Schaller, Jack - Vol (Investigation-11/15/13)

8/12/2019 Schaller, Jack - Vol (Investigation-11/15/13)

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Transcript of the Testimony of Jack Schaller

Date:November 15, 2013Volume:I

Case: In Re: Joplin Critical Investigation

Printed On: November 30, 2013

Holliday Reporting Service, Inc.Phone: 417-358-4078

Fax: 417-451-1114Email:[email protected]

Internet:


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Jack Schaller In Re: Joplin Critical Investigation

417-358-4078Holliday Reporting Service, Inc.

Page 1

IN RE: JOPLIN CRITICAL INVESTIGATION

SWORN STATEMENT OF

JACK SCHALLER

Taken on Friday, November 15, 2013, from 2:03 p.m. to 3:38

p.m., at the law offices of Juddson H. McPherson, LLC, 626

S. Byers, in the City of Joplin, County of Jasper, State of

Missouri, before

SHARON K. ROGERS, C.C.R.650,

a Certified Court Reporter and a Notary Public within and

for the County of Jasper, and State of Missouri.


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Page 2

APPEARANCES

MR. THOMAS E. LORAINE

Loraine & Associates, LLC

4075 Osage Beach Pkwy., Suite 300

Osage Beach, MO 65065

[email protected]


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Page 3

S T I P U L A T I O N

IT IS HEREBY STIPULATED AND AGREED that this Sworn

Statement may be taken by steno-mask type recording by

SHARON K. ROGERS, a Certified Court Reporter, and

afterwards reduced into typewriting.

It is further stipulated that the signature of the

witness is hereby waived, and that said Sworn Statement of

said witness shall be of the same force and effect as

though said witness had read and signed Sworn Statement.


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Page 4

I N D E X

Page/Line

DIRECT EXAMINATION BY MR. LORAINE . . . 5-4

E X H I B I T S

Exhibit #28 . . . . . . . 33-11

Interview for jobsExhibit #29 . . . . . . . 45-5

May 2013 memoExhibit #30 . . . . . . . 48-12

5/30/13 letter

Exhibit #31 . . . . . . . 68-12 Letter to Mark Rohr

Exhibit #32 . . . . . . . 68-17

Letter to Jack Schaller

Exhibit #33 . . . . . . . 75-24

Emails

Exhibit #34 . . . . . . . 76-22

Email

Note: Exhibits in separate binder

(sic) - typed as spoken

(ph.) - phonetic


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Page 5

1 JACK SCHALLER

2 Having been first duly sworn and examined,

3 testified as follows:

4 DIRECT EXAMINATION BY MR. LORAINE:

5 Q. Mr. Schaller, is that two L's?

6 A. Yes.

7 Q. S-C-H-A-L-L-E-R?

8 A. E-R, no T.

9 Q. Thank you. Mr. Schaller, you're under oath.

10 I appreciate you've taken that, I don't think

11 I can make you take that, but that's the way

12 this investigation has gone so it helps if we

13 stay consistent with everything. If you were

14 a City employee I know what I could, but I

15 can't do that to you because you're private.

16 So you're here voluntarily and I appreciate

17 it. We're trying to straighten some things

18 out. My name as I told you is Tom Loraine

19 and I'm a lawyer, I practice mainly out of

20 Osage Beach, but I travel around the state of

21 Missouri for these kinds of things when asked

22 to, and these are called critical

23 investigations and you do them when some city

24 asks you to come down and do them because

25 they can't straighten their own mess out.


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Page 6

1 And that's what I'm here for. I'm supposed

2 to talk about three primary areas. One is

3 Woolston, Mr. Woolston's dealing with real

4 estate and being on the Council. The second

5 one is Mr. Scearce's alleged background with

6 gambling. And the third is an internal

7 matter about somebody allegedly - how a note

8 got from the City Manager's desk to Bill

9 Scearce, and any collateral matters that

10 arise out of any of those. One of the

11 collateral matters that have arisen is the

12 management style of City Manager Rohr. It's

13 been described as my way or the highway, it's

14 been described as hostile, intense,

15 hollering, doors slamming, that kind of

16 thing, threatening of employees that work for

17 the City, among other things. I think that

18 you might be able to shed some light on this

19 last issue. As I understand it you used to

20 work for the City?

21 A. Yes, I was the Assistant Public Works

22 Director.

23 Q. Who was the Works Director?

24 A. David Hertzberg.

25 Q. Have you talked with him?


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Page 7

1 A. No.

2 Q. I mean about this.

3 A. No.

4 Q. Well, he just came in and visited me a little

5 bit before so I'm anticipating some things

6 that you may or may not say. I would like

7 you to keep this internal, behind doors. I

8 can't make you do that because like I said

9 you're no longer a City employee, but I would

10 ask your cooperation because it is a very

11 sensitive probe.

12 A. Certainly, and I have stuff at stake, too.

13 My name gets drug into it my company doesn't

14 get work for the City.

15 Q. And I am concerned about that so I was

16 somewhat hesitant to ask you to come over for

17 that reason, but some of the guys suggested I

18 should talk to you anyway so I'm going to do

19 that. And I guess if there's any retaliation

20 or anything that does occur I'm going to give

21 you one of my cards and I would like you to

22 at least let me know that.

23 A. Sure. And I thank you for that.

24 Q. I was concerned about that myself because

25 anticipating what you may or may not say,


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Page 8

1 only from what other people have told me I

2 think that could be a possibility. Do you

3 agree?

4 A. I do agree. And from my perspective I don't

5 know how much of this is going to wind up

6 being a matter of public record.

7 Q. Yeah, from your perspective some of it could

8 be, some of it could be. I want you to tell

9 the truth obviously. If you don't want to

10 talk about something I would just as soon you

11 say I don't want to talk about that issue and

12 we'll respect you. I can't make you talk is

13 what I'm telling you, I can only make City

14 employees talk. I can't even make Councilmen

15 talk.

16 A. I want to do what's right and that's my goal

17 here and that's what I hope to do. I don't

18 want to sacrifice my company for the - I mean

19 they were nice enough to give me a job.

20 Q. Right, I'm aware of that. First of all

21 identify yourself. How long have you been in

22 private practice?

23 A. I left the City of Joplin the second week of

24 September of this year.

25 Q. 2013?


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Page 9

1 A. Yes, sir.

2 Q. So how many years did you work under City

3 Manager Rohr?

4 A. I went to work for the City of Joplin

5 February 1st of 2008.

6 Q. And as I understand it you are a Professional

7 Engineer?

8 A. That's correct.

9 Q. And you have a license, a college degree and

10 a license and you've been registered with the

11 State of Missouri as a P.E.?

12 A. That is correct.

13 Q. You're presently doing engineering consulting

14 work for the City?

15 A. Yes, some. We have a couple of contracts

16 with the City.

17 Q. And who gives those contracts out from the

18 City?

19 A. Basically it's Council approval. The City

20 staff writes up the green sheets. You know,

21 we give them the contracts, they write up the

22 green sheets, then they go through legal,

23 Brian head, finance, Leslie Haase, and City

24 Manager, and then they go to Council during

25 the Council presentation.


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1 Q. So those three people that you mentioned that

2 would be Mr. Rohr, Mr. Head, and the

3 Financial Manager, those positions would be

4 somewhat critical to your employment with the

5 City?


7 Q. I want to ask you about why you're no longer

8 with the City.

9 A. Okay. First of all I'd like to state that I

10 loved my job with the City. I was really

11 good at it. And I felt I kind of had to

12 leave because I had no other choice. I

13 didn't leave because I wanted to leave, I

14 left because I felt I had to leave. The

15 circumstances that led up to that to try to

16 cut out as much of the back story as possible

17 started when we interviewed an employee for

18 the Operations Manager named Cody Cowan.

