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PAB member expresses concern at outcome of Luman hearing

Recently, the Mono County Personnel Appeals Board (PAB) voted 2-1 to uphold a determination by Mono County CAO Jim Arkens to terminate long-time County mechanic Dick Luman due to a workplace violence incident in October 2011.

In the final report that came out in the weeks following the decision, the PAB expressed that it had come to its conclusion based on one item: that Luman had threatened Brett McCurry, the fellow employee with whom he fought.

On Tuesday, Aug. 7 the County Board of Supervisors unanimously voted to also deny claims for damages submitted by Luman.

Recently, The Sheet chatted with PAB member and Mono County Supervisor Tim Hansen about the hearing. Hansen was the lone dissenting vote in the decision to uphold Luman’s termination.

Bottom line: Hansen does not believe that Luman needed to be terminated. He pointed to a change in personnel rules as the major culprit of the unfairness of the County’s actions.

“This [Luman hearing] was the first hearing under the new personnel rules,” Hansen explained. “There are a lot of inequities in the new rules.”

Hansen is of the opinion that the employees’ union for the Mono County Public Employees [MCPE] group, sold out the employee’s rights at the bargaining table last year.

“Under the old rules, an employee would have been accused, gone through the Skelly hearing, received a verdict and given the right to appealm, all while still being employed,” Hansen said.

Under the new rules, it’s fire first and ask questions later, according to Hansen. At the time the PAB hearing began, Luman had already been terminated for several months.

Hansen stated that at the time of Luman’s Skelly hearing, the question was raised regarding what set of rules the County should be using in the case, but it was never answered. The incident itself, took place prior to the new rules going into effect.

Mono County CAO Jim Arkens, however, stated that the union insisted that the new rules be used.

“The [new] personnel rules give the County more of a chance to prevail,” Hansen continued.

Another change in the new rules, according to Hansen is the way in which the third member of the personnel appeals board is chosen. In the past, the union chose a representative, the County chose one, and the third person was a qualified arbitrator, according to Hansen.

“This was dropped under the new personnel rules and the third member [Ken Goode] was chosen through a coin toss,” Hansen explained. The union won the coin toss and got to choose another PAB member.

“That might be okay to kick off a football game, but it’s not the way to determine someone’s future,” Hansen said.

The result was a PAB with little to no legal background, creating what some have dubbed a kangaroo court.

Hansen couldn’t agree more, but he does think that he was fair in his decision-making, even though he and his fellow PAB members were all questioned about conflicts of interest and impartiality at one point or another. The fact that County counsel was used to advise the Board has also been called into question.

“I felt I was fair,” Hansen said of his own personal actions. “I got just as pissed off at Katie [Bellomo, Luman’s attorney] as I did Johnny Vallejo [counsel representative for the County].” Hansen was criticized by some regarding his impartiality because he has been friends with Bellomo for many years. He is also friends with Luman, but claims that comes from living in a small town.

“I’m friends with everyone,” he said.

“Plus, I stood up for the County regarding the change of ruling,” he said, referring to the decision that was made halfway through the hearing to allow new evidence to be introduced, even though the Board had adamantly determine at the hearing’s outset that it would not be fair to allow any new information that was not provided at the Skelly hearing.

“This is going to go to a real judge and real court,” Hansen said. “And that judge is going to shake his head at the rule change.”

In Hansen’s opinion, the County’s upper management has the wrong idea of justice.

“County counsel, Jim Arkens and Rita Sherman are trying to protect the County from all liability,” Hansen said. “Why doesn’t the County defend the employees and treat them fairly? Luman had a bad name as an employee because he had filed several workers’ compensation claims in the past. The County wanted to get rid of the problem employee.

“Whether what Dick said on the day of the incident was a threat or not doesn’t provide the burden of proof that the County needed to show,” Hansen continued in reference to the one item that the PAB based its final decision upon.

Arkens, however, believed that the “threat sparked the whole thing.” He reminded The Sheet on Wednesday that he had testified during the hearing “the threat was enough for termination.” It was what Arkens had based his original decision upon.

