelly contents with 16 the chief of police afterwards? 17 A. Yes. 18 Q. And was a final decision made by the chief of 19 police ultimately following the Skelly? 20 A. Yes. 21 Q. What was that? 22 A. The chief of police believed the termination 23 for cause was an appropriate action. 24 Q. And was a notice prepared to that effect for 25 Mr. Waddell? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1891 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 795 1 A. Yes. 2 Q. And is that Exhibit 4? 3 A. Yes. 4 Q. And, ultimately, did you concur with that 5 decision? 6 A. Yes, I did. 7 Q. Could you tell us why? 8 MS. CASTILLO: Objection. Relevance. He's not 9 a Skelly officer. 10 THE HEARING OFFICER: The question's whether he 11 concurred. I'm going to allow it. You can answer. 12 THE WITNESS: I concurred based on what I 13 stated earlier, that all the accusations that I believed 14 Lieutenant Bledsoe and Lieutenant Proll found in their 15 administrative inquiries were, in fact, true and that 16 termination for cause was the appropriate action, 17 especially for repeated lies. 18 MR. PALMER: Thank you. Nothing further. 19 THE HEARING OFFICER: Cross-examination? You 20 need a minute or you want to dig in? 21 MS. CASTILLO: No. I can start. 22 THE HEARING OFFICER: Go ahead. 23 MS. CASTILLO: I'll start backwards. 24 THE HEARING OFFICER: Are you okay? 25 THE COURT REPORTER: Yeah. I'm fine. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1892 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 796 1 THE HEARING OFFICER: All right. 2 3 CROSS-EXAMINATION 4 BY MS. CASTILLO: 5 Q. So you testified that, basically, your 6 recommendation never changed, right? 7 A. Correct. 8 Q. So you -- but you were not present at the 9 Skelly to hear any of the presentation by Officer 10 Waddell or his attorney at the time, correct? 11 A. That's correct. 12 Q. And do you know how long thereafter that 13 termination decision was made by the chief? 14 A. I don't recall. 15 Q. Well, you had this discussion with him, right? 16 When was that? 17 A. It was the same day. 18 Q. Okay. So he made the termination decision the 19 same day of the Skelly hearing? 20 A. I don't know if he made the exact decision on 21 that day or not. 22 Q. Well, when did you have the discussion with 23 him? 24 A. The discussion wasn't his determination. It 25 was, simply, what his thoughts were at that point. He Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1893 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 797 1 didn't make the final determination until -- you'll have 2 to ask Chief Gesell that. I don't know. 3 Q. So what was your conversation with him that day 4 after the Skelly hearing? 5 A. Just that there wasn't much substance to the 6 Skelly hearing. 7 Q. And is that all he told you? 8 A. Pretty much. 9 Q. What else did he tell you? 10 A. He said that the attorney that was working with 11 him at the time had tried to come to some type of 12 reasonable conclusion and that one seemed to have been 13 reached at that point. 14 Q. A reasonable conclusion had been reached? 15 A. He was very vague about it. He didn't give me 16 the details of what was said inside the Skelly hearing. 17 Q. But he told you that he believed termination 18 was still appropriate at that time? 19 A. No, that's not what he told me. 20 Q. Well, what did he tell you? 21 A. He told me that he thought what the 22 conversation with their attorney that was present at the 23 time, that they might be able to come to some type of 24 conclusion. 25 Q. And then did you have another discussion with Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1894 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 798 1 him at some other point? 2 A. Yes. 3 Q. And when was that? 4 A. I don't recall. 5 Q. Well, was it close in time? 6 A. I think it was within several weeks of that, 7 yes. 8 Q. Okay. And did you serve Officer Waddell with 9 the final termination notice? 10 A. Yes, I did. 11 Q. And so when was your discussion with the chief 12 about the termination decision? 13 A. I don't recall the exact date. 14 Q. Did you type that one up, as well? 15 A. I'm sorry. Type up what? 16 Q. That notice. 17 A. Yes, I did. 18 Q. Okay. So you had to have had a discussion with 19 him prior to typing that, right? 20 A. Yes. 21 Q. Okay. And did you type it contemporaneously 22 with the discussion? 23 A. I would imagine it was within a day or two, 24 yes. 25 Q. Okay. The chief does have his own secretary, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1895 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 799 1 though, right? You're not his secretary? 2 A. No. 3 Q. Okay. Did he dictate it to you, or how was it 4 that you are his typist and you wrote this up for him? 5 A. Well, I wouldn't call myself a typist. We tend 6 to produce documents for the chief with his style. At 7 that point, he said this is my decision. He asked me to 8 produce the document, which I did. 9 Q. Now, at the time, you're not the administrative 10 captain, though, right? 11 A. That's correct. 12 Q. You're the operations captain, right? 13 A. Yes. 14 Q. There was a captain that was in charge of 15 administrative investigations, right, at this time? 16 A. The chief, at some point during his time with 17 the department, changed the way we did investigations. 18 At one point, he used to be the administrative captain 19 who oversaw those. At one point, he thought we should 20 oversee our own divisions. So anything that came 21 through the operations division as mine, I would 22 oversee, and anything that came through the 23 administrative side, Captain Storton would oversee. 24 Q. And wasn't it at that exact point during the 25 Waddell investigations? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1896 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 800 1 A. I'm sorry. What was the question? 2 Q. Wasn't that exact transition during the Waddell 3 investigations? 4 A. Yes. 5 Q. Now, you never had any conversation with 6 Officer Waddell, yourself, regarding any of these 7 allegations, correct? 8 A. Correct. 9 Q. You only relied on the conclusions of the two 10 lieutenants who conducted the investigations, correct? 11 A. Correct. 12 Q. Did you listen to all of the audios? 13 A. Not all of them, no. 14 Q. Which ones did you listen to? 15 A. I listened to portions of the one that 16 Lieutenant Bledsoe's interview with Officer Waddell. 17 Q. Portions? 18 A. Correct. 19 Q. What portions did you listen to? 20 A. Certain areas where it seemed like Lieutenant 21 Bledsoe had some serious concerns about Officer 22 Waddell's responses. 23 Q. And how were you directed to those specific 24 portions on the audio? 25 A. Through Lieutenant Bledsoe's report. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1897 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 801 1 Q. Okay. Did he give you -- were they -- those 2 specific portions of the audio time stamped so you knew 3 to fast-forward to those specific -- 4 A. No. I had to move through the recordings. 5 Q. And so how did you know that those were the -- 6 the portions that were the ones that were being 7 highlighted by the lieutenant? 8 A. Because the substantive portion of those was 9 clear in the report. 10 Q. Okay. But how long was that interview? 11 A. I don't recall. 12 Q. And this is the investigation regarding what? 13 Which investigation? 14 A. You're the one asking the question. Which one 15 are you asking about? 16 Q. The one audio that you listened to. 17 A. Lieutenant Bledsoe's investigation. 18 Q. Okay. That's the only one you listened to? 19 A. Yes. 20 Q. Why didn't you listen to any of the 21 investigations from Lieutenant Proll? 22 A. I didn't believe it was necessary. 23 Q. And why? 24 A. I just didn't believe it was. 25 Q. You don't have a reason, you just didn't Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1898 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 802 1 believe it? 2 A. I don't have a reason. 3 Q. Okay. Wait. You made an executive 4 recommendation for termination? 5 A. Correct. 6 Q. Okay. And so you only listened to one audio 7 from one investigation and only portions of it? 8 A. Correct. 9 Q. And there's no transcripts of any of these 10 audios, right? 11 A. There was Lieutenant Bledsoe's notes from his 12 interview during that time, yes. 13 Q. Okay. I said transcripts, not his notes. 14 A. No. 15 Q. There's no transcripts. You know what a 16 transcript is? 17 A. I know what a transcript is. Thank you. 18 Q. No. I want it to be clear on the record. 19 You were never provided a transcript prior to 20 making your executive recommendation in this case, 21 right? 22 A. Correct. 23 Q. Okay. How long was your review period for this 24 executive recommendation? 25 A. I don't know. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1899 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 803 1 Q. Well, I mean, how much thought did you put into 2 terminating a 12-year police officer? 3 A. I put a great deal of thought into it. 4 Q. Okay. So are we talking about the amount of 5 time you took to listen to portions of the audio, or, I 6 mean, did you review this investigation multiple times? 7 I mean, what was the process that you used to 8 make this executive recommendation? 9 A. I'd reviewed both of the reports from 10 Lieutenant Proll and Bledsoe numerous times. I wanted 11 to make sure I was completely clear on what they 12 believed occurred, and based on that, I made my 13 decision. 14 Q. Okay. Other than the reports, what other 15 materials did you have available to you for the 16 recommendation other than the audio that you did not 17 review? 18 A. What other material did I have available to me? 19 Q. Right. 20 A. I had the notes from the investigation, I had 21 the investigation, itself, and that was -- and the 22 recordings from the investigation. 23 Q. Okay. And so you reviewed the reports, not the 24 audios. Which notes did you review? 25 A. I reviewed, especially, Lieutenant Bledsoe's Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1900 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 804 1 notes, since he took a lot of notes that were included 2 with the report. 3 Q. What about Lieutenant Proll's notes? 4 A. I may have looked through his notes, as well, 5 but I don't recall, specifically, looking through his 6 notes. 7 Q. The appellant has not been provided Lieutenant 8 Proll's notes, but you were? 9 A. If it's in my file, I was, but if they're not 10 there, I didn't have any notes at the time. 11 MS. CASTILLO: Can we have the dummy file 12 marked? We've raised the Skelly issue. 13 THE HEARING OFFICER: You've raised the Skelly 14 issue. What do you mean? 15 MS. CASTILLO: In our opening for Skelly 16 violations. I don't know what notes that he's referring 17 to. Can I, at least, be provided with a copy of the 18 notes at this point? 19 THE HEARING OFFICER: Let's go off the record 20 for a second. 21 (Discussion off the record.) 22 THE HEARING OFFICER: We're going to go back on 23 the record. We were just discussing, with Captain 24 Staley, what's referred to as a dummy file, and the 25 department has agreed to produce it. So a copy of it is Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1901 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 805 1 being made by Ms. Dietrick. In the meantime, we'll 2 proceed with some general questions for Captain Staley. 3 Go ahead. 4 BY MS. CASTILLO: 5 Q. So we can clarify. You were provided what 6 materials to make your executive recommendation? 7 A. I was provided both of the full administrative 8 inquiries from Lieutenant Bledsoe and Lieutenant Proll. 9 Q. Okay. And I've never seen a full table of 10 contents listing every single document that was part of 11 each investigation. So can you tell us what would have 12 been in each full investigative inquiry provided by each 13 lieutenant? 14 A. I can try. 15 Q. Okay. 16 A. It would be the notice of intent, notice of 17 discipline, notice of placing him on administrative 18 leave, a memorandum associated with it, the reports, any 19 notes from the files, the audio recordings and, I 20 believe, that's it. 21 Q. Okay. And when you received the documents 22 together with the notice of intent prior to the Skelly 23 hearing that you served on Officer Waddell, did you 24 check to make sure that everything that you had reviewed 25 in order to make your executive recommendation was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1902 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 806 1 contained in the file that was given to Officer Waddell? 2 A. No, I did not. 3 Q. And you were handed this information by -- or 4 this preparation by who? 5 A. I'm not clear on what you're asking me. 6 Q. Well, the packet that went to Officer Waddell 7 with the notice of intent that you served that you 8 didn't go through to verify that everything that you had 9 looked at that went towards this recommendation was 10 given to Officer Waddell, who actually prepared all of 11 that? 12 A. It was the chief's assistant. 13 Q. And is that this Sue Sanders that we've been 14 hearing about? 15 A. Yes. 16 Q. Okay. And when you asked Sue Sanders to 17 prepare you the dummy file, did you tell her that you 18 wanted what is commonly referred to as the Skelly packet 19 or did you tell -- I mean, what did you tell her that 20 you wanted? What is that packet that is being 21 photographed? 22 A. I told her I wanted everything that was 23 included in both of those administrative inquiries, 24 including the audio recordings and everything else that 25 was in there. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1903 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 807 1 Q. Okay. So what is being photocopied right now 2 should have been everything that Officer Waddell was 3 served by you prior to Skelly? 4 A. Yes. 5 Q. Okay. So do you know why there wasn't a table 6 of contents or a list of all the documents or -- 7 A. One was never produced. 8 Q. Okay. So you testified that you reviewed the 9 reports, you reviewed Lieutenant Bledsoe's notes, right? 10 A. Yes. 11 Q. And then what else did you review? 12 A. I reviewed whatever was in the case files. 13 Q. And you said you reviewed those photographs, 14 right? 15 A. Correct. 16 Q. Let's look at the photographs in Exhibit 11. 