19 There was several applicants that had put in

20 for this Operations Manager. The Operations

21 Manager that we had at the time, Tim Nyander,

22 left the City of Joplin partially because of

23 his distaste with the way things were being

24 run.

25 Q. With who?


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1 A. Mark Rohr had asked him to do some things

2 that he didn't feel were right to do.

3 Q. Was it ethical problems or legal problems?

4 A. No, it was basically the City Manager had

5 went to I believe it was Reeves Tire to get a

6 tire fixed during the tornado and because

7 they didn't just move everybody else out of

8 the line and put him first and said, listen,

9 you're going to have to wait, it's going to

10 be a couple of hours before we get to you

11 with all the other flat tires and stuff we've

12 got, he had instructed Tim Nyander, listen,

13 we don't do anymore business with them

14 because, by god, I run the City and I'm the

15 most important thing going right now, they

16 need to move everything else out of the way

17 and take me first. And Tim didn't feel

18 comfortable about telling a company that we

19 do business with that we're not going to do

20 business with them because they did them

21 first come, first serve. So anyway he found

22 him a job in Arkansas and we have a --

23 Q. Tim told you this personally?

24 A. Yes.

25 Q. And you know that to be true?


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1 A. Yes.

2 Q. Was this the department that you were in?

3 Did Tim actually work for you?

4 A. Yes, the Public Works Department hierarchy

5 was Public Works Director David Hertzberg,

6 and then myself was the Assistant Public

7 Works Director, then Tim Nyander was

8 Operations Manager, and Troy Bolander was

9 planning the community development, so I was

10 basically in charge of the Public Works

11 Department whenever David wasn't there and I

12 was over Engineering so the three of us kind

13 of worked together, but in the hierarchy I

14 was their boss even though the three of us,

15 Tim, Troy, and I, basically work on the same

16 level.

17 Q. You were really a supervisor for Tim Nyander?

18 A. Yes.

19 Q. Can you spell his name for the record?

20 A. N-Y-A-N-D-E-R.

21 Q. And as a supervisor this is what Nyander told

22 you he was being requested to do was stop

23 buying the tires because they didn't cow down

24 to Manager Rohr?



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1 Q. So did you make any kind of record on that?

2 A. I did not. It was just in conversation, one

3 of our meetings.

4 Q. Did you take that up to your director?

5 A. He was at the meeting, also.

6 Q. That was the gentleman --

7 A. David Hertzberg.

8 Q. Now if I understand it Mr. Hertzberg has been

9 severely demoted, he lost some 30 thousand

10 bucks or something a year?


12 Q. Do you know what the facts were surrounding

13 that?

14 A. Yes.

15 Q. Can you tell me?

16 A. The facts were that David Hertzberg is a

17 super, super nice guy and was basically said

18 that he mismanaged the Building Department to

19 a tune of $150,000.00 of revenue that wasn't

20 billed. And the fact of the matter is that

21 it was because of what we were asked to do

22 for the code enforcement piece of that that I

23 was involved with with Sam Anslem and the

24 City Manager Rohr to try to get code

25 enforcement more technologically advanced


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1 that we actually got training for our

2 Navaline system, which is the system that

3 handles all the finances plus the code

4 enforcement piece, plus the building

5 Department piece. And part of that training

6 they came down, went through all of the way

7 that we did it. They kind of sat next to it

8 and seen how we done things and showed where

9 we could improve things, how we could

10 streamline the process, and in the process of

11 doing that they found out that we didn't

12 input - well, we input all of the building

13 permits and the fees for the prime contractor

14 and subcontractor, and the prime contractors

15 go down basically to the Finance Department

16 to be billed. The subcontractor piece takes

17 another step. Well, nobody ever knew that we

18 had to do that other step so we've learned

19 that we have to do this other step so that

20 stuff can wind up being billed.

21 Q. And that's on the form?

22 A. Yes, on the Navaline deal, yeah, there's

23 another step that had to be done on the

24 computer.

25 Q. And nobody advised you of that?


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1 A. No, we'd never had training. We were never

2 allowed to have training.

3 Q. How many people were ever trained on that

4 Navaline?

5 A. On the Navaline?

6 Q. Yeah.

7 A. None. In the six years that I was there,

8 five and a half, six years, we never had

9 training on that line.

10 Q. Whose idea was it to purchase Navaline?

11 A. I don't know for sure, but I believe it was

12 the Finance Director, Leslie Jones at the

13 time, it's now Leslie Haase.

14 Q. Anyway having purchased that nobody gave you

15 training, your department or division,

16 department would be the right term did not

17 receive training on that?

18 A. That is true.

19 Q. And as a consequence some subcontractor

20 somehow didn't show up on the form and did

21 not come to the billing records?

22 A. It was input, but in order for it to be

23 billed there was an additional step in

24 addition to what was on the prime contractor

25 and that step we never knew to do so it was


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1 never done.

2 Q. So nobody in the department knew how to do

3 it?

4 A. No, and so --

5 Q. Who was head of that division?

6 A. The division would have been Steve Cope.

7 Q. And he got fired? Or was asked to leave?

8 A. Yes.

9 Q. And can you tell me the circumstances

10 surrounding that?

11 A. Basically they had told Steve that there was

12 this $150,000.00 of missing revenue and they

13 gave him, I'm not going to be a hundred

14 percent certain on this, but it was between

15 one to three days to come up and rectify all

16 of it. And he went through it and got it

17 down at the time that he left to about

18 $19,000.00 that wasn't accounted for at the

19 time. Steve was the one that took it to

20 Leslie Haase to say, hey, we're not billing

21 for these subcontractors, we can go ahead and

22 bill for it. Well, that's how the ball got to

23 rolling. She went to the City Manager and

24 then the City Manager, oh, we've got all this

25 money that's out here. I know for a fact


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1 there was $50,000.00 of that that wasn't even

2 - had no relevance at all because it was

3 Steve put in a $50,000.00 bill as a test and

4 called it a test so he could see how the

5 process worked.

6 Q. That was out of that $150,000.00?


8 Q. Wow. Was that all made known to the City

9 Manager?

10 A. I don't know if it was made known. It was

11 made known to myself while they were doing

12 the investigation.

13 Q. Who did the investigation?

14 A. The Police Department.

15 Q. And what would they know about this

16 particular form or entry?

17 A. Nothing.

18 Q. So that was done because the Police

19 Department is also under the City Manager?

20 A. That is correct. And in the time frame that

21 you look at how it was done was they demoted

22 David, basically fired Steve, and then

23 decided to go and do the investigation.

24 Q. And what did the investigation reveal?

25 A. I don't know the final results of it, but


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1 when I had left I talked to the officer that

2 was working on the investigation and he

3 indicated the only thing he could come up

4 with was that wasn't fully resolved that

5 couldn't be accounted for was around $100.00.

6 Q. And who was that officer?

7 A. I don't remember his name. I'd never seen

8 him before at the Police Department. I'm not

9 saying that was what wasn't billed, but that

10 was just when they ran through all the

11 numbers they weren't able to basically say

12 this is what wasn't accounted for. And that

13 was over the fourteen year period of which

14 Steve was only there for seven years of that.

15 Q. How many of those years were you there?

16 A. Six, five and a half.

17 Q. And Steve worked for you?

18 A. Yes.

19 Q. So you would have been his supervisor, once

20 removed?

21 A. Yes, that's correct.

22 Q. It was your job to know what he endured

23 during this period of time and I take it you

24 did find out?

25 A. Yes.


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1 Q. So as a result you lost - how many years of

2 experience did you lose as a result of this

3 from the Engineering Department?