“It was proved that Brett McCurry was a bully,” Hansen said. “Employees complained and nothing was done. I am concerned about the inequities in the personnel rules. It will put the County in trouble when this goes to court.”

In Hansen’s opinion, McCurry was doing what the County wanted him to do, which was to “kick a** and take names.”

“His promotion went to his head and he took it upon himself to try to bring the performance level up in that [mechanic] district,” Hansen said. “Before the promotion he was friends with a lot of these guys.”

After, however, Hansen stated that complaints about McCurry were ignored and employees were told not to go over their supervisor’s head.

Since the close of Luman’s hearing, Hansen claimed that County employee morale continues to go down.

“There’s a fear of impending doom,” he said. “Employees sit at their desks with their heads down.”

Arkens, however, was pleased with the outcome of the hearing, even though he too agreed that the proceedings were quite a “circus.”

“The panel did an excellent job and made the best decision based on facts,” Arkens said.

When asked whether or not he would be concerned if Luman takes his case to the next legal level, Arkens said no.

“Everything was ethical,” he said. “The County hasn’t done anything wrong. There was no perjury on my part or [that of] anyone I supervise. There are no conspiracies.”

Arkens stated that the McCurry hearing, which will be held in private, is still being scheduled, as is the hearing for Jim Kerby, who was also present at the time of the October incident.

The Sheet: Is it true that the County is considering giving McCurry a settlement?

Arkens: No, that’s not true. Neither the union nor the County has approached the other regarding a settlement. Besides, I don’t have the authority to work out a settlement over $25,000, and I don’t think the union or Mr. McCurry would settle for that type of number. It would have to go to an open Board session.

Unresolved issues still remain, however

The long-awaited outcome to the Dick Luman personnel appeals hearing was announced Monday. With 2-1 votes across the Board, all disciplinary actions against Luman were sustained, “based on the evidence provided.” This means Luman will not be reinstated in the Mono County workplace at this time.

Personnel Appeals Board Chair and Mono County Supervisor Tim Hansen was the lone vote against sustainment of disciplinary action.

The Board met in closed session for its deliberations, but planned to work with County Counsel Stacey Simon to produce a written statement of facts that would eventually be disseminated to the public to explain how it came to its decision.

Following the reading of the decision, Luman’s lawyer, Katie Bellomo stated one last concern for the record.

Bellomo felt that Appeals Board member Ken Goode should have recused himself from the hearing panel when his wife came under investigation for embezzlement from the County.

“I didn’t want to bring this up before because I didn’t want to offend Mr. Goode and have him vote against my client,” Bellomo said. “But he should have recused himself due to this conflict.”

In April, the Mono County District Attorney’s Office was alerted to an allegation of misappropriation of funds from the Bridgeport Public Utility District. The DA’s Office then conducted an investigation, which revealed that former General Manager Cheryl Goode issued herself numerous unsubstantiated payments. On May 17, Goode turned herself in at the Mono County Jail.

Simon stated for the record that she did not believe a conflict existed.

On Tuesday, in a phone conversation, Luman told The Sheet, “The outcome was what the union and the county had to have.”

“It was what I expected,” Luman said. “The outcome had to set the County apart from the allegations.”

Luman expected that Brett McCurry’s hearing (which is currently being scheduled) would only last a few days and that McCurry would be put back to work. It is what the County and the Union have to have because McCurry is a Union shop steward, Luman said.

He did not, however, believe that things for him were over.

“There is still more to come out,” he said, in relation to his worker’s compensation case.

According to John-Carl Vallejo, who represented the County in the Luman hearing and will also serve as its lawyer in the McCurry and Jim Kerby hearings, each individual has a choice of whether or not to have their hearing held in open or closed session. Luman chose open session, as has Kerby. McCurry’s hearing will be held in closed session. Kerby’s hearing dates are also currently being scheduled.