17 Do you know who took Photograph A? 18 A. I do not. 19 Q. Do you know where Photograph A came from? 20 A. I do not. 21 Q. Do you know what date Photograph A was taken? 22 A. I believe it was taken on the day, obviously, 23 the Bentley crash occurred. 24 Q. Is this the inside of a Bentley? 25 A. I believe so. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1904 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 808 1 Q. And what makes you say that? 2 A. Because it was associated with the case file 3 from that accident. 4 Q. Do you know why this photograph is in black and 5 white and the rest of them are in color? 6 A. I do not. 7 Q. If I told you Photograph A was the only 8 photograph that was provided to the appellant, do you 9 have any information as to why that would have been? 10 A. No, I don't. 11 Q. Okay. Where are photographs, such as B through 12 G, maintained, based on your training and experience? 13 A. They would be maintained on a DIMS system, 14 which is where we store photographic evidence. 15 Q. And would these Photographs B through G have 16 been maintained as part of the administrative 17 investigation or as part of the criminal investigation? 18 A. It could be both. 19 Q. Okay. And there was a criminal investigation 20 connected to this Bentley crash, correct? 21 A. Yes. 22 Q. Because there was a DUI investigation, right? 23 A. I believe so, yes. 24 Q. And there was also a potential for, maybe, a 25 manslaughter, right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1905 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 809 1 A. Yes. 2 Q. Do you know, when you reviewed the 3 investigation connected to the Bentley case, if 4 Photographs B through G were part of that case file? 5 A. I believe they were, yes. 6 Q. And why do you believe that? 7 A. Because I remember seeing these photographs. 8 Q. And when do you remember seeing them? Do you 9 remember seeing them attached to the investigation? Do 10 you remember seeing them printed? Do you remember 11 seeing them on a computer? What format do you remember 12 seeing them? 13 A. I believe they were printed as they are in the 14 book here, but I can't say, specifically. 15 Q. Do you know why they would have been printed in 16 color copies, full page, but Exhibit A would have been a 17 half page, black and white? 18 A. I don't. 19 Q. Okay. Now, you, obviously, read the reports 20 regarding Officer Benson's testimony, right? 21 A. Yes. 22 Q. And you've heard him testify in this hearing, 23 right? 24 A. Yes. 25 Q. And you heard him testify about damage that he Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1906 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 810 1 witnessed Officer Waddell try to inflict on the steering 2 wheel column and on the trunk emblem of the Bentley, 3 correct? 4 A. I believe so, yes. 5 Q. Did you see anywhere in any of the reports 6 anything relating to any type of damage in those areas 7 that was -- that were referred to by Officer Benson? 8 A. In which reports are you referring to? 9 Q. Any reports that you reviewed, whatsoever. 10 A. Not that I can recall, no. 11 Q. Do you recall reviewing anything or any 12 testimony from anyone else, either in the course of the 13 IA investigation or in the form of a report, regarding 14 any witnesses to the actions of Officer Waddell 15 consistent with those that were testified to of Officer 16 Benson in terms of conflicting damage in those areas? 17 A. I'm not sure I'm clear on the question. 18 Q. Well, Officer Benson testified about seeing 19 Officer Waddell in the area of the steering column and 20 in the area of the trunk emblem, correct? 21 A. Yes. 22 Q. Did you read anywhere else, during the course 23 of your review for your executive recommendation, where 24 any other witness to this Bentley incident saw actions 25 consistent with what Officer Benson saw? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1907 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 811 1 A. I believe either officer saw him remove the 2 hubcap, but not at the steering column or the Bentley 3 emblem on the back. 4 Q. Okay. During the course of your review, did 5 you send any of these investigations back to either 6 lieutenant for further investigation? 7 A. I believe I did, yes. 8 Q. And in what area did you have concerns or did 9 you need follow-up in? 10 A. I believe it was with Lieutenant Proll's 11 investigation, and I don't remember exactly what I had 12 asked him to do for further follow-up. 13 Q. And in what medium did you ask for follow-up? 14 A. I believe it would have been e-mail. 15 Q. Okay. And you would have enumerated what 16 issues you had? 17 A. If I sent out an e-mail, yes. 18 Q. Okay. And do you know -- and as you sit here 19 today, you don't know what issues you had, right? 20 A. I don't recall the specifics, no. 21 Q. Was the fact that Officer Benson was the only 22 one who saw damage inflicted to the steering column one 23 of those issues? 24 A. Could have been. 25 Q. And did that matter get resolved, in some way, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1908 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 812 1 for you? 2 A. I don't believe it ever did, no. 3 Q. As you sit here today, does that bother you, in 4 any way? 5 A. I don't believe it was really relevant as far 6 as there were parts that we knew were removed and we 7 weren't able to confirm that the other parts were. 8 Q. So that's just, kind of, splitting hairs for 9 you at this point, is what you're saying? 10 MR. PALMER: Objection. Argumentative. 11 THE HEARING OFFICER: I'll allow it. 12 THE WITNESS: You're referring to splitting 13 hairs as being trivial? 14 MS. CASTILLO: Yeah. 15 THE WITNESS: I don't think it was, like I 16 said, relevant. I believe we knew what had been taken, 17 and whether this had occurred or not seemed irrelevant. 18 BY MS. CASTILLO: 19 Q. Did anything actually get taken, based on your 20 review? 21 A. I know that items were removed. 22 Q. Okay. And removed and then what? 23 A. Then put back after instructed to do so by 24 Sergeant Pfarr. 25 Q. And at what point was that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1909 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 813 1 A. Sometime during the incident at the scene. 2 Q. Is that what your understanding is, based on 3 your executive recommendation, or as you sit here today, 4 having heard all the testimony in the last three hearing 5 days preceding? 6 A. I believe it was based on what I made my 7 decision with my executive recommendation. 8 Q. Okay. Do you know how Captain Storton became 9 aware of this Bentley incident? 10 A. Yes. 11 Q. And how was that? 12 A. It was a conversation he had with Sergeant 13 Pfarr. 14 Q. It's a conversation he had with Sergeant Pfarr? 15 A. That's my understanding, yes. 16 Q. Even though Sergeant Pfarr told Lieutenant 17 Smith on the 13th of February that it was a conversation 18 he had with you? 19 A. I don't recall what you're talking about. 20 Q. Have you read the -- did you ever -- were you 21 advised -- did you have conversations with Lieutenant 22 Smith about the -- the Bentley incident after August of 23 2014? 24 A. After August of 2014. The first conversations 25 I had about the Bentley with anybody were in, I believe, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1910 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 814 1 December of '13, once Captain Storton notified me that 2 he had a conversation with Sergeant Pfarr. 3 Q. Okay. December '13? 4 A. Yes. 5 Q. Do you know who directed the initial memorandum 6 to be written? 7 A. I believe it was Captain Storton. 8 Q. And at what point was that? 9 A. I believe it was on December 20th. 10 Q. Of 2013? 11 A. Yes. 12 Q. In your review of the reports that you took 13 into consideration for your executive recommendation, 14 regarding the permission, do you know who first used the 15 term, blanket permission? 16 A. I don't recall. 17 Q. You testified on direct examination that that 18 was part of your consideration into whether or not 19 Officer Waddell was being truthful, was whether or not 20 he had, in fact, had blanket permission. 21 Is it your understanding that that was the crux 22 of the conversation between Officer Waddell and 23 Lieutenant Smith when you made your recommendation? 24 A. I'm not sure I understand what you're asking. 25 Q. Well, you used the term, blanket permission, on Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1911 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 815 1 direct examination. What were you discussing at that 2 point? 3 A. What I was discussing was, especially during 4 the interviews with Lieutenant Bledsoe, I believe that 5 term was used to see if Lieutenant Smith had given, 6 like, a blanket permission for people to come in as they 7 saw fit, which, I believe, he was asked about by 8 Lieutenant Bledsoe again in the second interview. 9 Q. Okay. And so the term, blanket permission, 10 would imply that there was, actually, officer discretion 11 as to when they would start their shift, correct? 12 A. No. I think it would imply that they had 13 permission to come in as they saw fit. 14 Q. Right. So their own discretion, they could 15 start whenever they wanted, they could leave whenever 16 they wanted? 17 A. Correct. 18 Q. Who assigned Lieutenant Proll to conduct the 19 Bentley investigation? 20 A. I can't recall if it was Captain Storton or I 21 did. 22 Q. And as the captain of operations who oversees 23 the CAT team, we've heard a lot of testimony regarding 24 the statistics. Did you collect those statistics? 25 A. They never asked for specifics on statistics Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1912 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 816 1 from the team, no. 2 Q. Did you have any idea if the department was 3 successful or not? 4 A. My conversations, especially with Lieutenant 5 Smith, were we wanted it to be a proactive assignment 6 with high visibility. There wasn't conversations about 7 specific data collected from notes. We wanted to be 8 sure people were proactive and busy, and those were my 9 instructions to him, to make sure that that was the case 10 with the people who would sign up, but I never collected 11 data as far as statistics because that wasn't really 12 relevant. It was more of, anecdotally, was the 13 appearance of the downtown better or worse, especially 14 from the business owner's perspective. 15 Q. And when was Officer Waddell put on 16 administrative leave, again? 17 A. December of '13. 18 Q. December of when? 19 A. '13, I believe. 20 Q. Do you recall being interviewed in January, a 21 month after, about the CAT program for a newspaper 22 article? 23 A. I have done a number of interviews about the 24 CAT team, yes. 25 Q. Do you remember giving a quote that Officer Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1913 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 817 1 Waddell had hit the ground running in the CAT program? 2 A. I don't recall that, no. 3 Q. At that time, he would have been on 4 administrative leave if it was in January, correct? 5 A. Yes. 6 Q. Now, your -- the May 8th memorandum, the 7 executive memorandum that is Department's Exhibit 8, did 8 you actually type this one or did someone type this one 9 for you? I'm sorry. Not 8. Was it 6? Did you type 10 this? 11 MR. PALMER: Are you on 6? 12 MS. CASTILLO: Yes. 13 MR. PALMER: All right. 14 THE WITNESS: Yes, I did. 15 BY MS. CASTILLO: 16 Q. Okay. So the summary of these are your words 17 and your impressions? 18 A. Yes. 19 Q. Okay. You indicate that Lieutenant Bledsoe 20 found overwhelming evidence of false statements from 21 Officer Waddell to Sergeant Pfarr via text and another 22 person. 23 What was the overwhelming evidence that you 24 discovered when you only listened to portions of that 25 audio and reviewed the report? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1914 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 818 1 A. I didn't need the audio to have the 2 overwhelming evidence. To me, the text message, itself, 3 was abundantly clear and couldn't be construed in any 4 other way, and then statements given to Sergeant Pfarr 5 when he arrived in person were identical that could not 6 be construed any other way. 7 Q. But you did not review the transcript of what 8 Officer Waddell said during his interview in it or 9 listen to the entire audio to hear his explanation as to 10 what the text message meant, right? 11 A. It was surmised in the report what he said and 12 there was nothing that offered an explanation. 13 Q. My question was -- I understand what Lieutenant 14 Bledsoe wrote, but you're an investigator of -- what did 15 you say -- 20 years? 16 A. I've been a police officer for 20 years. 17 Q. Isn't that the same thing? 18 A. Not necessarily. 19 Q. I probably would agree at this point. 20 So the overwhelming evidence is that you looked 21 at the text message and, to you, there was no other 22 explanation, right? 23 A. For that component of it, yes. 24 Q. Okay. And, again, based on what Lieutenant 25 Bledsoe observed, it was your understanding that Officer Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1915 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 819 1 Waddell continued to make false statements during this 2 administrative inquiry? 3 A. It was a portion of it. It was also part of 4 the testimony from Lieutenant Smith where he said he 5 hadn't had that conversation, the testimony from 6 Sergeant Pfarr where he said this is what took place 7 both over text message and the conversation, and the 8 fact that Officer Waddell was unable to provide any 9 explanation that made any sense or any reason for those 10 statements or that text message. 11 Q. Okay. And, again, you're relying on summarized 12 statements as understood by Lieutenant Bledsoe, correct? 13 A. Correct. 14 Q. Okay. Do you ever text message? 15 A. Yes, I do. 16 Q. Do you ever write in shorthand? 17 A. No. 18 Q. Never? Complete sentences always via text? 19 A. As much as possible. I'm not good with the 20 abbreviations, no. 21 Q. Now, there was a concern brought to the 22 department's attention, once Officer Waddell was 23 interested in promoting, that there was, potentially, a 24 breach of the law enforcement Code of Ethics, correct? 