4 A. Well, from the department wise by losing

5 David that had 30 some years of experience,

6 Tim had 30 some years of experience, and

7 Steve had 7 years with the City and 20 years

8 in the building trades before that.

9 Q. How about you?

10 A. Well, engineering wise I had 22 years of

11 experience.

12 Q. So basically the City lost a lot of people --

13 A. A little over 100 years of experience and

14 institutional knowledge.

15 Q. -- and that was a result of the City

16 Manager's whims or how would I put that?

17 A. It was the result of the City Manager wanting

18 to find a scapegoat for this monies that

19 weren't accounted for at the time. And

20 realize you're talking about after the

21 tornado wherein a six month period Steve Cope

22 had to take in well over 4,000 building

23 permits and we weren't allowed to increase

24 any of our staff to be able to do that so

25 you've got a one man show, you know, with his


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1 help with no increase. We went from a couple

2 million dollars in building a year to over

3 100 million dollars a year and no increase in

4 staff. So with the phenomenal increase in

5 workload you're going to have some errors and

6 issues and mistakes that will be made just

7 because of the extreme amount of work that

8 you're having to do in the six and seven days

9 a week working on them.

10 Q. Well, it sounds like a terrible abuse of

11 justice. You would agree with that?

12 A. I would certainly agree with that. The only

13 help that we were allotted was what they

14 called WIB workers, which is the Workforce

15 Investment Board, which are basically people

16 that were displaced from their jobs with the

17 tornado and would come in there. So you

18 might have somebody that was a check-out

19 person at a grocery store that would come in

20 so they're limited in capacity with being to

21 help you with doing building permits and

22 stuff like that. They were able to do some

23 of the secretarial stuff, but they weren't

24 able to actually do any of the building

25 permitting process. We tried to streamline


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1 it to make it as quick as possible because if

2 you have a line of people twenty deep waiting

3 to get building permits it gets irate, then

4 it gets down to the City Manager that he's

5 chewing you out because why do you have a

6 line of people up there. Get them run

7 through.

8 Q. How is the City Manager's style? Was it --

9 A. He's a dictator and he is a tyrant is

10 probably the way that I would say it.

11 Q. A lot of City employees fear him?

12 A. I would say every City employee fears him.

13 Q. Either physically or by certainly loss of

14 their job?

15 A. By the loss of their jobs, and there's

16 probably a few that may fear him physically.

17 Q. An imposing man?

18 A. Yes.

19 Q. Does he use voice inflection to express

20 himself?

21 A. Yes. Yes, he does. I can say safely that I

22 know of at least ten upper level supervisors

23 who have either been witness or been on the

24 receiving end of some of his tirades.

25 Q. Would that be actually verbal abuse in your


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1 opinion?

2 A. Yes.

3 Q. Way beyond what he ought to be doing?

4 A. Yeah, I've had him chew me up one side and

5 down the other and I've seen him do it to

6 Brian Head, I've seen him do it to Chris

7 Cotten, to Leslie Haase, David Hertzberg,

8 Patrick Tuttle. I witnessed him and his wife

9 in an unbelievable argument when we were down

10 in the basement yelling and screaming at each

11 other that I just walked out the side door.

12 And you probably don't know how the city

13 basement is set up, but there was a door on

14 the south side and a door on the north side

15 and he sat over in the southeast corner and I

16 sat in the northwest corner after the

17 tornado. And I was the only one down there

18 at the time when his wife come in and they

19 were yelling and I snuck out the back door

20 and was told by him after that that I needed

21 to next time stay in there so that she

22 wouldn't get as mad. And I said I don't

23 think that I want to be involved with any of

24 that.

25 Q. So actually the argument between them was


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1 quite forceful?

2 A. Yes.

3 Q. And you're talking about screaming and

4 yelling?

5 A. Yes, grabbing, shaking.

6 Q. Who was grabbing and shaking?

7 A. He grabbed her.

8 Q. You actually witnessed that?

9 A. Yes, that's when I walked out.

10 Q. How big of a person is she?

11 A. She's probably 5'6", 130, 125.

12 Q. How would you describe him?

13 A. 6'3", 6'4", 230, 240.

14 Q. And the method that he was hollering at his

15 wife that day that you witnessed, was that

16 the same kind of method of dealing with his

17 subordinates that you witnessed, also?

18 A. Yes.

19 Q. Have you ever told - well, Brian Head

20 received it, you said?

21 A. Yes.

22 Q. So has anybody ever reported him as creating

23 a hostile work environment or anything?

24 A. Not that I'm aware of. I will tell you,

25 though, that after my two days suspension


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1 that I got for this Cody Cowan, which we can

2 go into later which is how this started, I

3 went and visited an attorney to see what my

4 rights were and basically found - because I

5 knew what he was doing was harassing, you

6 know, he was very, you know, vocal and very

7 demanding with what he wanted and it was a

8 very uncomfortable work environment,

9 harassing.

10 Q. Intimidating?

11 A. Yes, and so I went and seen what my rights

12 were and of course then found out I'm an

13 at-will employee so I could be terminated at

14 any time without any cause and so basically

15 suck it up and take it or be willing to go

16 down a long road. And if you've looked into

17 any of Mark's past, which most of us City

18 employees at one time or another have done,

19 you've seen that he was City Manager at Punta

20 Gorda he done pretty well the same thing. He

21 wanted to go in there and shake up the Police

22 Department and the Public Works Department

23 and redo it all, then when he got ready to

24 leave he wrote a nice little article in the

25 paper that mirrors a lot of what happened


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1 here where he basically told the Council they

2 were terrible and that he was doing what

3 needed to be done and it's the same thing

4 he's doing right now in my opinion with the

5 Public Works Department. We were the most

6 successful removal operation in the history

7 of the United States after the tornado and so

8 as a reward basically he shakes up the whole

9 department and decides he wants to reorganize

10 it to make it more efficient. More efficient

11 than the best ever?

12 Q. I understand that Mr. Cope is out of the

13 area. Do you know that?

14 A. Yes, he works for JCDM and I think the job

15 he's on right now is up around Michigan. But

16 there's a lot of times he comes in on Friday.

17 Q. Does he still live in the community?

18 A. Yes, he still lives here.

19 Q. Do you ever talk to him?

20 A. I communicate with him.

21 Q. You've got my card there. I don't want you

22 to talk about what we testify to, but I would

23 like to talk to him, and I would be available

24 either by phone or - I mean I'd just have to

25 have my court reporter. I could take a phone


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1 call from him, but I'd swear him in and

2 everything. But if you wouldn't mind I'm

3 trying to get to the reason why we have this

4 division on the Council. Do you think Mark's

5 style leads to that kind of division?

6 A. Yes, wholeheartedly.

7 Q. And why is that?

8 A. Well, Mark, instead of the way Council/City

9 Manager form of government which is supposed

10 to work which is the Council sets the policy

11 and then the City Manager follows, makes sure

12 that policy gets enacted and the visions and

13 the direction, Mark inherently wants to make

14 it his vision and his policy and so even like

15 with his smart project he went and got a

16 group of all of the movers and shakers and

17 brought them into Council and just sprung it

18 on Council one night at a Council meeting and

19 asked for their approval. Kind of put them

20 in a bind where they had to vote yes because

21 all of the movers and shakers were out there

22 in favor of this proposal. Instead of

23 knowing about the proposal and what was going

24 on ahead of time, informing them, Mark keeps

25 everything close to his chest and then kind


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1 of does what I call the magic trick, just,

2 you know, ta-da, here it is and likes to do

3 that to pat himself on the back and then

4 basically to put the Council in a position

5 where they have to vote for him, or his

6 ideas.