As for the outcome of the Luman case, Vallejo declined to comment until after the Appeals Board’s report was disseminated.

Continued investigation

During her June 11 testimony in the Luman hearing, Mono County Director of Facilities and Risk Management, Rita Sherman revealed that the County had begun to investigate whether or not Luman had been collecting unemployment and disability checks, concurrently. Collecting two forms of compensation from the County at the same time is not permissible and could be a felony, Sherman said.

Bellomo asked why Sherman had not reported the issue earlier, and Sherman explained that the County had not received the disability information until the previous week.

Sherman provided the document with the information in question. The mailing date on the documents was May 22, 2012. It was a notice of Lien Claim from the Employment Development Department (EDD) to Mono County. In the document it states, “Because you [County] are not paying this individual Worker’s Compensation benefits or are paying benefits at less than EDD’s weekly rate of $637, EDD began paying UCD [Unemployment Compensation Disability] benefits on 11/24/11 and is continuing to pay benefits.”

Sherman and the County were investigating because Luman was not terminated from the County until last December 13. The overlapping dates appear to show that Luman was receiving administrative leave pay and disability at the same time.

On June 11, Bellomo stated that the issue would need to be resolved before the conclusion of the hearing since it spoke to Luman’s credibility.

On Monday prior to the lawyers’ closing statements, the issue had yet to be resolved. Bellomo stated that she had at first planned to put Luman back on the stand to rebut Sherman’s accusations of double dipping, but since the accusations were not relevant to the case at hand, Luman would not go on the stand again, but he would be “expecting an apology from the County.”

“The Board needs to decide if these vague but outrageous accusations are within the scope of the hearing,” Bellomo said. She suggested Sherman’s testimony regarding the issue be stricken from the record.

“You can’t just throw out defamatory accusations without any due diligence,” she said. “These types of accusations would have consequences in a courtroom.”

Vallejo disagreed with striking the information from the record, as this would leave the door open for the Board to strike other evidence as well.

“The Board will decide the relevance,” he said.

Appeals Board members Ralph Obenberger and Ken Goode agreed that the information should remain on the record.

“There has been a lot of stuff brought up during this hearing that has nothing to do with the incident,” Obenberger said. “County paperwork does have cross dates [between disability and unemployment pay]. The Board will give the testimony the weight it deserves.”

Hansen, on the other hand, was in favor of striking the testimony from the record.

There’s a light at the end of the tunnel for Dick Luman. Whether the light will be redeeming or damning is still unclear.

In the past two weeks, the Personnel Appeals Board has met three times to try to bring the hearing, which has stretched for more than three months, to a close.

Luman was fired from Mono County in 2011 following what the County deemed “mutual combat” with fellow employee, Brett McCurry. Both men took their terminations to the appeals board. A third man, Jim Kerby who was witness to the incident and was put on administrative leave for allegedly lying about what happened will also have a hearing.

But the Luman case is the one currently in the midst of proceedings. The three-month stretch occurred because of new evidence introduced (a sheriff’s report), and scheduling conflicts that occurred following the need to have more hearing dates due to the new evidence.

On June 13 and 18, Kerby took the stand to testify in the Luman case about what he had witnessed on Oct. 3, 2011 when the incident occurred.

Tim Kendall, Assistant District Attorney (soon to be District Attorney) was also among the handful of witnesses that testified this month. Others included Jeff Walters, Rita Sherman, George Booth and Wade McCammond.

Kendall testimony

The District Attorney’s office, in particular Kendall himself, made the decision to reject the filing of the case based on the misdemeanor report filed by the Sheriff’s Department.

Kendall explained during his testimony that “in the grand scheme of the interest of the system” he had determined that the case should not be filed.

“It was not likely that we would determine whether or not a crime was committed and who committed it, and be able to prove it to a jury of 12 people,” Kendall explained. “Either both [Luman and McCurry] could have been charged or neither.” Kendall decided that no one should be prosecuted.