25 A. There were concerns from Sergeant Pfarr Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1916 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 820 1 regarding some of his behaviors. 2 Q. Okay. Well, whether or not he had integrity, 3 right? 4 A. I believe that was the crux of his concern, 5 yes. 6 Q. Because the Bentley was, maybe, a joke, but 7 maybe it was actually an attempted theft or it was 8 vehicle tampering, correct? 9 A. I believe that was part of his concern, in 10 addition to other things that he observed, yes. 11 Q. And this was only brought to the attention of 12 Sergeant Pfarr's supervisors in August, September or 13 October or December, right? 14 A. It was sometime in that time frame, yes. 15 Q. And during the time period leading up to all of 16 this, Officer Waddell is working as a police officer, 17 correct? 18 A. Correct. 19 Q. Testifying in court, correct? 20 A. I would assume. 21 Q. Arresting people, right? 22 A. Yes. 23 Q. And none of these issues have been brought to 24 your attention as a captain? 25 A. No. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1917 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 821 1 Q. When you wrote your executive summary, you 2 indicate in there that no one else perceived this 3 Bentley incident to be a practical joke. Do you recall 4 writing that? 5 A. Yes. 6 Q. Okay. What about Sergeant Pfarr, who said I 7 considered that it was a practical joke? 8 A. At that point, he believed that, but then he 9 eventually changed his mind. 10 Q. Okay. And you did read his memorandum where he 11 wrote, "I believed it was a practical joke," correct? 12 And that's Appellant's A, right? 13 A. Yes. 14 Q. And then you were aware of what Sergeant 15 Amoroso said, right? 16 A. Yes. 17 Q. Where he said, yes, we talked about the fact 18 that it would be funny to play a joke on Sergeant Pfarr 19 right now, right? 20 A. Something of that matter, yes. 21 Q. And that if he was to describe or had heard 22 about this, that you would have believed that that would 23 have been a practical joke played by Officer Waddell, 24 correct? 25 A. Sergeant Amoroso wasn't present during this Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1918 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 822 1 event. 2 Q. Right. He wasn't; yet, he was interviewed in 3 this matter, right? 4 A. Right. Because of his friendship and being a 5 neighbor to Officer Waddell. 6 Q. Okay. Did you listen to the interview of 7 Sergeant Amoroso? 8 A. No. 9 Q. So you have no idea what he actually said 10 during the course of that, other than what was written 11 down by Lieutenant Bledsoe, do you? 12 A. Whatever was surmised in the report is what I 13 had, yes. 14 Q. So you had no idea that he made any kind of 15 commentary about the fact that it would not have been 16 anything other than a practical joke, in his opinion, 17 based on his knowledge of the character of Officer 18 Waddell? 19 A. I don't know. 20 Q. I'm sorry? 21 A. I don't know. 22 Q. Now, at some point, you found that Officer 23 Waddell was engaging in allegation four of conduct that 24 he knew or reasonably should have known was conduct that 25 was violative of the California Vehicle Code Section, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1919 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 823 1 right? 2 A. Yes. 3 Q. And then you go on to discuss how Officer 4 Benson, who we heard testify, at this time, now, is a 5 seven-year officer, would have been or had recognized 6 that this -- if this wasn't a joke, would have been a 7 crime committed in his presence that he did nothing 8 about, right? 9 A. Yes. 10 Q. Okay. And so along with the supervisor on 11 scene, did it occur to you that the individuals who 12 were, in fact, on scene -- strike that. 13 Did you send the investigation back for 14 follow-up as to why Officer Benson wouldn't have stopped 15 a crime in progress in his presence, if that's, in fact, 16 what he was witnessing? 17 A. From my understanding of it, he believed 18 Sergeant Pfarr was going to handle the situation. 19 Q. No. That was not my question. 20 My question was, did you send it back for 21 follow-up for that specific question? 22 MR. PALMER: Objection. Asked and answered. 23 THE HEARING OFFICER: I'll allow it. You can 24 answer this one. 25 THE WITNESS: I don't recall if I did or not. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1920 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 824 1 BY MS. CASTILLO: 2 Q. But you also did read, during the course of 3 your review, that both individuals, Benson and Pfarr, 4 said or communicated, somehow, including Sergeant Pfarr, 5 saying, come on, let's get out of here before I'm 6 involved in his IA, right? 7 A. Yes. 8 Q. You're aware that they left together, right? 9 A. I don't know if they left at the same time or 10 if it was different times. 11 Q. Well, is it your understanding, based on your 12 review again, not what you've heard in this hearing, 13 that Sergeant Pfarr actually confronted Officer Waddell 14 at the scene regarding his actions? 15 A. No. I believe it was through the telephone. 16 Q. Now, are you aware as to whether or not the 17 telephone call -- the telephone records, were received 18 by Lieutenant Proll? 19 A. I don't believe they were. 20 Q. You don't? Did you read anywhere where they 21 were received? 22 A. I don't recall if I did. 23 Q. There were quotations attributed to Officer 24 Cudworth you're aware of, correct? 25 A. I don't know. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1921 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 825 1 Q. When did you last review in order to testify 2 today? 3 A. I went through it yesterday. 4 Q. Okay. What did you review? The packet, the 5 dummy file? 6 A. Correct. 7 Q. Okay. So if you based anything in this 8 recommendation, it was just everything that you read, 9 right? 10 A. It was the overall, yes. 11 Q. Okay. So if there were quotations that were 12 referenced in the investigation report that were 13 attributed to Officer Cudworth, you would assume that 14 those would be on the recording, correct? 15 A. If they're quotations, I would assume that. 16 Q. Okay. Or you would assume that they were 17 contained in some notes somewhere, right? 18 A. One or the other, yes. 19 Q. Okay. You write in your recommendation that 20 Officer Waddell, and I read, repeatedly, has a lack of 21 accountability. Where did you get that from? 22 A. Where did I get lack of accountability? 23 Q. Right. 24 A. Because I believe he lied numerous times and 25 was not accountable for it and never answered for it. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1922 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 826 1 Q. Again, you never listened to his Bentley IA 2 interview, at all, correct? 3 A. As I said, I didn't feel it was necessary to 4 listen to the entire interview. 5 Q. So you don't even know if he did express any 6 type of remorse for playing a joke, at all, did you? 7 You have no idea? 8 A. Unless it's listed in the report. There's a 9 difference between remorse and accountability, as well. 10 Q. I understand that, as well, but having lack of 11 accountability, then please give us the definition. 12 A. To me, it's being accountable for your 13 actions -- 14 Q. Okay. 15 A. -- taking responsibility for those. 16 Q. Okay. And you're also aware that he did have a 17 conversation the night of the Bentley incident with 18 Sergeant Pfarr, right? 19 A. Correct. 20 Q. And you saw that, at least, the context of the 21 conversation commemorated in that memo, right? 22 A. Yes. 23 Q. So what further steps would you, Captain, have 24 liked Officer Waddell to have gone through? 25 A. I would like for him, in this case, to have Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1923 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 827 1 admitted that he lied repeatedly. 2 Q. And, again, this is just based on everyone 3 else's investigation, right? 4 A. What I believe was a thorough, investigation, 5 yes. 6 Q. You indicate, in your summation, that Officer 7 Benson was convinced that Waddell had every intention of 8 taking the car part for personal gain, and, I assume, 9 since you've testified numerous times, that this is all 10 based on what Lieutenant Bledsoe interpreted. 11 What evidence did you have to rely on that, 12 other than Lieutenant Bledsoe's interpretation? 13 A. It's, actually, Lieutenant Proll's 14 interpretation. 15 Q. I'm sorry. Thank you for the clarification. 16 A. And it's based on the other statements from the 17 officers on scene. 18 Q. Okay. But it says Benson was convinced. So 19 was that because someone else told Benson that? I 20 didn't see that in the report anywhere. 21 A. I don't know what you're saying. 22 Q. Well, I'll refer you to the last page of your 23 memo, the second -- yeah, it would be the second 24 paragraph that starts with Benson. " Benson was 25 convinced that Waddell had every intention of taking the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1924 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 828 1 car part for personal gain." 2 What is that based on? 3 A. It would have been based on Lieutenant Proll's 4 investigation. 5 Q. And so just that interpretation, only, right? 6 That's the only evidence that you're basing this on? 7 A. That was Lieutenant Proll's summation, his 8 belief that Officer Benson believed that. So yes. 9 Q. Okay. And then the second paragraph after that 10 where it says, "Officer Kevany stated that taking the 11 emblem from the vehicle was definitely not a joke being 12 played on Sergeant Pfarr," that also came from 13 Lieutenant Bledsoe's investigation, right? 14 A. Lieutenant Proll's. 15 Q. I'm sorry. Thank you. 16 And so those quotes were also something that 17 you extracted from his report, right? 18 A. Yes. 19 Q. Okay. Same thing with the Officer Cudworth 20 quotes in the next paragraph? 21 A. Yes. 22 Q. Okay. Can I have you look at Department's -- 23 MS. DIETRICK: This is my assistant delivering 24 copies. 25 THE HEARING OFFICER: Wonderful. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1925 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 829 1 BY MS. CASTILLO: 2 Q. It's not marked as a department's exhibit, but 3 do you have your dummy file now in front of you? 4 THE HEARING OFFICER: Thank you. Shall we mark 5 this as a joint or an appellant's exhibit, and then 6 refer to it accordingly? 7 MS. CASTILLO: Well, I don't know because -- 8 THE HEARING OFFICER: Oh, you haven't had a 9 chance to look at it yet? 10 MS. CASTILLO: -- I don't know what's in there 11 yet. 12 THE HEARING OFFICER: So we'll put aside the 13 dummy file and mark it later, and, I guess, the captain 14 will look at what his original file says. 15 BY MS. CASTILLO: 16 Q. Can you look at the memorandum from Lieutenant 17 Proll via yourself to the chief, dated February 28th, 18 2014? And this memorandum lists interviews that were 19 conducted, correct? 20 A. I need to find it. 21 THE HEARING OFFICER: Could you identify, 22 again, the documents, please? 23 MS. CASTILLO: It's February 28th -- 24 THE HEARING OFFICER: This is a memo; is that 25 right? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1926 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 830 1 MS. CASTILLO: Right. 2 THE HEARING OFFICER: And it's February -- 3 MR. PALMER: February 8. 4 THE HEARING OFFICER: February 8th, 2014? 5 MR. PALMER: February 8. 6 BY MS. CASTILLO: 7 Q. So this is a 25-page memorandum? 8 A. Okay. 9 Q. Correct? 10 A. Appears to be, yes. 11 Q. Okay. And the exhibits, Number 1, is a compact 12 disk with recorded interviews, Number 2 is a memo and 13 Number 3 is a memo. I don't see any photographs listed 14 as exhibits to this. 15 Is there a separate memorandum that had 16 photographs attached to it for this Bentley 17 investigation? 18 A. The administrative inquiry file had all of the 19 notes, photographs, everything that would have been 20 included. This is, simply, the memo from Lieutenant 21 Proll to Chief Gesell. 22 Q. Okay. So did Chief Gesell not get the 23 photographs? 24 A. He would have gotten the complete 25 administrative inquiry files to review. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1927 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 831 1 Q. Okay. So -- 2 A. Which includes this. 3 Q. Is there an index that we can refer to that 4 would have listed whatever else, other than the exhibits 5 that were attached here, what the chief would have been 6 provided to base his recommendation on? 7 A. Chief would have been provided a complete 8 administrative inquiry file. 9 Q. Right. Is there an index or table of contents 10 that would have said, other than what the exhibits are, 11 these three? 12 A. No. I explained before there wasn't one done. 13 Q. Okay. Can you look at Department's Exhibit 7? 14 And this is the 14-page memorandum, correct? 15 A. It appears so, yes. 16 Q. Okay. This one on Page 14 lists four exhibits, 17 the compact disk with the recorded interviews, the copy 18 of the text messages, handwritten notes and the 19 attendance register. 20 The handwritten notes are those of who? 21 A. Those are Lieutenant Bledsoe's. 22 Q. Were there handwritten notes from Lieutenant 23 Proll that were reviewed? 24 A. I don't recall. 25 Q. Now, are you the only captain that reviewed Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1928 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 832 1 this to make an executive recommendation? 2 A. I believe Captain Storton also reviewed it. 3 Q. And where is the -- is the copy of his 4 executive recommendation contained in your file? 5 A. There was never a final version of this 6 executive recommendation. 7 Q. Why not? 8 MR. PALMER: Objection. Relevance. This is 9 getting into the discussion of drafts. Again, I don't 10 think we need to spend a lot of time on drafts. Are we 11 going to go through syntax errors or criticize people 12 for dangling at preposition? 13 THE HEARING OFFICER: I understand, but I'll 14 allow a little inquiry. 15 THE WITNESS: Can you repeat the question? 16 BY MS. CASTILLO: 17 Q. Well, Captain Storton also reviewed the 18 investigations, correct? 19 A. Correct. 20 Q. And he made a recommendation? 