7 Q. Does he favor certain people on the Council?

8 A. Yes.

9 Q. How do you know that?

10 A. It's obvious. I mean I sat down in the

11 basement with him for nine months after the

12 tornado. There was myself, Mark Morris,

13 Leslie Haase, Jones at the time, and Dan

14 Pekarek, which would be the Health

15 Department, Finance Department, I.T., and

16 then the Public Works Department. If you

17 don't know the whole story after the tornado

18 my boss, David Hertzberg, the Public Works

19 Director, his house was totally destroyed and

20 his wife asked him for a divorce and so he

21 kind of mentally and physically checked out

22 there and I was the City's representative for

23 all of the clean-up. When it came to dealing

24 with FEMA, the Corps of Engineers, all of the

25 state agencies I was the one that was the


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1 City's representative. Mark appointed me as

2 that position. After we moved out of the

3 emergency operations center we moved into the

4 emergency operations center from the Public

5 Safety building over down to the basement of

6 City Hall and so it was just a core group of

7 us so there was a lot of times that the rest

8 of those were out doing what they needed to

9 do. Leslie had to go upstairs to do her

10 finance, Dan was out, you know, so there was

11 a lot of time down there where it was just

12 myself and Mark.

13 Q. And you witnessed him dealing with certain

14 members of Council?

15 A. Yes, and I've had conversations with him

16 where he has basically said he had

17 information on Bill that could bury him.

18 Then he's made derogatory --

19 Q. Bill Scearce?

20 A. Yes, Bill Scearce. And he's made derogatory

21 comments about all of the old codgers,

22 speaking of Jack Golden, Benji, Bill, Morris

23 Glaze. The ones of course that he liked were

24 the ones that, you know, Mike Woolston which

25 I understand after the tornado him and Mark


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1 had - there's a kinship that come with that

2 tornado. They were both in the position that

3 they were in at the time that happened. Gary

4 Shaw who is Mark's personal advisor, you

5 know, and feels an ownership to Mark. And

6 Mike Seibert. And I don't know the

7 relationship with why Mike Seibert is such a

8 big Mark Rohr disciple, but he is. But those

9 three are the ones that are for Mark and the

10 two wild cards always at the time were

11 Melodee Colbert-Kean and Trisha Raney.

12 Q. Let me ask you a question. There's been some

13 statements about this alleged $150,000.00,

14 which I think you said you feel comfortable

15 that it really was a $100.00 discrepancy, is

16 that essentially correct?

17 A. That is what I was told by the investigator

18 that's where he was - that he could see that

19 was different.

20 Q. Was there ever a retraction in the newspaper

21 about this $150,000.00?

22 A. No, actually a few weeks ago Mark was asked

23 about it again and said he was just waiting

24 the report back from the Police Department.

25 And realize I was given this information


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1 before I left so that's been the guy was

2 finishing up at least his point on the Public

3 Works end of it up on the fourth floor as I

4 was leaving around the first of September.

5 Q. That would be under the Chief --

6 A. Police Chief, yes.

7 Q. How does the Police Chief fit into this

8 pattern?

9 A. That's a good question. I don't know that I

10 know the whole - Lane is a nice enough

11 fellow, but, you know, he wants to have a job

12 and wants to get to retirement so I'm sure,

13 and I couldn't prove it, but I'm sure there's

14 times that he has done stuff for Mark because

15 he feels that if he doesn't Mark will come

16 after him.

17 Q. That's what apparently other people under

18 Mark feel. I mean there is that kind of

19 pressure on individuals?

20 A. Whenever it went to my deal with Cody Cowan

21 was going to go to a fact finding hearing and

22 I knew that the fact finding hearing, because

23 I'm a fairly intelligent man and I can put

24 two and two together on things, I knew about

25 who was going to be on the fact finding


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1 hearing board and it was going to be Lane and

2 Lamont Radcliff.

3 Q. Say that last name.

4 A. Radcliff.

5 Q. Who is he?

6 A. He's over the courts.

7 Q. And that's who was going to be on the fact

8 finding?

9 A. Yes, for my deal with Cody Cowan.

10 Q. Does Mark control both of those people?

11 A. Yes.

12 Q. Tell me what you found? What's the story

13 with this Cody Cowan?

14 A. What happened with that was --

15 Q. Did I say his name right?

16 A. Cody Cowan, yes. As I said we have job

17 descriptions for each of these jobs and after

18 Tim left we advertised for it and realizing

19 that Mark Rohr has never sat in on any

20 interview ever other than a department head

21 that I'm aware of. In the six years that I

22 was there the only interviews that he would

23 ever sit in on was a department head

24 interview. This guy is third in line so to

25 speak in the Public Works Department, with


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1 David being the Department head, me being the

2 Assistant, and then Tim would have been

3 essentially third in line. Mark took an

4 active role in going through having Sam go

5 through these applications and stuff and they

6 picked people - out of all the applicants

7 that I went and looked at there was two

8 people, maybe three that were qualified for

9 the job by the job description, one of them

10 being Dave Hunt who was my transportation

11 engineer at the time, and a couple of other

12 people that had Public Works experience and

13 some of the education background. They

14 compiled a list, they being Sam, Mark, and

15 Reba Sandley (ph.) which was the H.R.

16 Director at the time, compiled a list of who

17 they thought we ought to interview, and none

18 of them met the qualifications. So David and

19 I, my boss David Hertzberg and I, put

20 together our reasoning for why we think it

21 needs to be that way mostly because that's

22 what the qualifications are asking for, and

23 if you're going to let anybody apply for it

24 you need to make that known to everyone. So

25 anyway they allowed us to interview Dave Hunt


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1 who was my transportation guy who effectively

2 at the time whenever you put all of the other

3 candidates together, and I actually have

4 somewhere, a list of all the candidates that

5 we interviewed.

6 Q. Could I have this marked?

7 BY COURT REPORTER: Is that your only

8 copy?

9 BY THE WITNESS: You can keep that.

10 Q. (By Mr. Loraine) I'm going to mark that as

11 Exhibit #28. It gives a series of names and

12 times. Is this the list of folks that were

13 interviewed?


15 Q. Tell me about it. Part of the qualification

16 was you had to have so much Public Works

17 experience, they wanted you to have some

18 experience in some of the different facets

19 that the Operation Manager was involved with

20 and that was waste water treatment, code

21 enforcement, building codes and stuff like

22 that. Didn't have to have all of it, but

23 needed to have some background with fleet,

24 garage, and so the only one that really had

25 any of the experience was Dave Hunt. Well,


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1 in the first run through that they selected

2 which was Mark, Sam, and Reba, Dave Hunt

3 wasn't in there, so I think as a concession

4 they let us since we complained about it, let

5 Dave be a part of the interview process. So

6 we interviewed and we had interviews, we

7 ranked them all on the board, and of course

8 David Hertzberg and I went more towards the

9 technical piece of it which we felt was more

10 important because you can always kind of

11 teach somebody management and stuff like that

12 and it's hard to teach somebody engineering.

13 And were 2 of 5. And the other 3

14 miraculously ranked Cody higher so when it

15 was all said and done Cody Cowan was the high

16 point winner for the interview. We all got

17 to make our arguments. Mark and I got rather

18 passionate about our choices. I told him why

19 I thought mine was a better choice and he

20 told me why he thought his was, and it was

21 obvious that's the way the group as a whole

22 felt that it was and I said, you know, having

23 somebody that has no technical skills doesn't

24 help me. I don't have time to do my job, the

25 Public Works Director's job who still hadn't


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1 fully checked back in, and then turn around

2 and train somebody else to come in here and

3 do this work. I need somebody that I can

4 trust that's technically competent and I've

5 got the guy right here, and he can still

6 continue to do his job until we get somebody

7 to fill his position and he can help train

8 them so we don't lose some of the

9 efficiencies that we have. And Mark just

10 very passionately back to me says, you know,

11 this is the way it's going to be. This is

12 the guy that we've got. So I said, fine, if

13 that's what the group wants I'll play ball.