During her questioning, Luman’s lawyer Katie Bellomo, pointed out that there were no notes in the misdemeanor report that explained what Kerby had heard during the incident. Kendall agreed and said that a follow-up with Kerby would have been done if the case had gone to trial.

Kendall did not consider much from Mike Rhodes testimony in the report either. Rhodes, another Mono County employee, overhead the incident on Oct. 3, 2011, but was not in the room to see what occurred.

“So, you didn’t know much about this case when you made your decision, did you?” Bellomo asked.

Kendall stated he only knew what was in the report.

Kendall agreed that he could not rule out that Luman was acting only in self-defense by reading the report.

“These types of cases are difficult to sort out, witnesses report different things,” Kendall explained.

Kerby testimony

Bellomo examined Kerby first on June 13. She had him recount McCurry’s behavior over the years. Kerby explained that the aggressiveness began when McCurry was made a Supervisor. Prior to that time, Kerby and McCurry had been friends. Luman had testified in April that it seemed as though McCurry was under more stress when he became supervisor and “was afraid to be as social and funny.”

Kerby explained that McCurry’s behavior became so bad that at one point Kerby asked Fleet Services Supervisor Jerry Vande Brake if McCurry was having mental or drug problems.

“Vande Brake said that McCurry was ‘out of control’,” Kerby said during testimony. But over the course of the complaints, Vande Brake seemed to do little to stop McCurry’s actions.

Several meetings were held among the mechanics to discuss McCurry’s behavior, which included “screaming and yelling profanities at employees when he was upset,” Kerby said. He could not pinpoint when the meetings were held and who, besides Vande Brake, attended each one.

Kerby recounted the Oct. 3 incident the way he remembered it, pointing out that prior to the altercation, McCurry had been screaming into his [Kerby’s] face and bumping his chest into Kerby.

Kerby explained that he had gone to Vande Brake’s office that day to resolve his issues with McCurry for good. The week prior, McCurry had “flipped out on him” over a Kubota tractor and it was the first time Kerby said he had feared for his safety.

Kerby asked Luman to go with him in order to have a union brother there to witness the meeting with Vande Brake so that he could then make his way up the chain of command if Vande Brake again failed to do anything to stop McCurry.

Kerby told Luman that McCurry had called him a motherf-er behind his back. Mono County Counsel John-Carl Vallejo questioned whether Kerby had told Luman this just to get him riled up. Kerby said no.

Shortly after Kerby began his complaint to Vande Brake on Oct. 3, McCurry came to the doorway and Vande Brake told him to come in. Kerby continued his complaint.

“I didn’t get too many words out before Brett flew across the room and got in my face and started screaming ‘you’re a bold-faced f$@*ing liar,” Kerby testified. That was when the “chest bumping” began.

When Luman testified in April, he stated that McCurry did get in Kerby’s face that day in Vande Brake’s office, but since McCurry’s back had been to Luman at the time, he could not see whether or not he was actually touching Kerby.

Kerby stated that Vande Brake said there was nothing he could do about the situation and McCurry stopped bumping him after approximately 30 seconds.

The remainder of Kerby’s testimony was similar to Luman’s testimony two months ago. Kerby agreed that Luman’s comment about McCurry “falling down stairs” was a joke, not a threat, and when the combat ensued between Luman and McCurry, Luman was defending himself.

One item that was pinpointed during Kerby’s testimony was his claim that McCurry had come to the shop to harass him in the “middle of the night” on several occasions prior to the Oct. 3 incident. This was part of the reason the County claimed Kerby was lying because his timecards did not reflect him being at the shop in the middle of the night.

Bellomo, however, pointed out that the term “middle of the night” could be interpreted in various ways.

“Time doesn’t mean a thing to an emergency mechanic,” she said while questioning Kerby.

The issue came up again during Vallejo’s cross-examination. Vallejo had Kerby look through a pile of timecards from October 2010 through July 2011 and pull out those that he believed supported the middle of the night harassment.

The times recorded and whether or not Kerby was just on call or on duty seemed to vary.