21 A. I don't know if he ever made a formal 22 recommendation with his review of the reports. 23 Q. Okay. Well, you said he made one that wasn't 24 final? 25 A. I believe so, yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1929 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 833 1 Q. And do you know what it was? 2 A. Do I know what the recommendation was? 3 Q. Yes. 4 A. Yes. 5 Q. What was it? 6 MR. PALMER: Again, objection. It doesn't 7 matter what Captain Storton thought. The issue here is 8 what the chief thought. The issue here is what the 9 chief thought, with Captain Staley's input. Captain 10 Storton's opinion is irrelevant. 11 THE HEARING OFFICER: It goes to weight. I'm 12 going to allow him to answer, but I'm not sure what good 13 it's going to do me. Go ahead. 14 THE WITNESS: I believe his recommendation was 15 between 14 and 21 days suspension. 16 BY MS. CASTILLO: 17 Q. So he had the same information you did? 18 A. I believe he did, yes. 19 Q. And for both investigations? 20 A. I would assume so, yes. 21 Q. And he also did not sit in at the Skelly 22 hearing, based on what you were aware of? 23 A. No, he did not. 24 Q. And his recommendation was not termination, 25 correct? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1930 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 834 1 A. That's correct. 2 Q. As the lieutenants who were drafting the 3 memorandums that you ultimately based your executive 4 recommendation on were writing them, did they provide 5 them to you for review before they were finalized? 6 A. Yes. 7 Q. And did you provide them with feedback, other 8 than any further information, like any further 9 follow-up? 10 A. I would have asked them any questions where I 11 still had concerns or questions about the case, yes. 12 Q. And were those drafts also provided to the 13 Skelly officer? 14 A. I have no idea. 15 Q. Would the city manager, based on your training 16 and experience, be involved in the process prior to 17 Skelly? 18 A. I don't know. 19 Q. Did you provide documents to the city manager 20 to review prior to Officer Waddell's Skelly? 21 A. I don't know if I provided any documentation to 22 the city manager. 23 Q. After the Skelly hearing, what is your 24 understanding of the process? 25 A. My understanding of the process after the Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1931 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 835 1 Skelly hearing? The chief makes a determination on what 2 he feels is an appropriate discipline. 3 Q. And then what? 4 A. Then he makes that recommendation and imposes 5 it. 6 Q. Okay. And are there other city personnel that 7 are involved in the decision to terminate an officer, or 8 to suspend or demote? 9 A. The city manager would have to be involved with 10 the termination case, yes. 11 Q. Okay. And is that prior to the notice of 12 intent or would that be after the Skelly and upon 13 service of the final notice determination? 14 A. I'm not sure where in the process they become 15 involved, to be honest with you. 16 Q. Would that -- well, the -- now, it's your 17 testimony that Captain Storton put Officer Waddell on 18 administrative leave? 19 A. Yes. 20 Q. Why didn't you do that if you were the 21 individual who is making the executive recommendation? 22 A. The chief and I, actually, had another 23 engagement that evening that we were leaving for. 24 Q. That's the only reason? 25 A. That was the main reason. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1932 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 836 1 Q. At what point did you take over this 2 investigation? 3 You had testified earlier that there was the 4 transition from where the administrative captain would 5 have normally overseen this particular case to where now 6 you, as the operations captain, took over? 7 A. I don't recall, exactly, when it occurred. 8 Q. Now, you've heard the testimony of Lieutenant 9 Smith and Sergeant Pfarr and Officer Benson so far, 10 correct? 11 A. Yes. 12 Q. And we've not heard from Lieutenant Proll. 13 Based on the testimony that you have heard, 14 would you still have the same executive recommendation? 15 A. Absolutely. 16 Q. Okay. And, again, it would also be without the 17 testimony, whatsoever, of Officer Waddell, right? 18 A. Yes. 19 Q. In your mind, is that unnecessary? 20 A. From what I've seen here, yes. 21 Q. Have you ever conducted a Skelly hearing? 22 A. I have not. 23 THE HEARING OFFICER: It's a rare privilege, I 24 assure you. 25 MS. CASTILLO: I don't have anything else on Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1933 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 837 1 cross right now. 2 THE HEARING OFFICER: Anything on re-direct? 3 MR. PALMER: Yes. 4 THE HEARING OFFICER: Go ahead. 5 6 REDIRECT EXAMINATION 7 BY MR. PALMER: 8 Q. Picking up on that last point, do you expect 9 Mr. Waddell's testimony to be anything materially 10 different from what was in his interviews? 11 MS. CASTILLO: Objection. Speculation. He 12 didn't listen to his interviews. 13 MR. PALMER: Yeah, he did. He listened to part 14 of it. 15 MS. CASTILLO: Part of one. 16 THE HEARING OFFICER: I'm going to allow it. 17 Go ahead. 18 THE WITNESS: No, I don't. 19 BY MR. PALMER: 20 Q. And to the extent you reviewed Mr. Waddell's 21 interview statement, as summarized in the IA, and 22 listened to snippets in the recording, did they convince 23 you to recommend anything different other than 24 termination? 25 A. No, they did not. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1934 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 838 1 Q. Did you rely upon the accuracy of the summaries 2 provided to you in both administrative investigation 3 reports? 4 A. Yes. 5 Q. And you sat through all the days of this 6 hearing? 7 A. Yes, I have. 8 Q. And you saw many of the witnesses, who were 9 interviewed by both lieutenants, testify here? 10 A. Yes. 11 Q. Have you seen any material difference from 12 their interview summaries and their testimony yet? 13 MS. CASTILLO: Objection. Calls for 14 speculation. 15 THE HEARING OFFICER: I'm going to allow it. 16 Go ahead. 17 THE WITNESS: I have not. 18 BY MR. PALMER: 19 Q. Please go to Exhibit 11. I want to focus on 20 Photographs 11-D through G. So, essentially, ignoring 21 the first one and then focusing on the last six. Are 22 you with me? 23 A. Yes. 24 Q. When -- did you and I meet with Sue Sanders 25 back on July 9th, 2015? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1935 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 839 1 A. Yes. 2 Q. Where was that meeting? 3 A. It was in her office. 4 Q. And did Sue Sanders pull out the original file, 5 which comprises the source material for your dummy file? 6 A. Yes. 7 Q. And were there some photographs in the back of 8 that file? 9 A. Yes, there were. 10 Q. Were those photographs in the back of the 11 original file that we asked Sue Sanders to pull out on 12 July 9th, did they include Photograph 11-A or all of 13 them, 11-A through whatever the last letter is, G? 14 A. I believe it was all of them. 15 Q. Do you recall, today, seeing all seven of these 16 photographs in Exhibit 11 during your initial review of 17 the administrative investigation report pertaining to 18 the CAT event? 19 A. Yes. 20 Q. All seven of them? 21 A. Yes. 22 Q. Okay. And -- strike that. 23 Do you know how close, if at all, Mr. Waddell 24 is to Sergeant Amoroso? 25 A. I do. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1936 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 840 1 Q. How close are they? 2 A. I know that they were neighbors and they were 3 good friends who would socialize together. 4 Q. Vacation together, do you know? 5 A. Yes. 6 Q. Multiple times, do you know? 7 A. I believe so, yes. 8 Q. Okay. There was a series of questions by 9 Ms. Castillo about Officer Benson at the Bentley event 10 and his, at least, perception that Mr. Waddell was 11 taking vehicle parts from the Bentley. Do you recall 12 the series of questions there? 13 A. Yes. 14 Q. If Officer Benson did perceive, in his own 15 mind, that Mr. Waddell was, say, for example, committing 16 a misdemeanor violation of Vehicle Code Section 852, 17 what's Officer Benson's duty requirement, duty 18 obligation, if any, at that point? 19 A. With a sergeant present, I would assume he 20 would rely on his sergeant to take care of any incident 21 there. 22 Q. Do you have an expectation that Officer Benson 23 would go back to the police department and write out a 24 police report for a violation of Vehicle Code Section 25 10852? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1937 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 841 1 A. No. I would expect that he would report it to 2 his supervisor who was already on scene. 3 Q. Do you recall the line of questioning 4 Ms. Castillo did with you about the last page of Exhibit 5 8? You can go to Exhibit 8, last page, Page 25. 6 Do you recall Ms. Castillo -- I'll wait until 7 you get there, sir. Exhibit 8, last page, Page 25. 8 Okay. 9 Do you remember Ms. Castillo pointing out that 10 there was three exhibits, one, two, and three, the disk 11 and two memos -- 12 A. Yes. 13 Q. -- during her questioning? Do you remember 14 that? 15 A. I do. 16 Q. And she pointed out that the photographs are 17 depicted there? 18 A. Correct. 19 Q. Do you recall, in your review, if the 20 photographs were described, nevertheless, in this report 21 by Lieutenant Proll? 22 A. I believe they were. 23 Q. Do you have a -- would you be able to point out 24 a page? 25 A. Probably not a page, no. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1938 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 842 1 Q. That's a good thing I can. Can you turn to 2 Page 24? Do you see where the headnote says 3 investigation? 4 A. Yes. 5 Q. Read that paragraph to yourself and tell me 6 when you're done. 7 A. Okay. 8 Q. Does that paragraph depict some amount of 9 photographs that Lieutenant Proll received as part of 10 his investigation? 11 A. Yes. 12 Q. Okay. Exhibit 6, please. So the record's 13 clear, this is your executive recommendation memo to 14 Chief Gesell? 15 A. Yes. 16 Q. Of May 8th, 2014? 17 A. Yes. 18 Q. And go to the last page thereof, please. The 19 second full paragraph, Ms. Castillo asked you a series 20 of questions about your interpretation of what Officer 21 Benson said there in that paragraph? 22 A. I'm sorry? 23 Q. The second paragraph from the top on the last 24 page of Exhibit 6, do you recall Ms. Castillo asking you 25 several questions about your summary and interpretation Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1939 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 843 1 of Officer Benson's contribution to this investigation? 2 A. Yes. 3 Q. Okay. And she pointed out and made a 4 particular note of the words, "personal gain," and 5 "theft." Do you recall that? 6 A. Yes. 7 Q. As you sit here today, do you know where those 8 words came from? 9 A. No. 10 Q. Some part of the investigation? 11 A. I would assume I remember seeing it during the 12 investigation at one point. 13 Q. Can you point to a page? 14 A. No. 15 Q. Let's see if I can. Go to Exhibit 19, please. 16 What's Exhibit 19? 17 A. The interview with Officer Benson by Lieutenant 18 Proll. 19 Q. So would you think -- before we get into any of 20 the details here, would you think that would be a part 21 or a portion of the source material one would use to 22 summarize Officer Benson's statement? 23 A. Yes. 24 Q. Okay. Page 16, please, of Exhibit 19. I want 25 you to focus in on the first four entries. It says Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1940 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 844 1 Proll, Benson, Proll, Benson, just the top four on Page 2 16. Tell me when you're done reviewing. 3 A. Okay. 4 Q. Who brings up the word, "theft"? 5 MS. CASTILLO: Objection. This is irrelevant. 6 I mean, we're arguing about stuff that he didn't even 7 review. 8 THE HEARING OFFICER: I'm going to allow it. 9 THE WITNESS: Officer Benson. 10 BY MR. PALMER: 11 Q. Go back one page, Page 15, still on Exhibit 19. 12 Read the very large paragraph there sort of above the 13 middle of the page to yourself and tell me when you're 14 done. 15 A. Okay. 16 Q. Did you see the two words, "personal gain," in 17 that paragraph? 18 A. Yes. 19 Q. Did that come from Benson or from Lieutenant 20 Proll? 21 A. Lieutenant Proll. 22 Q. Is Lieutenant Proll just summarizing what he 23 understands at this point in the form of a question? 24 A. It appears so. 25 Q. And how does Officer Benson respond? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1941 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 845 1 A. "Uh-huh." 2 Q. Which, of course, could be taken either way, 3 but does it sound like a negative uh-huh, or would you 4 probably have to review the actual recording? 5 A. Sounds like in the affirmative. 6 Q. So does Officer Benson say, oh, no, I don't 7 think he was doing it for personal gain? 8 MS. CASTILLO: Objection. The recording... 9 THE HEARING OFFICER: Yeah. We can move on. I 10 get the picture. 11 BY MR. PALMER: 12 Q. Okay. Now, at the time that Captain Storton 13 weighed in, how much time and grade as a captain did he 14 have? 15 A. Less than a year. 16 Q. Do you know what, if any, management-type -- 17 police management-type classes or courses or conferences 18 he had gone to by that time? 19 A. I have no idea. 20 Q. Was he -- strike that. 21 Do you know if -- let me do it this way. 22 Captain Storton was the operations captain or 23 administrative captain at that time? 24 A. Administrative. 25 Q. Do you know how many, if any, at all, Captain Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1942 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 846 1 Storton -- administrative investigations he had reviewed 2 to that point? 3 A. I don't believe he had done any. 4 Q. Do you know how many executive recommendations 5 Captain Storton had made to the chief after reviewing an 6 administrative investigation by that time? 7 A. I don't believe he had done any. 8 Q. Did you have your own personal reaction to 9 finding out that Captain Storton had recommended 10 something less than termination? 11 MS. CASTILLO: Objection. Relevance. 