14 You asked me to give you my opinion, I gave

15 you my opinion, this is the way we're going

16 to go so this is the way we'll go. So they,

17 and I say they, Mark and Sam had all the

18 communications with Cody. Once again that's

19 never happened in the whole five and a half

20 years that I've been there. Typically the

21 Public Works Director, which would have been

22 David Hertzberg, he and I would have sat down

23 and talked about it and David would have been

24 the one working with the H.R. Director to try

25 to get the person on, you know, get them


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1 employed. And there's a range, a salary

2 range, and typically we don't go past like

3 Level 3.

4 Q. Which is what?

5 A. Well, there's steps. There's like 12 steps

6 and I can't tell you --

7 Q. In step?

8 A. Yeah, when you hire somebody in they hire in

9 usually at Step 1, but every now and then

10 they'll let you go Step 2 or Step 3. So we

11 never had a say in it at all, Mark and Sam

12 handled all of it. And they hired Cody on at

13 the top step, the very top step in the range.

14 Q. Which was what?

15 A. $70,000.00 and some.

16 Q. What would it have been, what level?

17 A. I don't know, Level 12 or something on the

18 steps at the time. But it was at the very

19 top. He had no more room for anything to go.

20 And realize Tim Nyander who had left the

21 City after thirty years of experience wasn't

22 at the top level. And so we're hiring a guy

23 in with no experience at all with doing our

24 --

25 Q. And he wasn't an engineer?


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1 A. And he wasn't an engineer. And neither was

2 Tim, but Tim had come up - he had the

3 technical background through the waste water,

4 he was Class A certified waste water

5 treatment operator, he had a Master's in

6 Public Administration, he had his degree, had

7 the background and come up and had got his

8 education and was qualified for the job.

9 We're paying a guy with no experience more

10 than the guy that left and then we're paying

11 him more than Troy Bolander who is at the

12 same level as Tim Nyander who is our City

13 Planner who had been there for fifteen years

14 so we're going to bring this guy in at the

15 top level. Once again that's not my

16 decision, that's the City Manager's decision.

17 So Cody was supposed to start to work on a

18 Wednesday, I believe it was. And I can't

19 tell you the exact date, but I know the day

20 of the week was like a Wednesday. And he

21 came in to City Hall on Monday to visit with

22 David Hertzberg, my boss. Mark and Sam were

23 both gone, they were both on vacation. David

24 wasn't available at the time. I'm in my

25 office with Dave Hunt, my transportation


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1 engineer, and we're talking about some work

2 related matters and some personnel stuff.

3 Our clerk in the Billing Department comes

4 back and says there's a Cody Cowan here

5 that's supposed to meet David, he's not here,

6 can he come in and see you, and I said, yes,

7 let me finish up here and I'll be glad to see

8 him. She goes in and brings him back and

9 he's standing by the door and I'm trying to

10 finish up what I'm talking about with Dave.

11 Cody comes in and just starts talking to me,

12 interrupts my conversation, so I tell him I

13 don't have a whole lot of time to talk with

14 you because I've got a mandatory prebid that

15 I have to go to in 5 to 10 minutes so I'll do

16 what I can to help you out and talk with you

17 a little bit. So he asked me about the job

18 and he said, you know, what kind of hours,

19 and I said you're going to work harder here

20 than you've ever worked in any job, after the

21 tornado I'm typically putting in six days a

22 week, 12 plus hours a day, and I've got a

23 hundred emails a day at least to get through

24 and 20 phone calls to get through. You're

25 going to work from 7:00 in the morning until


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1 7:00 at night and that's just the nature of

2 the beast right now. And he was like, okay.

3 Then he asked me about what I thought about

4 the job and I said, well, listen, if you're

5 coming here expecting to get patted on the

6 back that's not going to happen. You're

7 going to be probably the most hated person

8 around and I said in the context that you're

9 dealing with code enforcement and building,

10 you're going to be over that. And the people

11 with code enforcement that you went out and

12 you've ticketed for tall grass, you've

13 ticketed for trash in the yard so when they

14 come up to see you they're hating you right

15 off the bat. They don't like you. And the

16 same way with building people, if you don't

17 give them the permits that they want they're

18 going to come up. So don't do this expecting

19 to get patted on the back and told good job

20 because the job you're coming in it's not

21 going to happen. You're doing this because

22 you want to be a good public servant. I kind

23 of give him the same speech that the City

24 Manager gave me whenever I started to come to

25 work, so I thought I was doing what of course


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1 the City Manager would have wanted me to do.

2 Then he asked about the pay and I told him

3 you're not going to get any raises, and he

4 said, well, what do you mean. I said, well,

5 you're at the top end of the range, and he

6 asked me what that meant. I said, well,

7 worst case scenario you're going to work the

8 next 30 years here without a raise. Now that

9 being said every 5 years the H.R. Department

10 goes in and evaluates all the positions and

11 classifies it all and readjusts it so

12 hopefully you'll be able to see increases as

13 it goes along with that and then you've got

14 longevity that comes in, if you've been here

15 for a certain amount of time you get some

16 increases because of longevity, but as far as

17 where you're at you're at the top. There's

18 nowhere else to go. Well, it was then I

19 could tell he was a little perturbed because

20 apparently they hadn't mentioned that to him

21 whenever they made him the offer and done all

22 that. And he was like, oh, that's fine. And

23 then I had to leave, David showed up about

24 that time. For the large majority of the

25 whole entire conversation Dave Hunt, my


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1 Transportation engineer, was sitting in there

2 listening to it. He left and then Cody

3 decided not to take the job and told David

4 the next day that he wasn't going to take the

5 job. I told David, hey, do you want us to go

6 over there and --

7 Q. David who?

8 A. David Hertzberg. Do you want me to go over

9 there and talk to him and see if we can't get

10 him back in the fold and try to get him back

11 in here because, you know, I'm sure I

12 probably scared the heck out of him with some

13 of the stuff that I talked to him about. He

14 said, well, he did say, my god, is this what

15 I signed up for. I said, well, I'm not going

16 to say I was the most pleasant in the world

17 because I was busy and he interrupted me, he

18 was very arrogant, very rude when eh came in,

19 so I responded in kind of. And we got in

20 there and had what I thought was a fairly

21 decent banter back and forth, told him what

22 he wanted to hear, and I'm sure he was not

23 very happy with it so he decided not to take

24 the job. Then it comes at me that I was the

25 reason that, and Mark assumes that I'm the


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1 reason that Cody is not taking the job, that

2 I sabotaged him from getting the job. It was

3 not my intent at all. I said I've got a

4 witness in there that can tell you exactly

5 what happened. I've got nothing to hide.