The majority of Vallejo’s cross-examination was tense with Kerby at first so often talking back to Vallejo and making snide comments that Bellomo asked him to settle down. Later, Bellomo claimed Vallejo was badgering the witness when he didn’t get the answers he wanted.

One such occasion occurred when Vallejo asked Kerby if he had filed a claim for money damages against the County in excess of the three months pay he believed he should receive for wrongful administrative leave.

“Oh for God’s sake,” Bellomo exclaimed. “He filed a claim at my suggestion to ensure he receives a trial. He’s protecting his own interests.”

Vallejo, however, stated that the claim, which seemed to be in excess of $10,000 “goes to his [Kerby] continued motive to be dishonest.”

During his testimony, in defense of the County calling him a liar, he claimed that when he was interviewed by the York insurance investigators weeks after the incident he was “under duress” and that his comments were not recorded accurately. He claimed interviewer Steve Woods kept turning the recorder on and off during the interview.

“He would scold me because he didn’t like the way I was answering the questions,” Kerby said. His transcript says he didn’t understand the questions that were asked of him, but Kerby claimed he was simply confused by the way Woods was working the recorder.

“Hanson just let me talk,” Kerby said, in reference to Deputy Mark Hanson who took the initial Sheriff’s report shortly after the Oct. 3 incident.

Much of Kerby’s testimony included the words, “guessing,” “approximately,” and “maybe.” His testimony concluded on June 18.

The hearing will continue on Monday, June 25. Luman is expected to retake the stand briefly, and then the two lawyers will make their closing arguments.

Attorney Bellomo pulls pitch for putting client on administrative leave

During its regular meeting this past Tuesday, Mono County’s Board of Supervisors was to have taken up an agenda item, sponsored by Supervisor Tim Hansen, on the Reinstatement of Richard Luman. In particular, the item involved whether Luman could be placed on paid administrative leave, restoring his salary and benefits, pending a decision by the Personnel Appeals Board on the termination of his employment on December 13, 2011.

Luman’s Personnel Appeals hearing is one of three against the County regarding the disciplinary action that followed what the county deemed a mutual fight in a County workplace on Oct. 3, 2011. Apparently Luman’s attorney, Katie Maloney Bellomo, decided that it wasn’t wise to spread their legal resources too thin, and pulled the item.

Luman served as a Mechanic for Mono County for more than 15 years. On the morning of Oct. 3, he joined his co-worker Jim Kerby in their supervisor’s office. Kerby had asked Luman to join him as a witness to what he was going to report to Fleet Services Supervisor Jerry Vande Brake.

During the office meeting, a scuffle ensued between Road Operations Supervisor Brett McCurry and Luman. Afterward, Kerby was suspended, and McCurry and Luman were both terminated.

The hearings have been plagued by key ruling reversals, including what evidence and testimony would and would not be allowed, as well as heated exchanges between witnesses, attorneys, those involved in the altercation (Luman, McCurry, Kerby and Vande Brake), and even the tribunal hearing the appeals, including Hansen, Ken Goode and Ralph Obenberger, as well as various conflict of interest implications.

According to a statement read into the record by Board Chair Vikki Magee Bauer, Bellomo cited talks between International Union of Operating Engineers Local 39 representative Jerry Frederick and County Counsel Marshall Rudolph. Even if the Board wanted to hear the agenda item and take some form of action, Rudolph advised, the union thinks Bellomo’s request on behalf of her client qualifies for what’s called a “meet and confer process,” which would legally have had to be followed. It sounds rather simple and quaint, but as legally defined, “meet and confer” is fairly elaborate.

Essentially it’s a variation on collective bargaining, required by the courts before a judge will hear certain types of motions and/or petitions. Lawyers (and sometimes their clients) must “meet and confer” to try to resolve the matter or at least determine the points of conflict. Its benefits include reducing the time spent on arguments, and making lawyers and clients face the realities of their positions.

On the other hand, it also can prove to be a non-starter for the parties and their attorneys, especially when emotions involved run very high.