12 THE HEARING OFFICER: It's relevant now. Go 13 ahead. 14 THE WITNESS: Yes, I did. 15 BY MR. PALMER: 16 Q. What was it? 17 A. Frankly, it was shock. 18 Q. Explain. 19 A. Knowing the circumstances of the case and 20 having reviewed what I had reviewed, to recommend 21 anything less than termination, to me, was shocking. 22 Q. Did you express that to Captain Storton? 23 A. Yes, I did. 24 Q. How did he react? 25 A. I think Captain Storton, at the time, was quite Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1943 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 847 1 insecure as far as his position as far as making 2 recommendations, since he hadn't done it before and he 3 was unsure of which direction to go. 4 MR. PALMER: Nothing further. 5 THE HEARING OFFICER: Anything on re-direct? 6 MS. CASTILLO: Yes. 7 8 RECROSS-EXAMINATION 9 BY MS. CASTILLO: 10 Q. Are there only two captains in the San Luis 11 Obispo Police Department? 12 A. Yes. 13 Q. So if there were any internal affairs 14 investigation prior to this, it would have been yourself 15 or Captain Storton, who made the executive 16 recommendations in those cases? 17 A. Yes. 18 Q. So in a case where Officer Waddell was a 19 witness where another officer had, you know, on the 20 sidewalk, grabbed his gun out of his holster, that 21 administrative investigation and executive 22 recommendation would have been made by you? 23 MR. PALMER: Objection. Vague as to time. 24 BY MS. CASTILLO: 25 Q. Well, did you do that one? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1944 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 848 1 A. You're going to have to be more specific about 2 the case. 3 Q. Well, are you familiar with the case I'm 4 referring to? 5 A. I don't believe so. I need more specifics. 6 Q. Did you make the executive recommendation in 7 that case, the formal one? 8 MR. PALMER: I would object. 9 MS. CASTILLO: I don't need to go into it. 10 THE HEARING OFFICER: What case are we talking 11 about? 12 MS. CASTILLO: Another one where he -- this 13 captain just indicated that the other captain would have 14 not made any other recommendations, and so if there was 15 another case that had another recommendation -- 16 THE HEARING OFFICER: Are you saying that 17 Captain Storton did make a recommendation on some other 18 case? Is that what you're alluding to? 19 MS. CASTILLO: I believe so. 20 MR. PALMER: In which case? Where's your 21 Pitchess motion? 22 MS. CASTILLO: I'm not asking about the 23 details. I'm asking -- 24 MR. PALMER: Sorry to be snarky, but -- 25 /// Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1945 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 849 1 BY MS. CASTILLO: 2 Q. Did you make recommendation in every single 3 internal affairs investigation preceding this one? 4 A. No. 5 Q. Okay. So any other one that you didn't make 6 would have been made by Captain Storton? 7 A. I'm not sure of the time frame you're referring 8 to. 9 Q. Well, okay. In the last -- 10 A. There's a lot of investigations that have been 11 through the years. I can't explain -- 12 Q. Well, how many years? You've been a captain 13 for six years, right? 14 A. That's correct. 15 Q. And Captain Storton had been a captain for how 16 long? 17 A. I believe less than a year at that point. 18 Q. So within the time frame of a year that he had 19 been a captain, is it your testimony that he had made no 20 executive recommendations on any internal affairs 21 investigations? 22 A. I don't believe he did. 23 Q. Okay. And you said that Officer Waddell and 24 Sergeant Amoroso went on vacations together? 25 A. That's not what I said. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1946 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 850 1 Q. Well, he asked you about socializing off duty, 2 right? 3 A. Yes. 4 Q. And then he asked you about went on vacations 5 together. I wrote that down. 6 A. I don't, specifically, remember him asking 7 about vacations. I know they socialized together and 8 they were neighbors. 9 Q. Okay. Do you know about vacations? 10 A. I don't. 11 Q. Okay. Counsel just asked you about the subject 12 matter upon which the reports would have been written, 13 and he went through, for an example, Officer Benson's 14 transcript with you. 15 Do you recall that -- that line of questioning, 16 at least? 17 A. Yes. 18 Q. Okay. And prior to this hearing, you've never 19 seen any of these transcripts, correct? 20 A. That's correct. 21 Q. Okay. You're, of course, aware that Officer 22 Cudworth's interview, 19 minutes of it, is not reported, 23 right? 24 A. I'm not aware of that. 25 Q. Well, it's in the summaries, right? You did Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1947 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 851 1 read that? 2 A. I don't recall that piece of information, no. 3 Q. Oh. Is there a reason you didn't send -- well, 4 you didn't listen to that interview, right? 5 A. That's correct. 6 Q. Okay. So do you know where any of these quotes 7 that are attributed to Officer Cudworth, where those 8 came from? 9 A. I would assume from Lieutenant Proll's review 10 of the statements. 11 Q. And that would have been the recorded 12 interview? 13 A. Or his notes. 14 Q. Okay. But you can see on Page 8, right, of -- 15 THE HEARING OFFICER: Page 8 of... 16 BY MS. CASTILLO: 17 Q. -- of Exhibit 8? 18 A. Page 8 of Exhibit 8? 19 Q. Uh-huh. Of the last -- where it says the 20 interview lasted 29 minutes and the recorder 21 malfunctioned at 11: 21. 22 A. Yes. 23 Q. Did you send the lieutenant back to interview 24 Cudworth to get that information nonrecording? 25 A. I don't believe so, no. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1948 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 852 1 Q. And you don't have notes anywhere from that 2 portion of the interview, right? 3 A. I don't believe so, no. 4 Q. Okay. So these quotes are the quotes that are 5 attributed to Officer Cudworth would be from -- do you 6 know where? 7 A. From wherever Lieutenant Proll was able to 8 retain them. 9 Q. Okay. Tow truck driver's interview was also 10 not recorded, right? 11 A. I don't believe so, no. 12 MS. CASTILLO: Nothing else right now. Nothing 13 further right now. 14 THE HEARING OFFICER: Anything on re-direct? 15 MR. PALMER: No. 16 THE HEARING OFFICER: I just wanted to ask a 17 couple of questions. 18 Captain, you testified, I think, originally, 19 the CAT shift ran from 11: 00 a.m. to 4:00 in the 20 afternoon; is that right? 21 THE WITNESS: Originally, the CAT shift was -- 22 it varied. The different length of hours when we first 23 initiated it, it could be eight hours. I believe we had 24 people on four twelves at times. It did vary 25 considerably. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1949 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 853 1 THE HEARING OFFICER: Well, at some point, it 2 became a permanent assignment, right? 3 THE WITNESS: It did. 4 THE HEARING OFFICER: And are those hours -- or 5 did they become 7:00 a.m. to 5:00 p.m.? 6 THE WITNESS: I believe so, yes. 7 THE HEARING OFFICER: I just wanted -- there 8 was some earlier testimony about who was assigned to the 9 permanent duty and I was just wondering if you know the 10 first names of these officers. I have Officers Behrens 11 and Fellows. Is that right? 12 THE WITNESS: Yes. It's Jim Fellows and Jeremy 13 Behrens. 14 THE HEARING OFFICER: Jim? 15 THE WITNESS: Jim Fellows. 16 THE HEARING OFFICER: And Jeremy with a J? 17 THE WITNESS: Correct. 18 THE HEARING OFFICER: All right. That's all. 19 Anything else on re-direct? 20 MR. PALMER: No, sir. 21 THE HEARING OFFICER: Re-cross? 22 MS. CASTILLO: One more question. 23 THE HEARING OFFICER: Go ahead. 24 BY MS. CASTILLO: 25 Q. Your testimony is that you have more experience Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1950 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 854 1 as a captain than Captain Storton; is that right? 2 A. Correct. 3 Q. But he's taking over as the acting chief in 4 August, correct? 5 A. In September. 6 MS. CASTILLO: Oh, September. Okay. Nothing 7 further. 8 THE HEARING OFFICER: Okay. Off the record for 9 a second. 10 (Discussion off the record.) 11 THE HEARING OFFICER: All right. So with 12 respect to the testimony of Captain Staley, who is 13 called by the department, anything further from the 14 department? 15 MR. PALMER: No, sir. 16 THE HEARING OFFICER: Anything further on 17 cross-examination, at least, at this time, from the 18 appellant? 19 MS. CASTILLO: No. 20 THE HEARING OFFICER: No. All right. Very 21 good. 22 So, Captain, you may step down. Any further 23 witnesses? 24 MR. PALMER: No. Rest, subject to rebuttal. 25 THE HEARING OFFICER: Very good. We're going Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1951 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 855 1 to take a break now. We're going to have recess till 2 2:30. At that time, we'll hear from Captain Storton and 3 we'll also have an opportunity for the appellant's 4 advocates to review the dummy file. I guess we'll take 5 up marking all that and looking at that later, and, if 6 necessary, we'll recall Captain Staley at the 7 appropriate time. Thanks everybody. 8 (Luncheon recess.) 9 THE HEARING OFFICER: We're going to go back on 10 the record. It's 2:37. The department has rested, the 11 appellant is beginning its case and chief, and I believe 12 you're calling Captain Storton, to start off? 13 MS. CASTILLO: Correct. 14 THE HEARING OFFICER: I think he's outside in 15 the hallway. 16 Captain, we have a hot seat for you right 17 there. 18 THE WITNESS: Thank you. 19 THE HEARING OFFICER: Good afternoon, sir. My 20 name is Chris Cameron. I'm the hearing officer. We're 21 going to begin by getting you to raise your right hand. 22 Do you affirm the testimony you're about to 23 give will be the truth, the whole truth and nothing but 24 the truth? 25 THE WITNESS: I do. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1952 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 856 1 THE HEARING OFFICER: Great. Put your hand 2 down. 3 Do we have the spelling of Captain Storton's 4 name? I think we do. Do you have it? 5 THE COURT REPORTER: I have it, yeah. 6 THE HEARING OFFICER: Ms. Castillo, you may 7 proceed. 8 MS. CASTILLO: Thank you. 9 10 DIRECT EXAMINATION 11 BY MS. CASTILLO: 12 Q. Good afternoon. 13 A. Hi there. 14 Q. Can you please state your occupation and 15 employer? 16 A. I work for the City of San Luis Obispo and I'm 17 a police captain with the San Luis Obispo Police 18 Department. 19 Q. And how long have you been employed as a police 20 captain? 21 A. For two and a half years. 22 Q. And how long have you been a sworn peace 23 officer with the City of San Luis Obispo? 24 A. For about 20 years. 25 Q. Any prior law enforcement experience anywhere Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1953 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 857 1 else? 2 A. Uh, not sworn, but civilian. 3 Q. In what capacity? 4 A. I work for the City of San Luis Obispo, started 5 my career as the evidence technician with the department 6 in the civilian capacity for four years, and also worked 7 for the City of Fresno as an evidence technician for 8 four years. 9 Q. Okay. And are you familiar with Kevin Waddell? 10 A. Yes, I am. 11 Q. So you recognize him sitting next to me? 12 A. I do. 13 Q. We've heard some testimony regarding the 14 structure of the San Luis Obispo Police Department and 15 the various job assignments given to the two captains 16 that are employed there. 17 It's our understanding that there is an 18 administrative captain and a captain in charge of 19 operations; is that correct? 20 A. Yes. 21 Q. Okay. And what is your assignment, currently? 22 A. I am the administrative captain. 23 Q. And what is the job duties of the 24 administrative captain? 25 A. Basically, I oversee our nonsworn staff, our Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1954 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 858 1 records dispatch, the financial portion of our 2 department functions and oversee those particular areas. 3 Q. Okay. And, in comparison, what does the 4 operations captain do? 5 A. Operations captain deals with the field 6 functions of our department, the police officers, 7 traffic and enforcement. 8 Q. At some point in 2013, did you serve Officer 9 Waddell with a notice of internal affairs inquiry or 10 investigation? 11 A. Yes. 12 Q. And what was that investigation pertaining to? 13 A. This had to do with the investigation of an 14 allegation of providing false statements to a supervisor 15 and as well as not showing up to work on time. 16 Q. Okay. And would that supervisor have been 17 Sergeant Chad Pfarr? 18 A. Correct. 19 Q. And why was it that you served him that 20 internal affairs notice? 21 A. Initially, when the allegations were 22 discovered, this discussion had taken place with the 23 chief of police about the allegations and I was assigned 24 the investigation for review. 25 Q. And what does -- what did that entail, being Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1955 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 859 1 assigned the investigation for review? 2 A. From that point, I don't actually do the 3 investigation. I assigned it to a lieutenant, who 4 actually did the functions of the investigation and he 5 reported his findings to me. 6 Q. And then if you would have any need for 7 clarification or follow-up, then you would go back to 8 that lieutenant and conduct that or have them follow 9 through with that? 10 A. Correct. 11 Q. Okay. And then once completed or once the 12 investigation was completed to your satisfaction, what 13 would have been your role at that point? 14 A. I would have reviewed the initial investigation 15 and then provided a recommendation as to discipline to 16 the chief of police. 17 Q. Would that recommendation have included whether 18 or not allegations would have been sustained? 19 A. Correct. 20 Q. Okay. And would that recommendation have 21 included a proposed penalty, if any? 22 A. Yes. 23 Q. Okay. At some point, did you also serve 24 Officer Waddell with notice that he was to be placed on 25 administrative leave? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1956 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 860 1 A. Yes, I did. 2 Q. Do you remember about when that occurred? 3 A. In December of 2013. 4 Q. Okay. Now, at some point, were you -- you said 5 you had initially been assigned the investigation at 6 some point. Were you removed from the investigation? 7 A. Yes. 8 MR. PALMER: Objection. Misstates the 9 evidence. 10 THE HEARING OFFICER: Well, I don't know if 11 that's the evidence or not. 12 MR. PALMER: I heard he was inside the 13 investigation for review, not the investigation, itself. 14 Perhaps the fine point I'm going to make. 15 THE HEARING OFFICER: Do you understand the 16 question? 17 THE WITNESS: As far as the investigation, I 18 did not conduct the investigation. I reviewed the 19 investigation materials. 20 BY MS. CASTILLO: 21 Q. Okay. I'm sorry. You were assigned and then 22 you assigned a lieutenant and then you were going to 23 conduct the ultimate review before it went to the Skelly 24 officer? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1957 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 861 1 Q. Okay. Did you ultimately end up -- well, 2 strike that. 3 Did you -- at some point, did you complete 4 the -- well, was there another investigation involving 5 Officer Waddell that you were a part of? 6 A. Yes. 7 Q. Okay. And what investigation was that? 8 A. This was an investigation pertaining to a scene 9 involving an accident where a Bentley had been involved 10 in the accident and there was some allegations of some 11 property being removed from the Bentley. 12 Q. And what was your role with respect to that 13 investigation? 14 A. I was contacted by a supervisor who had told me 15 about the incident and I provided that information to 16 Chief Gesell. 17 Q. And which supervisor told you about that 18 incident? 19 A. Sergeant Pfarr. 20 Q. And when did that occur? 21 A. That would have been in mid-December of 2013. 22 Q. And as a result of that information, did you 23 have Sergeant Pfarr do anything? 24 A. Sergeant Pfarr provided me with a memo. 25 Q. Was that on his initiative or at your Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1958 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 862 1 direction? 2 A. At my direction. 3 Q. And why did you think it was important -- or 4 did you find it to be important that he wrote a memo 5 regarding that incident? 6 A. I wanted to document what he had told me. At 7 this point, it was strictly allegations. I was not 8 really sure what it would lead to and wanted to just 9 make sure we got the information down factual from his 10 perspective. 11 Q. And this information that he communicated to 12 you was about an incident about taking place some eight 13 months before, or so? 14 A. Yes. 15 Q. And then you communicated that to Chief Gesell? 16 A. Yes. 17 Q. What was that communication like or how did 18 that occur? 19 A. I don't remember the conversation, 20 specifically, but knowing the existing investigation 21 that was going on coupled with the secondary 22 information, provided that information to him and, at 23 some point, it was decided to open up a concurrent 24 investigation. 25 Q. Okay. And did you serve Officer Waddell with Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1959 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 863 1 notice of that investigation, do you know? 2 A. I don't recall. I don't believe I did. 3 Q. Ultimately, are you aware as to whether or not 4 both of these internal affairs investigations were 5 completed by the lieutenants that were assigned to 6 complete them? 7 A. I believe they were. 8 Q. And did you review the materials that were 9 assigned to those -- or that were compiled by those 10 lieutenants? 11 A. Not completely. 12 Q. What did you review? 13 A. My review was through the initial allegation of 14 the statements to the supervisor and it was up until the 15 point of, probably, late December of '13, early January 16 of '14 where the -- both cases were assigned to other 17 supervisors. 18 Q. Okay. So let's back up. 19 So the investigations were -- were they both 20 assigned to you at some point? 21 A. No. The first investigation was, involving the 22 statements to the supervisor, that one was assigned to 23 me, and then the second one was not assigned to me. 24 Q. Do you know who the second one was assigned to? 25 A. Well, as far as the investigation, it was Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1960 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 864 1 Lieutenant Proll who did the investigation. 2 Q. Okay. And then who was assigned to review and 3 make the recommendation on the second investigation? 4 A. Captain Staley. 5 Q. Was there -- were you informed as to why the 6 two investigations were bifurcated at that point? 7 A. Not specifically, no. 8 Q. Did you have any idea? 9 A. Yes. 10 Q. And can you -- what was it? 11 A. I think because we had so many moving parts 12 involving so many different lieutenants. We only have 13 three lieutenants that are assigned to do our more 14 critical internal affairs investigations, and because 15 the second investigation involved Lieutenant Smith and 16 Lieutenant Bledsoe of having some knowledge at some 17 course in time, it was assigned to Lieutenant Proll to 18 keep that investigation separate from them. 19 Q. Okay. Because the other lieutenants were 20 potential witnesses? 21 A. Correct. 22 Q. Even though one of those lieutenants was then 23 assigned to be the investigator in the first 24 investigation that you were overseeing, Lieutenant 25 Bledsoe? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1961 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 865 1 A. Yes. He was assigned the first one. 2 Q. Okay. So we have lieutenants who are 3 witnesses, lieutenants who are investigators and then 4 lieutenants who wore both hats? Is that your 5 understanding in this particular scenario? 6 A. I'm not sure if I understand your question. 7 Q. Well, you said Lieutenant Smith and Lieutenant 8 Bledsoe had information as to the second incident, 9 correct, and that's why it was assigned to Lieutenant 10 Proll, right? 11 A. Correct. 12 Q. But Lieutenant Bledsoe with the individual who 13 was conducting the investigation on the first incident 14 where Lieutenant Smith was a witness, right? 15 A. Yes. 16 Q. Okay. Now, so up until, you said, January, you 17 were overseeing the initial investigation with the 18 witnesses pertaining to the -- we call it the CAT 19 investigation. Is that correct? 20 A. I -- 21 Q. Well, I mean, that's your understanding of it? 22 A. I'm not familiar with it being called that. 23 Q. Well, the texting, showing up to late one. 24 A. Yes. 25 Q. Okay. And you were reassigned off of that, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1962 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 866 1 approximately, when? 2 A. It was late December, early January. 3 Q. And that would be January of 2014? 4 A. Correct. 5 Q. And prior to your reassignment, what did you 6 review? 7 A. I'm sorry. As far as -- 8 Q. Well, you said you reviewed materials. What 9 did you review? 10 A. I reviewed the findings by Lieutenant Bledsoe 11 in his final report. 12 Q. Okay. And anything else? 13 A. Just material associated with the 14 investigation. I don't recall, specifically, but I do 15 recall reading the report. 16 Q. Okay. Did you -- well, when was the last time 17 you looked at the materials? 18 A. Um, I tried to look today. I only had a couple 19 of hours to prepare. So I tried to look as much as I 20 could. 21 Q. So you looked at the materials today? 22 A. Yes. 23 Q. Okay. I'll have you look at Department's 24 Exhibit 7. 25 THE HEARING OFFICER: You've got that in front Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1963 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 867 1 of him there? 2 BY MS. CASTILLO: 3 Q. Is this what you reviewed in preparation for 4 your testimony today? 5 A. Yes, I did. 6 Q. Have you reviewed anything else? 7 A. I reviewed a working document that I had 8 written, providing Chief Gesell with recommendations. 9 Q. Okay. When you originally reviewed this report 10 made by Lieutenant Bledsoe, did it include the summaries 11 of the interviews that he conducted with the witnesses 12 on this particular case? 13 A. Yes. In this document I'm looking at here? 14 Q. Yes. 15 A. Yes. 16 Q. Okay. Did it include a copy of the text 17 message that was sent from Officer Waddell to Sergeant 18 Pfarr? 19 A. I did not review that today and I don't recall 20 if I did back then. 21 Q. Did you listen to any audio? 22 A. I did not. 23 Q. Did you -- there's -- if you turn to Page 14, 24 there is a list of exhibits. Two include what's labeled 25 in Number 3 as handwritten notes. Do you see that? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1964 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 868 1 A. I do. 2 Q. Do you recall reviewing handwritten notes from 3 Lieutenant Bledsoe? 4 A. I'm certain they were in the case file when it 5 was presented to me. I don't recall, specifically, at 6 the time. 7 Q. Okay. By the time the case file would have 8 gotten to you, would it have contained everything that 9 was part of the completed investigation from Lieutenant 10 Bledsoe? 11 A. Yes. That's normal practice. 12 Q. Okay. Now, this document says that it was 13 forwarded to Captain Staley. 14 Was it originally forwarded to you and then 15 later reforwarded to Captain Staley? 16 A. Yes. 17 Q. Okay. And you mentioned that you had a working 18 recommendation based on your review of this internal 19 affairs investigation. 20 Did you have any knowledge of Officer Waddell 21 as an officer at the San Luis Obispo Police Department 22 in the time that you worked there that was outside of 23 what you reviewed for the purposes of this 24 investigation? I mean, did you ever supervise him? 25 A. I can't recall, directly. I can't recall, Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1965 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 869 1 directly, as a direct supervisor. 2 Q. Okay. I know he had multiple special 3 assignments, like motors. Were you ever a motor 4 officer? 5 A. I was, but we never worked together and I was 6 not his sergeant. 7 Q. Were you ever a lieutenant in motors? 8 A. No. We don't have a lieutenant that oversees 9 motors. We have a sergeant that oversees motors. 10 Q. Okay. So do you -- when you were determining 11 whether to make a recommendation for discipline, what 12 factors did you take into consideration? 13 MR. PALMER: Objection. Relevance. Same 14 objection I made earlier. What Captain Storton 15 considered, how he analyzed it, what recommendation he 16 ultimately made is irrelevant. The only recommendation 17 that's relevant is the chief's. 18 THE HEARING OFFICER: Noted. It really goes to 19 the weight. I'm going to allow it. You may answer. 20 THE WITNESS: Can you ask the question again? 21 BY MS. CASTILLO: 22 Q. Did you make -- did you ultimately make a 23 determination as to what, if any, discipline would be 24 appropriate? 25 A. I did. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1966 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 870 1 Q. Okay. And what factors did you include in that 2 determination? 3 A. The factors were what I had read in the report 4 that was provided to me at the time. This was the first 5 time I had ever had a chance to provide an executive 6 summary of discipline to the chief and did not have much 7 experience or knowledge in that area. So I based it 8 upon a previous case that I was aware of within the 9 department. 10 Q. Had you ever conducted an internal affairs 11 investigation, yourself? 12 A. Yes, I have. 13 Q. Approximately, how many? 14 A. 10 to 20. 15 Q. So when you were making a determination as 16 to -- well, first of all, did you determine that some of 17 the allegations should be sustained? 18 A. Yes. 19 Q. Okay. And when you determined that, did you 20 decide that, perhaps, there was some discipline that 21 would be appropriate? 22 A. Yes. 23 Q. Okay. And what factors did you use to 24 determine that? 25 MR. PALMER: Objection. Asked and answered. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1967 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 871 1 MS. CASTILLO: I don't think he answered that. 2 THE HEARING OFFICER: I'll let him have another 3 shot at it. Go ahead. 4 THE WITNESS: The factors I used were there was 5 information I was aware of of prior discipline that 6 occurred in the department and that was one factor that 7 I used, based upon the information that was provided to 8 me at that time. 9 BY MS. CASTILLO: 10 Q. Okay. So you used the discipline of another 11 officer as a comparison? 12 A. Yes. 13 Q. Okay. Not previous discipline of Officer 14 Waddell, though, correct? 15 A. Correct. 16 Q. Okay. Did you utilize, as a factor, the fact 17 that he had no prior discipline in your determination 18 recommendation? 19 A. No. 20 Q. Okay. Did you consider -- okay. 21 So can you elaborate as to what the other 22 circumstances -- without going into detail as to that 23 particular officer, what other circumstance you are 24 aware of that you used as a comparison for a 25 recommendation? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1968 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 872 1 MR. PALMER: Objection. Relevance, and if 2 we're going to go into other officer's personnel file, 3 we need a Pitchess motion. It's privileged. 4 THE HEARING OFFICER: Yeah. Let's stay away 5 from that. 6 BY MS. CASTILLO: 7 Q. Well, I don't need to know the officer's name 8 or anything like that, but were the facts similar to 9 this situation? 10 THE HEARING OFFICER: Why don't we just ask 11 what the facts were and we'll leave the names out of it 12 and see if we need to go further. 13 MR. PALMER: I'd like a continuing objection. 14 THE HEARING OFFICER: I understand. 15 BY MS. CASTILLO: 16 Q. What were the facts? 17 A. There was a situation where some information on 18 a police report was misrepresented. 19 Q. And what was the discipline that was given to 20 that particular officer? 