6 I'll tell you everything that happened. Sam

7 Anslem called up Cody to talk to him. I have

8 no idea what was said. I don't have any idea

9 if he coached him or Cody told him anything,

10 but then Dave Allgood, the H.R. Director, and

11 Sam turned around and called Cody back up

12 again and they wrote up a nice little

13 dissertation of exactly what Cody had said

14 and it painted me in a very unfavorable

15 light. And I talked to my boss David

16 Hertzberg about it because they started doing

17 an investigation on me to see what kind of

18 punishment I should get for sabotaging this

19 relationship, and I told David, I went

20 through that list, and I told him, I said I

21 did exactly, I told him that, that's exactly

22 what I said, this is the context that it was

23 in. Cody had taken things and took them out

24 of order and put some of the stuff out of

25 context so if you put it in context it wasn't


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1 near as bad as Cody made it out to be, it

2 was, yeah, I did tell him, yeah, you will be

3 here the next 30 years without a pay raise,

4 but I said if you had been in there with me

5 he'd asked where he was at, I try to be

6 honest with him, answer his questions

7 honestly because it does not good for me to

8 lie to him and him come to work here and find

9 out three weeks later that he gets no raises

10 so I tried to be honest with him and let him

11 know what our process was. He asked about

12 the work, you know. So we went through point

13 by point on this deal and I let David know

14 exactly what I said and David put together

15 the investigation on his end, turned it in to

16 --

17 Q. David?

18 A. Hertzberg. Took it and turned it in to Mark

19 for I've done my investigation on this, I

20 don't think Jack did anything malicious or

21 wrong. Should he have maybe used a little

22 better tact at times, yes, probably should

23 have, but he didn't do anything except for

24 answer the questions that were asked of him

25 honestly. Then I get a notice to a Fact


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1 Finding Hearing, told I'm going to go to a

2 Fact Finding Hearing. Let me make sure I'm

3 right about that. I'm not going to lie to

4 you and tell you I know the exact order, but

5 at one point after that I got called in to

6 the City Manager's office and sat down there

7 with Brian Head, David Allgood, Sam Anslem,

8 and Mark Rohr in what I call the ambush. I

9 got called up there and basically Mark sat

10 there and said you're going to get a chance

11 to talk, but I'm going to talk first and I

12 want to go over some of the stuff that's

13 happened with this, and I don't want to

14 misquote it. I went and asked for it to be

15 put in my personnel file after a certain

16 amount of time after I left because I know

17 that Mark would have pulled it out of there

18 had he known I'd put it in there. But I put

19 in a memo stating exactly what had happened

20 during part of the ambush and everything like

21 that and what it was.

22 Q. Could I have a copy of this?

23 A. Yeah, you can keep that.

24 Q. Is this your only one?

25 A. No, that's a copy.


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1 Q. Can I mark that, please?

2 A. There should be one provided, if it hasn't

3 been taken out of my personnel file there

4 should be one in my personnel file.

5 Q. This is Exhibit #29, sir, what you just

6 handed me?

7 A. Yes.

8 Q. And what does this basically say? I mean I

9 can read it and I will read it, but what does

10 it basically say?

11 A. That is basically my reason for why I signed

12 the waiver of the Fact Finding Hearing under

13 duress. I had been told I was going to go to

14 a Fact Finding Hearing and when it come to

15 the Fact Finding Hearing process you can

16 either go to the Fact Finding Hearing or

17 waive your right to the Fact Finding Hearing,

18 and this kind of explains why I had decided I

19 should sign the waiver of the Fact Finding

20 Hearing. And the reason for that was, and I

21 say here by signing the waiver, I am by no

22 means admitting that I did anything wrong,

23 but I had no chance to win. Because the way

24 the Fact Finding Hearing board works - and

25 let me diverge just a little bit here. One


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1 of the other reasons that I signed the waiver

2 for the Fact Finding Hearing was to keep

3 other people from getting damaged in it, too.

4 Because if Chief Lane Roberts and Lamont

5 Radcliff had been on that panel and heard my

6 side of the story I'm a hundred percent

7 confident that they would have voted on my

8 side of the matter. They know me, they know

9 how I am, I'm very honest, I don't lie about

10 stuff. Whether it gets me in trouble or not

11 I just tell it like it is. I'm very blunt.

12 I wear my heart on my sleeve at times. I'm

13 very passionate about what I do, but I'm very

14 honest about it, also. And had they voted to

15 there would be no disciplinary action towards

16 me, that I really didn't do anything wrong,

17 then Mark would have been mad at both of

18 them. And then once you do the Fact Finding

19 Hearing they turn in their recommendation to

20 Mark, Mark gets to make his own

21 recommendation out of it. He doesn't have to

22 accept their recommendation so he gets to

23 make his own recommendation, so Mark already

24 had it in his mind that I was going to get

25 punished on this deal. So regardless of what


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1 they would have come up with the only thing

2 that would have happened out of it is they

3 could have got in trouble and got on Mark's

4 bad side. Then had I appealed that it would

5 have went to the Personnel Board, so it goes

6 to the Personnel Board and I'd win at the

7 Personnel Board, then I've gotten the City

8 Manager, my boss' boss, unbelievably mad at

9 me because he thinks I ought to be suspended

10 for what I done. And I don't agree with

11 that, but as I was saying what I called the

12 ambush, those four people and myself were in

13 there, and Mark come up and said you're going

14 to get a chance to talk, but I'm going to

15 talk first. But he said before I talk I

16 should listen to him and if I said anything

17 that was contrary to what he knew was the

18 truth there would be serious consequences.

19 And everyone there heard it.

20 Q. Was he yelling at you at that time?

21 A. No, but he was right below a yell, yeah. He

22 stood up and, you know, kind of come towards

23 me from behind his desk to get the point

24 across. What that basically told me was shut

25 up and don't say anything. Don't tell him


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1 what your side of the story is or don't tell

2 him what the truth is because he's already

3 made up his mind what he thinks the truth is.

4 You might have to make a copy of that one.

5 That is my original.

6 Q. We'll take a break here.

7 (Short break taken, back on record)

8 Q. (By Mr. Loraine) Sir, you've handed me, I

9 made a copy of your document, and it's a copy

10 of a memorandum of discipline from Rohr to

11 yourself dated May 30th, 2013. That's now

12 marked Exhibit #30, is that true?

13 A. That is true.

14 Q. What does Mark say in this document that is

15 significant?

16 A. Well, he said he reviewed the investigation

17 conducted by David Allgood and that after he

18 done the thorough investigation it was

19 recommended to him that he be suspended

20 without pay, that I be suspended without pay

21 for two 8-hour shifts. What I would say on

22 that is the part of the investigation that

23 never happened was Sam Anslem was doing the

24 investigation in conjunction with Dave

25 Allgood. Neither one of them talked to me


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1 about the incident that happened. I will say

2 David Hertzberg, my boss, was the only one

3 that come to me and asked me about it and

4 talked to me about it. He also went and

5 talked to Dave Hunt who verified the content

6 and the frame with what I said and how Cody

7 reacted to it which was, hey, that's fine,

8 I'm used to working long hours, you know,

9 I've been where I'm at and I haven't got a

10 pay raise there in awhile, too, so that's not

11 big deal, I'm used to it. So when Cody came

12 back and gave his side of it - and that's why

13 I want to quantify the fact that Sam had

14 talked to Cody alone and then come back and

15 talked to Cody with Dave Allgood there. So I

16 don't know if he led the witness down the

17 answers that he wanted to hear because he

18 knew Mark wanted me punished. This was

19 Mark's guy that Mark wanted, and so what

20 happened with that --

21 Q. You're talking there was no thorough

22 investigation and, in fact, nobody really

23 talked to you except your boss and ultimately

24 he gets disciplined?

25 A. Yes, ultimately. And there's even more to it


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1 than that. When this was presented to me it

2 was presented to me by Dave Allgood, the H.R.

3 Director at the time. He come up there and

4 he gave this to me and I said, Dave, it says

5 right here that this was your recommendation

6 to Mark. Did you recommend to Mark that I be

7 suspended for two days? I said based on

8 everything that you know. And he says, Jack,

9 I can't - he says I did not. He says I told

10 Mark that you didn't do anything wrong, worst

11 case scenario it ought to be an oral

12 reprimand, you know, just to use better

13 judgment on stuff. But I've got to have a

14 job. And this is where he decided he wanted.