Rudolph said that the time and delay involved could actually end up longer than the entire appeal process. That drawback was one of the main reasons Bellomo deemed the item too cumbersome, and subsequently withdrew it from the agenda.

Luman’s hearing is set to continue on May 16.

Board briefs …

The Board unanimously voted to move its regular meeting next week, which would normally have been held in Mammoth, back to Bridgeport to be part of the commemoration of the 150th anniversary of the death of Mono County’s first Sheriff, N.F. Scott, along with all those law enforcement personnel who have lost their lives in the line of duty. The Board will participate in a ceremony starting at 11 a.m. in front of the Bridgeport Courthouse, followed by a barbecue, as part of the nationally National Law Enforcement Memorial Day, scheduled on May 15 this year.

The Town also adopted the County’s debt policy, but both Chair Vikki Magee Bauer and Finance Director Brian Muir emphasized that in now way does adopting the policy means the County has any intention of incurring or taking on any debt in the foreseeable future. In fact Muir said that based on his budget projections, it would be, under worst case circumstances, at least a couple of years or more before the County, which currently has no bonded debt, would have to even consider the possibility. Bauer added that extensive public and Board action would be involved in any sort of debt deliberations, assuming things even got to that point.

Dear Editor:

I am the attorney representing Dick Luman in the appeal of his termination by Mono County. I am taking the unusual step of writing about this proceeding before it is concluded because the case is the subject of considerable public discourse. Notwithstanding the excellent reporting of Lara Kirkner for The Sheet, there are certain key facts that were not captured in her reports. I offer the following information, all from testimony and official documents in the case,  to supplement and clarify information in The Sheet articles:

*  On October 3, 2011, a physical altercation occurred between Dick Luman and Brett McCurry at the Bridgeport Road Shop.  Dick Luman suffered a fractured rib and had a hernia operation as a result. Brett McCurry suffered an abrasion/cut on his nose when his glasses came off.

* Mr. Luman and Mr. McCurry each accuse the other of being the agressor in the altercation.

*  There were three (3)  eyewitnesses to the incident:   Jim Kerby (Mechanic III), Mike Rhodes (Parts Dept), and Jerry Vande Brake (Fleet Services Supervisor).

*  Eyewitness Jim Kerby provided sworn testimony when interviewed by Mono County about the incident.  He testified McCurry grabbed Luman “pushed him back into the corner of the door” and “grabbed him, and spun around, and threw him into the tool chest on the outside of the office.”  Mr. Kerby provided a consistent account when interviewed by Mono County Sheriff’s Department on the morning of the incident.  In June, Mr. Kerby will testify in this proceeding and detail what he witnessed.

*  Eyewitness Mike Rhodes has testified that he saw Brett McCurry shove Dick Luman against the tool cabinet:  ”…next thing I knew I heard scuffling, and I looked up and Brett had Dick pinned up against the specialty tool bins outside of Jerry’s door.”  Mr. Rhodes provided a consistent account to the Mono County Sheriff’s Department on the morning of the incident, and has twice provided sworn testimony.

* Eyewitness Jerry Vande Brake is the supervisor in whose office the physical assault occurred.  The Sheriff’s Department report taken on the date of the incident summarizes Vande Brake as reporting Luman was “walking towards the door to leave but Brett McCurry was in the doorway not letting him out” and he witnessed “as Brett grabbed Dick’s shoulders and shoved him into the office and into the book shelves.”  A supplement to Sheriff’s report was written after Deputy Hansen was directed to review the transcripts of interviews conducted by an investigator for Mono County’s workers comp insurance company.  The Supplemental Sheriff’s report states “…it appears that Jerry Vande Brake’s statement in the transcript differed from his initial statement to me on the day of the incident”.  In his testimony a week after the incident, Vande Brake described Luman’s approach to the door as “…it was pretty rapid in what I would consider an aggressive move.”