21 A. I believe, and I'm not certain on this, it was 22 40 hours of time. 23 Q. Based on your initial review of the 24 allegations, without listening to the audio and just 25 based only on the report as written by Lieutenant Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1969 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 873 1 Bledsoe, what was your recommendation to chief -- the 2 chief -- the Skelly officer in this case? 3 A. In this case, it was 80 hours of time off and 4 removal from the special assignment on the S.W.A.T. 5 team. 6 Q. And was this conveyed? 7 A. To? 8 Q. The chief. 9 A. Yes, it was. 10 THE HEARING OFFICER: Is this still the same 11 case with the police report misrepresentation? This is 12 different? 13 MS. CASTILLO: This is on Officer Waddell's. 14 THE WITNESS: Correct. 15 THE HEARING OFFICER: Oh, I see. Okay. Go 16 ahead. 17 BY MS. CASTILLO: 18 Q. And how was it conveyed? 19 A. I recall it was a meeting in his office and 20 there was a discussion about the discipline with him. 21 Q. Okay. And then, subsequently, you were removed 22 from the -- the -- you were removed from writing the 23 formalized executive summary? 24 A. I was. At the time, Chief Gesell had brought a 25 policy that indicated that the investigation should be Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1970 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 874 1 controlled by the supervising -- by the ultimate manager 2 of that division where Officer Waddell, at the time, was 3 under of the direct -- under the immediate -- I'm 4 sorry -- under the managerial supervision of Captain 5 Staley on the operations side of the house. 6 Q. Who assigned you to the -- who assigned you to 7 conduct the assignment and executive summary 8 preparation, in the first place? 9 A. Initially, Chief Gesell. 10 Q. Okay. Did you convey your recommendation to 11 anyone but Chief Gesell? 12 A. I did. 13 Q. Who else did you convey a recommendation to? 14 A. Because this was a working document, in my 15 mind, and I wasn't completely familiar with the 16 circumstances, I asked the human resources director to 17 review the document. 18 Q. What do you mean the circumstances? 19 A. My evaluation and recommendation for 20 discipline. 21 Q. Okay. And the policy that you've just referred 22 to, where is that policy found? 23 A. I think it is through our Lexipol Policy 1020, 24 I believe. 25 Q. And that would have been in effect at the time Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1971 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 875 1 of your assignment or at the time that you were drafting 2 the executive summary? 3 A. It would have been at the time I was drafting. 4 Q. Okay. And other than the human resources 5 individual that you mentioned, did you convey your 6 recommendation to anyone else? 7 A. I may have had some casual conversations 8 through the process with Captain Staley, but I can't 9 articulate, specifically, what those conversations would 10 have been. I know we had discussed several of the 11 issues pertaining to these investigations over the 12 course of time. 13 Q. Did you review the -- did you review the 14 secondary investigation that involved Officer Waddell? 15 A. I did not. 16 Q. Did you have any conversations with Lieutenant 17 Smith regarding the Bentley incident? 18 A. I can't recall, specifically. 19 Q. Do you know at what point the department became 20 aware of the Bentley incident? 21 A. I know when I became aware. 22 Q. Did you learn that any of the lieutenants 23 were -- did you learn that anyone became aware of the 24 Bentley incident around the time of the detective 25 promotions, or detective selection? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1972 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 876 1 A. Yes. 2 Q. And what did you learn? 3 A. When Sergeant Pfarr had talked to me in 4 December of 2013, he had indicated, at some point in 5 time, he had talked to both Lieutenant Bledsoe and 6 Lieutenant Smith about the incident, but I'm unsure as 7 to the exact timing as to when those conversations took 8 place, other than I think it was around August, 9 September of 2013. 10 Q. Okay. But it wasn't until December that he 11 brought it to your attention? 12 A. Correct. 13 Q. And you were never advised of those issue -- or 14 of the matter by either Lieutenant Bledsoe or Lieutenant 15 Smith? 16 A. Correct. 17 Q. Okay. Do you know why Officer Waddell was 18 placed on administrative leave? 19 A. Well, it was at the direction of Chief Gesell. 20 Q. But do you know why he was placed on 21 administrative leave in December? 22 A. I believe there was the -- with both 23 investigations going and the allegations of both 24 investigations, that was the decision that Chief Gesell 25 had made. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1973 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 877 1 Q. And by allegations, are you referring to 2 anything in particular? 3 A. Well, the allegations of lying and the 4 potential of removing property. 5 Q. And are you aware as to whether or not Officer 6 Waddell testified in court at any point while he was on 7 administrative leave? 8 A. I'm not aware of that. 9 Q. Is that something he would have coordinated 10 with yourself or someone else in the department, had he 11 been served with a subpoena while on administrative 12 leave? 13 A. Yeah. I would hope so. 14 Q. Well, he's at home, right? Someone would have 15 had to get it to him? 16 A. Yes. 17 Q. You mentioned that you had recommended 18 potential removal from S.W.A.T. position. What was the 19 purpose in that? 20 A. I felt, based on the situation at the time, 21 that his focus and concentration should be on dealing 22 with the issue at hand, not having extra assignments or 23 other burdens to worry about, and it was just another 24 extension of discipline to help show the point of the 25 situation. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1974 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 878 1 Q. Okay. And by dealing with the issue at hand, 2 you mean the serving out the discipline or just removal 3 from the assignment was extra discipline? 4 A. Correct. 5 Q. Okay. Did you conduct any other investigations 6 relative to any other employees as a result of their 7 supervision of Officer Waddell or their lack thereof? 8 A. I did. 9 Q. And who were those employees? 10 A. There was Sergeant Pfarr. 11 Q. Okay. 12 A. Sergeant Amoroso. 13 Q. Okay. Is that the extent of it? 14 A. Yes. 15 Q. And were those extensive investigations? 16 A. Tell me what you mean by extensive. 17 THE HEARING OFFICER: Fair enough. 18 BY MS. CASTILLO: 19 Q. Did those investigations involve utilizing the 20 same materials from the Waddell investigation or did 21 they involve new materials? 22 MR. PALMER: Objection. Relevance, privileged. 23 Getting into the contents of an IA, we need a Pitchess 24 motion. 25 THE HEARING OFFICER: Sustained. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1975 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 879 1 BY MS. CASTILLO: 2 Q. The -- without going into the content of the 3 investigations, my question right before the last one 4 that was sustained was if you had conducted 5 investigations regarding their lack of supervision. 6 Was it specific to the issue that you were 7 aware of regarding the CAT overtime and text message or 8 was it broader than that? 9 Without giving details, was it specific to what 10 you were already aware of? 11 MR. PALMER: Objection. Same objection. 12 THE HEARING OFFICER: Could you read back the 13 last two questions? 14 (Record read by the court reporter.) 15 THE HEARING OFFICER: What materials are we 16 talking about? 17 MS. CASTILLO: You know, I think that wasn't 18 the question that I had. I think we went back one more. 19 THE HEARING OFFICER: Let's take it from the 20 top and I'll hear your objection if we are in shaky 21 territory. Try it again. 22 BY MS. CASTILLO: 23 Q. You testified that you conducted investigations 24 regarding the lack of supervision of Officer Waddell and 25 that those two individuals that you named, Sergeant Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1976 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 880 1 Pfarr and Sergeant Amoroso, were the subjects of those 2 investigations. 3 My next question is, specifically, was it based 4 on the one investigation that you oversaw regarding the 5 CAT overtime and texting or did it go beyond that, 6 without getting into detail? 7 MR. PALMER: Objection. Relevance, 8 confidential, privileged, requires Pitchess. 9 THE HEARING OFFICER: Yeah. Let's have a 10 Pitchess motion on that if we're going to go there. 11 BY MS. CASTILLO: 12 Q. Okay. You said you had a recommendation and a 13 working document and you also provided that document to 14 human resources and you gave that recommendation to the 15 chief. 16 Do you know why your recommendation was not 17 included in the packet given to Officer Waddell? 18 A. Yes. 19 Q. Why? 20 A. The discussion with -- I had a discussion with 21 the chief about my reasoning for the recommendation 22 based on some prior knowledge of the case and explained 23 that as my reasoning and the chief explained to me that 24 that was the direction under a different chief at a 25 different time and his idea of what the discipline Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1977 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 881 1 should be was different. 2 Q. And this was before the Bentley investigation 3 was completed? 4 A. Correct. 5 Q. And before the notice of intent was ever 6 drafted? 7 A. I'm not sure on the timing. 8 Q. Okay. So, I guess, my last question is, would 9 you agree with me, then, that Chief Gesell did not like 10 your recommendation? 11 A. Yes. 12 MS. CASTILLO: Nothing further. 13 THE HEARING OFFICER: Cross-examination? 14 MR. PALMER: Yes. Thank you. 15 16 CROSS-EXAMINATION 17 BY MR. PALMER: 18 Q. Good afternoon, Captain. 19 A. Good afternoon. 20 Q. Do you recall the month and year that you were 21 promoted to captain? 22 A. January of 2013. 23 Q. Okay. And you conducted your initial review of 24 the -- we've been calling it the CAT shift, just for 25 some sort of phrase. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1978 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 882 1 THE HEARING OFFICER: We try not to say it very 2 quickly. 3 BY MR. PALMER: 4 Q. Yeah. That's what we've been calling it. 5 When did you conduct your initial review of the 6 documentation pertaining to that case? 7 A. It would have been around November of '13. 8 Q. So your timing grade as a captain by that point 9 would have been, sounds like, about ten months? 10 A. Correct. 11 Q. How many years did you spend as a lieutenant 12 before being promoted to captain? 13 A. Two years. 14 Q. And did you do internal affairs investigations 15 as a lieutenant? 16 A. I did. 17 Q. As a sergeant, as well? 18 A. A couple as a sergeant. 19 Q. And I think you said you did about 20 of them? 20 A. 10 to 20. 21 Q. At any point in your prior experience doing 22 internal affairs investigations, did you ever make any 23 disciplinary recommendations? 24 A. I did not. 25 Q. By the time that you reviewed the CAT shift Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1979 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 883 1 event in this case, had you been to any post-certified 2 management courses? 3 A. Yes. 4 Q. Which? 5 A. Um, post-management course, but that occurred 6 when I was a sergeant. 7 Q. Okay. Did you have a management certificate 8 from post? 9 A. Yes. 10 Q. At the time that you made this recommendation? 11 A. I believe so, yes. 12 Q. Had you gone to any management training 13 conference? 14 A. No. 15 Q. Prior to -- correct me if I'm wrong. I have 16 this assumption that you were seated at your computer, 17 drafting this executive recommendation document for the 18 chief. 19 A. Yes. 20 Q. Is that how it went? 21 A. Yes. 22 Q. And I assume you were drawing from your review 23 of the IA and making some analysis and conclusions and 24 then, ultimately, came up with your written 25 recommendation of 80 hours? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1980 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 884 1 A. Correct. 2 Q. Prior to actually putting fingers on the keys 3 of the keyboard, did you have any discussion with the 4 chief about what your thoughts were? 5 A. I'm sure there were casual conversations, but I 6 can't remember, specifically. 7 Q. Did you have any prior conversations before 8 putting -- remember, my point in time is before putting 9 your fingers on the keyboard, okay, and starting to 10 craft this document. 11 Do you recall having any specific conversation 12 with the chief, saying, you know, I'm thinking of these 13 things, chief, I'm thinking of a suspension, what do you 14 think? 15 A. At that time, no. 16 Q. How about your counterpart, Captain Staley? 17 Did you have any kind of open discussion with him prior 18 to putting your fingers on the keyboard? 19 A. I think, generally, because he was a greet 20 resource, he had done it in the past and had helped me 21 with formatting and the structure of how this document 22 comes together. 23 Q. At this point, do you recall discussing with 24 Captain Staley your thoughts and impressions about 80 25 hours suspension being the right place to go here? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1981 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 885 1 A. I don't recall, specifically. 2 Q. Don't recall that? 3 A. No. 4 Q. Do you remember him having a particular 5 reaction to that? 6 A. I don't recall. 7 Q. Don't remember him being shocked? 8 A. About my -- 9 Q. Yes, sir. 10 A. When you say my findings? 11 Q. Yes, sir. 12 A. I don't recall that. 13 Q. Okay. How did the chief react when you 14 conveyed your thoughts to him? 15 A. He was shocked. 16 Q. How did he express that? 17 A. Um, very matter of fact about his intentions 18 and explaining that he is the new chief. 19 Q. This prior event that you described, I don't 20 want to get into the details here, but let me ask you 21 just some broad questions about this prior event that 22 was in your head. 23 How many years ago had that occurred? 24 A. Five to six years ago. 25 Q. And, as you said, that was under a different Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1982 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 886 1 police chief regime? 