15 And I told him I said, hey, I'm fine with

16 that, Dave. I wanted to know - and he said

17 and I can't - he said I can't - he said some

18 day I'll make it right with you, I'll get it

19 right in your file and I'll make it right,

20 which to me meant after Mark is gone he'll

21 make it right. But he couldn't do anything

22 at the time because Mark had basically said

23 this is what's going to happen.

24 Q. Who told you that?

25 A. He told me - we sat there face to face and he


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1 told me that, and if he's a man of his word

2 he would sit right there in front of you and

3 tell you that he told me that.

4 Q. Let me ask you this.

5 A. It wasn't his recommendation that I be

6 suspended for two days without pay.

7 Q. Let me ask you this question. Did Allgood

8 ever really talk to you about your side of

9 the story before this happened?

10 A. No.

11 Q. So neither of those guys talked to you?

12 A. No.

13 Q. So that's false, also?

14 A. Yes, after it was all wrapped up and I

15 already knew what was going to happen then

16 Dave Allgood come up and talked to me and we

17 went through the whole deal and he says, you

18 know, Jack, that's exactly what I thought

19 would happen, and then he gave me this and

20 then I asked him, I said, did you make that

21 recommendation and he said, no, that's not

22 the recommendation I made, but I've got to

23 have a job. So basically how the system

24 works, which I will tell you I think is a

25 flawed system, is that my accuser, Mark Rohr,


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1 was also the judge, jury, and executioner on

2 the whole thing, so I had no right to a fair

3 process. And conversely what happened after

4 that is my boss gets demoted because he stood

5 up for me, not saying that there was

6 management style and stuff like that that

7 David was really great at what he done, but

8 what they demoted him over was not - you

9 know, if you wanted to get him on his

10 performance or on his supervisory skills

11 that's fine, but the way they went at it was

12 wrong.

13 Q. What did they get him on?

14 A. They tried to tell him he was - basically

15 wrote him up in the paper like he was a

16 criminal. He was responsible for that

17 $150,000.00.

18 Q. Which we've already discussed on the

19 software?

20 A. Yeah. And I know I'm taking some tangents

21 here, but I want you to know that I get very

22 agitated about the fact that they start

23 talking about the uncollected revenue of that

24 $150,000.00, and if you go and look into it

25 very close at all you will see that Leslie


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1 Haase writes off about $50,000.00 a year in

2 mowing bills. We have told her from the day

3 that I got there, within the first two months

4 we sat down and talked to her about these mow

5 bills, you need to go and put them on the

6 people's personal property tax, then they

7 have to pay it. You can't just pay part of

8 your personal property tax, you have to pay

9 it all. She didn't want to upset the apple

10 cart so she would just write off. So you

11 start talking about somebody that refuses to

12 use the legal system to collect money. We

13 basically fire Steve Cope, we demote my boss,

14 she gets nothing out of it and she's got more

15 outstanding debt over a ten year period than

16 we had over a fifteen year period even if you

17 used the $150,000.00. Four years at

18 $50,000.00 a year is $200,000.00.

19 Q. That's what is missing out of her --

20 A. Well, what it is we send out mow bills when

21 we have to go and mow the lots for somebody

22 that's got tall grass. They don't mow it

23 themselves, we mow it and they get a bill.

24 She sends the bill out to them. If they

25 don't pay she writes it off. Well, we've


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1 told her and told her and told her that you

2 need to get to collecting on that and the

3 best way to do it by the legal system is to

4 go have it put on the personal property tax.

5 Yeah, I know the County Collector over there

6 is going to raise hell about it, but he can't

7 do anything about it. Legally he has to put

8 it on there and that forces them to pay. If

9 you put a lien against their property most

10 all of those properties that you're dealing

11 with you're going to be third of fourth lien

12 holder on there so you're never going to see

13 a dollar out of it anyway, but you can take

14 those small ones and put them on the personal

15 property taxes and they have to pay them.

16 Q. Do you know if that's a legal method?

17 A. Yes.

18 Q. How do you know that?

19 A. We researched it, Steve Cope, myself, and

20 Dave Hertzberg researched it, brought it down

21 to her, showed her the legality of it and how

22 it worked, and I believe we even checked with

23 Brian Head, you know, to make sure everybody

24 understood that was a way to do it. That's

25 what Steve Cope did. He talked to all his


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1 other code enforcement counterparts and found

2 out how they all done it and that was the way

3 the majority of them were able to get good

4 collections done. It's a little more

5 tedious, a little more work to do it, but if

6 you're going to go and start hammering people

7 for not collecting revenue I give you a way

8 to collect revenue and you choose not to use

9 it that's to me almost as egregious as not

10 collecting revenue to start with.

11 Q. Now let's move to another topic. I want to

12 talk about the rebuilding of Fire Station 2.

13 I was told that there was an issue with a

14 culvert and I was told two different stories,

15 but I want to hear your version of it.

16 Explain to me what the standard engineering

17 opinion was and should have been.

18 A. A little background. Station 2 over on

19 Schifferdecker, the property that we acquired

20 was kind of in a lower area and had a

21 drainage ditch that run through it. Part of

22 that drainage ditch whenever you put the new

23 fire station on it needed to be relocated.

24 And our original intention, and I say our

25 which would have been myself and Dan Johnson,


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1 who was my storm water engineer at the time,

2 was to just do an open channel, basically

3 leave it as a ditch, make an open channel,

4 slope the side slopes back so that they were

5 easily mowable, plant some grasses in the

6 bottom that weren't going to grow up real

7 tall because it always seemed to run water

8 through there so you wanted to make it - or

9 we were going to put a concrete channel in

10 the bottom of it just so it would look decent

11 because we know the City Manager is all about

12 how things look. So we sat down with the

13 Fire Chief, Mitch Randles, and said here's

14 what we've got. He said, well, can we put a

15 box culvert in there and I said, well, yes,

16 we can, but the most economical way to save

17 money because he was really tight on his

18 budget --

19 Q. Who was tight, Mitch?

20 A. Mitch was. Leslie had only budgeted so much

21 for the rebuild of Fire Station 2. So we can

22 do it with our own City forces, we use Public

23 Works crews and we'll do this. And he said,

24 well, what about a box culvert and I said,

25 yeah, we can put a box culvert in there, but


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1 who is going to pay for that box culvert.

2 He's like I don't know, I just know that the

3 City Manager is not going to want the ditch

4 in there, and I said, okay, that's the most

5 economical way to do it. He said I'll talk

6 to the City Manager and see what he wants,

7 but the City Manager is going to want a box

8 culvert in there. And so I thought that he

9 and I would probably go approach the City

10 Manager about it, but Mitch talked to him

11 aside from when I had come, said, yeah, the

12 City Manager wants the box culvert in there.

13 I said, well, how are we going to pay for it

14 and so Mark Rohr, Mitch Randles, Leslie

15 Haase, and myself sat down to discuss how it

16 was going to do it. I said, well, we can put

17 it in with City forces so all you'd be paying

18 is the materials, but it's going to be, you

19 know, close to $100,000.00 of box culvert,

20 just materials alone to go in there. But on

21 the bid for the contractor it was $600,000.00

22 so it was a net savings based on what their

23 estimates was of about half a million

24 dollars.

25 Q. That was using City guys?


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1 A. Yes, using our City funds.

2 Q. No, I mean City builders?

3 A. Yes, City forces.

4 Q. So you do it within, okay. Otherwise you'd

5 be out $600,000.00?