2 A. Yes. 3 Q. And don't -- try not to answer this question 4 with anything but a yes or no. 5 Other than what you testified to about the 6 facts and circumstances of this prior event, did you 7 know anything else about it? 8 A. When you say, "anything else," I guess -- 9 Q. Any other details. 10 A. Yes. 11 Q. Okay. Had you reviewed the internal affairs 12 investigation about that prior event? 13 A. No. 14 Q. Okay. So did you come by the information that 15 you were using to use it as a factor, just stuff you'd 16 heard in the hallway? 17 A. I think once I became a captain, I became more 18 aware of some of the internal things that have happened 19 in the department. So I, certainly, had conversations 20 with Captain Staley about this particular event. 21 Q. Did you -- when you sat down and put your 22 fingers to the keys on the keyboard and started crafting 23 this document, did you have an understanding that this 24 was just your recommendation? 25 A. Yes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1983 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 887 1 Q. Did you understand that persons above your pay 2 grade might disagree with your recommendation? 3 A. Absolutely. 4 Q. And did you understand the persons above your 5 pay grade may not necessarily follow your 6 recommendation? 7 A. Yes. 8 Q. And who would be the ultimate decision-maker 9 here? 10 A. The chief of police. 11 Q. Okay. At this point in time right now, you 12 have how much time in grade as a police captain? 13 A. Two and a half years. 14 Q. Have you gone to more training classes? 15 A. Yes. 16 Q. Have you gone to more conferences? 17 A. Yes. 18 Q. Have you conducted more executive -- strike 19 that. Let me go from the outside in. 20 Have you reviewed more internal affairs 21 administrative investigations since the CAT shift event? 22 A. I have not. 23 Q. You have not. Okay. 24 Was the CAT shift thing involving Mr. Waddell 25 that you reviewed, was that the first one that you Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1984 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 888 1 reviewed in your role as a captain, making a 2 recommendation? 3 A. Yes. 4 Q. Okay. Haven't done that since? 5 A. Correct. 6 Q. But you've gone to more classes and had more 7 time and grade? 8 A. Correct. 9 Q. Okay. Looking back on it now, how would you 10 describe your initial recommendation to make an 80-hour 11 suspension? 12 A. Based on the information that I have now -- 13 Q. Yes, sir. 14 A. -- of all the events that have taken place? 15 Q. Yes, sir. 16 A. Yes, I would recommend termination. 17 MR. PALMER: No further questions. 18 THE HEARING OFFICER: Redirect? 19 MS. CASTILLO: Yes. 20 21 REDIRECT EXAMINATION 22 BY MS. CASTILLO: 23 Q. Okay. So you indicated that when you went in 24 and had this conversation with Chief Gesell -- Gesell? 25 A. Gesell. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1985 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 889 1 Q. That he said that he was the new chief. What 2 did he mean by that, or what was the conversation? 3 A. Well, he did express that, under the former 4 chief's decision-making on the prior event, that that 5 was not his inclination to allow what had transpired in 6 this investigation happen within the department which he 7 ran. 8 Q. Okay. And your testimony was that that was an 9 individual who had been alleged to have lied in a police 10 report? 11 A. Yes. 12 Q. Okay. And -- okay. Now, at the time that you 13 were speaking to the chief, this is in advance of March 14 3rd, 2014, which is the date on Department's Exhibit 7, 15 correct? 16 A. Oh, the one I just looked at? 17 Q. Yes. 18 A. Yes, it would have been before March. 19 Q. Okay. And the indication that you got from the 20 chief was -- and I'm just paraphrasing -- that he did 21 not believe that a suspension was going to be sufficient 22 in this case, correct? 23 A. Correct. 24 Q. Okay. And at this time, there was already 25 another investigation ongoing, correct? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1986 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 890 1 A. Yes. 2 Q. Okay. And the way that this department is set 3 up, the chief is the Skelly officer, correct? 4 A. Yes. 5 Q. And the chief is the individual who reviews all 6 the materials. 7 Other than what is contained in these -- let's 8 see -- 14 pages, was there any additional materials that 9 you did not -- or that came as part of Department's 10 Exhibit 7 that you didn't have in the time that you were 11 making your original recommendation? 12 A. I'm sorry. I think I had a hard time 13 following. 14 Q. It was a bad question. 15 Was there additional investigation that took 16 place after you were, I guess, unassigned, that you're 17 aware of? 18 THE HEARING OFFICER: If you know. 19 THE WITNESS: I don't -- I'm assuming there 20 was, but I don't know, specifically. 21 BY MS. CASTILLO: 22 Q. And why would you assume that? 23 A. Because it was still an ongoing investigation 24 and it was coupled with the -- with the new allegations 25 that came up with the Bentley, things started to -- Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1987 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 891 1 trying to figure out what happened where and when, I 2 think, probably included some more investigation, but I 3 don't -- 4 Q. Okay. So as you sit here today, do you know if 5 there's more investigation that took place on the text 6 messaging, arriving late to work case? 7 A. I don't know, specifically. 8 Q. Okay. When you reviewed everything, was there 9 the interview with Sergeant Pfarr? 10 A. Yes. 11 Q. Was there the interview with Lieutenant Smith? 12 A. Yes. 13 Q. And Detective Stahnke? 14 A. Everything that was presented to me in Exhibit 15 8, those were presented to me as investigative material. 16 Q. Okay. Then you have the meeting with the 17 chief -- 18 A. Can I clarify? I apologize. There was a 19 memo -- I can't answer if there was an additional 20 investigation done after the initial report was given to 21 me by Lieutenant Bledsoe. So I do not know if there was 22 additional investigation done after that. 23 Q. When did you receive the initial from 24 Lieutenant Bledsoe? 25 A. I don't know the date, but it would have been Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1988 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 892 1 just prior to me making the recommendation. 2 Q. And your recommendation was made in January? 3 A. December. Late December. 4 Q. At the time that you made your recommendation, 5 was Officer Waddell -- or had you already had Sergeant 6 Pfarr write the memo regarding the Bentley? 7 A. I believe I had Sergeant Pfarr write the memo 8 immediately after he talked to me. So it would have 9 been within a day or two of my initial conversation with 10 him, which was around -- prior to Christmas. 11 Q. Okay. So did you -- you did not take into 12 consideration when you made your recommendation as to 13 this investigation what was going on in the Bentley 14 investigation; is that fair? 15 A. Correct. Mine was just on the CAT 16 investigation. 17 Q. Okay. And, again, the reason you would have 18 sent your captain review to human resources would have 19 been for what reason? 20 A. I felt that consulting with the -- Monica 21 Irons, as the director of human resources, I've worked 22 with her in the past with employee personnel issues and 23 thought she would be a good resource to look at my 24 material, and, at the time, I wasn't -- I just needed 25 some direction, another set of eyes. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1989 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 893 1 Q. Okay. So were you getting direction as to 2 formatting, or what were you getting direction as to? 3 A. I think content. 4 Q. And did you receive direction from her? 5 A. I don't recall. 6 MS. CASTILLO: What number are we at? 7 THE HEARING OFFICER: Are you looking for 8 exhibits? 9 MS. CASTILLO: Yes. 10 THE HEARING OFFICER: I think you're up to M, 11 as in Mary. No. O, I think, is the next one? 12 MR. PALMER: Uh-huh. 13 THE HEARING OFFICER: Is that your 14 recollection? 15 MR. PALMER: Yep. 16 THE HEARING OFFICER: Yeah. We're at O. Okay. 17 We're marking, as O, a very short one-page e-mail from 18 Keith Storton to Monica Irons. 19 BY MS. CASTILLO: 20 Q. Can you look at this, what has now been marked 21 as Exhibit O? Do you recognize this? 22 A. I do. 23 Q. Okay. What is this document? 24 A. This is an e-mail to Monica Irons. I sent my 25 first draft of the IA to her attention to review. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1990 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 894 1 Q. And did you receive a response from her? 2 A. I don't recall. 3 THE HEARING OFFICER: Is she the HR director? 4 I'm sorry. 5 THE WITNESS: Yes. 6 BY MS. CASTILLO: 7 Q. And did you send multiple drafts to her? 8 A. I don't think so. I think it was just the one. 9 Q. So your meeting with the chief would have been 10 after January 15th, 2014; is that fair to say? 11 A. That is fair to say, yes. 12 Q. When you had, somewhat, finalized your 13 recommendation; is that correct? 14 A. Yes. 15 Q. Okay. Did you provide the chief with just a 16 working document or did you provide him with your 17 recommendation? 18 A. I think, at the time, it was my understanding 19 it was a working document because I wasn't clear on -- I 20 struggled with the recommendation as to what the 21 discipline should be and that's one reason why I reached 22 out to Ms. Irons. 23 Q. Okay. But at the time you made the 24 recommendation to the Skelly officer, were you looking 25 for direction from the Skelly officer as to what your Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1991 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 895 1 recommendation should be? 2 A. Um, I expected some discussion about the 3 recommendation. I don't think I went in thinking, in my 4 mind, that this is absolutely what the discipline was 5 going to be, but it is still what I wrote and 6 recommended. 7 Q. Okay. So you provided the chief with a 8 recommendation, whether or not he was going to accept it 9 or not, of 80 hours and of the 80 hours suspension and 10 removal from S.W.A.T.; is that correct? 11 A. Correct. 12 Q. And do you know what happened to that document 13 when you provided it to the chief? 14 A. No, I don't. 15 Q. Do you know -- can you describe what method you 16 provided that document to the chief? 17 A. Um, it would have been in the case file. 18 Q. So when you went in to have this discussion 19 with the chief, you would have gone in with the 20 investigation case file and materials upon which you 21 based your recommendation and your recommendation? 22 A. I believe so, yes. 23 MS. CASTILLO: Okay. Can I have Appellant's O 24 admitted? 25 THE HEARING OFFICER: Any objection to O? Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1992 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 896 1 MR. PALMER: No. 2 THE HEARING OFFICER: Without objection, O is 3 admitted. 4 BY MS. CASTILLO: 5 Q. The -- on cross-examination, the -- one of the 6 last statements that you made was that, now, knowing 7 what you know, you would have recommended termination. 8 Is that on this particular investigation or the 9 entirety of the investigation of Officer Waddell? 10 A. The entirety. 11 Q. Your testimony on direct examination was that 12 you had not reviewed any of the Bentley investigation; 13 is that correct? 14 A. Um, no, but I have knowledge of it. I haven't 15 reviewed specifics, other than information that was 16 provided to me through Sergeant Pfarr and discussions 17 with Captain Staley. 18 Q. Okay. So now that recommendation would have 19 been the initial report that Sergeant Pfarr made to you; 20 is that right? 21 A. I'm sorry? 22 Q. When did you talk to Sergeant Pfarr, I guess, 23 is my first question? 24 A. It would have been in December, when he first 25 approached me, of 2013. Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1993 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 897 1 Q. Okay. So the initial report, right? Yes? 2 A. The -- 3 Q. Just the initial report by Sergeant Pfarr of 4 his concerns, correct? 5 A. His discussion with me? 6 Q. Yes. 7 A. Yes, I had knowledge of the incident through 8 discussions with him. 9 Q. And that's where you said write a memo, please? 10 A. Yes. 11 Q. Okay. Did you interview him or did you just 12 let him speak to you and then ask for a memo to be 13 generated? 14 A. No. He, actually, approached me and started 15 providing me with the information, which triggered my 16 thought that this needs to be looked into further. 17 Q. Okay. And -- but you had not spoken to Officer 18 Waddell about this, correct? 19 A. I have not. 20 Q. And you have not reviewed his statements, 21 correct? 22 A. Um, no. I can't remember, specifically, 23 reviewing documents pertaining to that investigation, 24 other than things that have been -- there have been some 25 things that have come across where I may have been privy Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1994 ARBITRATION HEARING, JULY 23, 2015, VOL. 4 7/23/2015 McDANIEL REPORTING Page: 898 1 to some of the documentation, but not the complete 2 package. 3 Q. Okay. 4 A. It's not like I sat down and read the complete 5 package cover to cover. 6 Q. Right. Okay. And your initial draft, though, 7 of the first version that went to the chief was January 8 15, 2014, after you had had that conversation with 9 Sergeant Pfarr, correct? 10 A. Yes. 11 Q. Okay. And then you've had subsequent 12 conversations with Captain Staley, right? 13 A. Correct. 14 Q. And that is what you are basing this 15 recommendation on now? 16 A. No. 17 Q. Okay. Then I'm confused then. What did you 18 just -- what is it now? 19 A. Well, the incident that I had familiarity with 20 in that particular case where the officer had what we 21 had discussed, I felt because there was falsification at 22 that time, that that person should have been released 23 from duty, but I was basing my decision on a history of 24 a decision that had been made in the past, and so I 25 thought that was the standard because this was the first Waddell v. San Luis Obispo, 16CV-0491 Administrative Record Page 1995