6 A. Yes, and that was their estimate. They

7 hadn't bid it at the time, but that was what

8 the architect had estimated. And so Mark

9 said, well, let's go ahead and put in the box

10 culvert and do that and then we'll have a

11 flat area for that and then whenever we sell

12 that property, the property out in front of

13 the fire station because that would leave a

14 piece of property out in front of the fire

15 station, if it sold then we would take that

16 money and we'd put it back in the storm water

17 fund because we were going to use storm water

18 sales tax money to pay for that box culvert

19 to go in.

20 Q. Whose idea was that, to use the storm money?

21 A. Whose idea was it?

22 Q. Yes.

23 A. I believe it was Leslie and I think we all

24 sat down there collectively and said, well,

25 how do we pay for that, and I was like, you


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1 know, I'd say you put it to the fire station,

2 just add it to the fire station, and I

3 believe Leslie said, no, we can put it in the

4 storm water. It is a storm water deal and I

5 was like, well, it is a storm water project

6 so if that's where you want to do it that's

7 fine, but as I always did with her whenever

8 something like that came up I said, but I

9 want you to realize if I come back to you at

10 the end of these projects, and not

11 necessarily this specific but the whole group

12 of projects, and we're short I want you to

13 remember this, you know, if I need another

14 $50,000.00 over here on another project to

15 finish up because there's no money it's

16 because we took it out of this project here.

17 Q. Let me ask you this. There's no accounting

18 for that box culvert cost the way you've

19 described it, it would not be audited towards

20 that firehouse?

21 A. That is correct, it would go towards the

22 storm water.

23 Q. Who authorized that change?

24 A. Who authorized it? The authorization came

25 through Mark.


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1 Q. Mark. And did Mark bring that to City

2 Council?

3 A. No, he did not.

4 Q. So really he adjusted the budget for the fire

5 station by himself really?

6 A. Yes.

7 Q. The budget was set by Leslie with the

8 knowledge of the Council?

9 A. Yes.

10 Q. So as we're sitting here today do you have

11 any knowledge as to whether or not the City

12 Council was ever advised that budgeted item

13 was not taken from the Firehouse Number 2

14 budget, rebuild budget, but at least about

15 $100,000.00 --

16 A. Roughly when you looked at all the different

17 stuff we had to do we wound up getting into

18 some terrible subgrade out there that the

19 geotechnical engineer said we weren't going

20 to run into and we spent a bunch of money in

21 rock stabilizing the site and then the box

22 culvert alone, so yeah, it was $100,000.00

23 plus.

24 Q. Was your design engineer on that?

25 A. Dan Johnson, yes.


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1 Q. Dan told me in testimony that it would

2 probably have been about $125,000.00.

3 A. I would trust his judgment on that. He is

4 the one that estimated all the quantities out

5 and got the cost estimates for us so his

6 $125,000.00 would probably be close to right.

7 Because there was a box culvert, then there

8 was associated piping that went with that,

9 backfill material.

10 Q. So if I'm understanding this right your

11 authorization to alter the budget for the

12 firehouse construction was done by Mark

13 without knowledge of the City Council?


15 Q. And if went back to account for that now, if

16 an auditor came in to account for that

17 $125,000.00 it would not show up on the

18 reconstruction of Firehouse No. 2?

19 A. That is correct, it would show up underneath

20 the storm water.

21 Q. Well, something would --

22 A. As a storm water project.

23 Q. Yeah, and so it would not be associated with

24 the budget that was originally set up?

25 A. That is correct. That being said there is


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1 discretionary funds in the storm water

2 account to be able to do storm water projects

3 for projects that come up throughout each

4 budget year, and that's where that wound up

5 landing.

6 Q. Well, let me put it this way. There should

7 be an extra $125,000.00 in the storm budget

8 account for some other ditch somewhere else,

9 shouldn't there?

10 A. There should be $125,000.00 for a project

11 that was necessary somewhere else in the

12 City.

13 Q. That didn't get done because of that?


15 Q. If I asked Leslie how that was budgeted I

16 mean would that be - is there something

17 called general?

18 A. The general fund?

19 Q. Yeah, just general.

20 A. I don't believe she would have put it in the

21 general fund. Typically the general fund

22 takes care of salaries and stuff along that

23 line. And the fact that Mark's statement was

24 when that sold, that property sold, the

25 revenue from that would go back into the


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1 storm water account leads me to believe, and

2 I honestly didn't go and follow everything

3 where she took it out of it, but it would

4 have come out of the storm water sales tax or

5 storm water maintenance account.

6 Q. Once again that's --

7 A. It was a fire station project that got

8 charged to the storm water account.

9 Q. And Mark made the decision ultimately to do

10 that without advising the Council on that?

11 A. That is correct. All of that happened before

12 the project bid out based upon estimated

13 costs, and once they got the estimated costs

14 of construction it was over budget, and in an

15 effort to try to bring it back closer to

16 within budget the Public Works Department had

17 to once again take up the slack. The same

18 thing happened out at the athletic complex.

19 Q. So doing it internally normally that stuff

20 would be bid out, wouldn't it, to a

21 contractor?

22 A. Yes, it was originally set up to be part of

23 the contractor that did the fire station

24 construction part of their work.

25 Q. But because the budget was over Chief Randles


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1 is looking for a way to cut his budget, your

2 design engineer basically tells him here's a

3 great way to do it. Let me ask you this

4 question. Did you as an engineer and as a

5 supervisor of Dan - what's his last name?

6 A. Johnson.

7 Q. Was his opinion that excluded the box

8 culvert, was that within certainty of your

9 profession as meets the standards necessary?

10 A. Certainly, yes.

11 Q. So in other words he didn't say, hey, let's

12 do it this way. What he decided was, hey,

13 this meets our engineering standards and it's

14 within the budget.

15 A. It's the most economical way for us to

16 complete the project.

17 Q. Was there anything wrong with his opinion in

18 your opinion?

19 A. No, there was nothing wrong with the opinion.

20 Q. It's good to save money, isn't it?

21 A. Yeah, that is correct. An open channel, open

22 ditch is always cheaper than putting in storm

23 sewer. Now if we have by our standards like

24 on a roadway where it's our standard and it's

25 our policy and it's our practice that you've


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1 got to put in curb and gutter and storm water

2 then you have to put that in. But when it

3 comes to the drainage channels across the

4 City, an open channel is way more cost

5 effective than doing a box culvert. You only

6 put box culverts in normally for reasons

7 where you're going - when you have an open

8 channel and you go to a box culvert would be

9 because you're crossing it with a roadway,

10 maybe you have a severe erosion problem or

11 something like that so you're putting

12 something in there to help arm that. But

13 every other project that we've done, and if I

14 had the list in front of me I could name half

15 a dozen of them, when we did channel

16 modifications like that we went back in, we

17 put down an erosion control mat, geotechnical

18 type fabric, and seeded it and let the grass

19 grow up and leave it as a channel there. You

20 reinforce it using geosynthetic material at

21 $2.50 a square yard instead of $450.00 to

22 $600.00 a lineal foot.

23 Q. Which would be the result of a culvert?

24 A. Which would be a box culvert.

25 Q. If this had bid out and an outside consulting


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1 firm came to talk to Dan what would he have

2 told them to do? Would he have told them to

3 put in a culvert or would he have told them

4 to do what you guys did?

5 A. If this was done with nobody else's

6 involvement in it it would have been designed

7 as an open channel.

8 Q. Just like he did design it?

9 A. Uh-huh. It was an open channel there --

10 Q. Before.

11 A. Before. It was just moving that open channel

12 a little bit to make sure that you'd get a

13 parking lot and everything else in there. We

14 were shifting the ope

Schaller, Jack - Vol (Investigation-11/15/13)

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