* According to the report of the Sheriff’s Department, the physical altercation occurred when Jim Kerby and Dick Luman were in the office of their supervisor Jerry Vande Brake. According to the Sheriff’s Dept. report, Vande Brake indicated the meeting was to discuss Kerby’s complaint that “he had a problem with Brett McCurry the Thursday before and he and Dick needed to talk to him [Vande Brake] about the incident.”  Vande Brake related that Kerby “was making a complaint that Brett has been constantly intimidating him and causing a lot of problems in the shop.”

*  Joel Erickson, Lead Mechanic under Vande Brake, testified before the Personnel Board that group meetings had been held with him, Vande Brake, and the mechanics to discuss concerns about McCurry’s behavior at work and the negative impact it had on the work environment.  Luman confirmed that he had attended at least one of the meetings. Vande Brake testified that he did not document the complaints of the mechanics and did not document the meetings.

The hearings resume on May 16 for a half day, to be followed by the anticipated conclusion of the hearings in late June. Upon conclusion of the hearings, the Personnel Board, composed of Undersheriff Ralph Obenberger, Supervisor Tim Hansen, and Ken Goode,  will decide whether the County was justified in terminating Dick Luman as a result of the incident on October 3, 2011.

Katie Maloney Bellomo
Attorney for Dick Luman

Is Mono County trying to cover something up or is defense attorney Katie Maloney Bellomo trying to make the personnel hearing of Dick Luman as burdensome and costly to the County as possible? Those were the arguments that Bellomo and County Counsel John-Carl Vallejo bickered about on Wednesday morning as the hearing continued into its fifth day.

The parties reconvened on April 18, following a cancellation of the April 13 hearing date due to weather.

Last week the personnel appeals board had voted to overturn a previous ruling it had made, and decided that it would now allow new evidence not initially presented to come forward in the appeal. This determination flung the hearing into turmoil, and Bellomo had requested time to regroup and decide whom else she would need to subpoena for questioning.

Vallejo stated he had one document and one additional witness, District Attorney George Booth, to add to his case.

By Wednesday Bellomo had requested 10 additional subpoenas in addition to the more than 10 she had requested at the beginning of the hearing, which was the reason behind Vallejo’s comments about burden to the County.

“Ms. Bellomo is on a fishing expedition; she’s just subpoenaing everyone,” Vallejo said. “The County is just worried about an undo waste of resources.”

Bellomo, however, pointed out that it was the County that asked that new evidence be allowed.

“I didn’t move to expand the scope of the case,” she said. “It’s not a delay tactic on our end.”

She added, however, that now that the door had been opened she wanted to investigate everything thoroughly.

“What’s being hidden here, what’s going on behind the scenes,” Bellomo asked. “Is the Sheriff’s Department catering to one of the parties in the case?”

Bellomo was referring to the reports taken by the Sheriff’s Department at the time of the incident that were then transferred to the District Attorney’s office. The validity of those reports in conjunction with the transcripts from the York Insurance investigation was brought into question.

Since day one of the hearing, Bellomo has raised questions about the outside interviewer who was brought in to investigate the incident in relation to workers compensation. Steve Woods, the investigator brought in, was employed by York Insurance Company, which had some connection to the County. During her cross examination of Mono County CAO Jim Arkens in the first week of the hearing, Bellomo had asked whether or not York was the County’s insurance agency dealing with worker’s compensation at the time of the investigation. Arkens stated that York was not the insurance company but the County’s third party administrator.

“Trindel is our insurance company,” Arkens said. “York doesn’t determine if we will pay a claim, they just process it once Trindel decides.”

Vallejo saw this as one of the reasons why the County needed to defend itself against alleged bias, which was why he fought for the new evidence to be allowed.

On Wednesday, the appeals board approved nine of the 10 new subpoenas Bellomo was requesting. The only one they did not allow her to issue was the subpoena for Undersheriff Ralph Obenberger.

Obenberger is sitting on the appeals board, and as County Counsel to the Board, Stacey Simon pointed out, “If Mr. Obenberger is going to be subpoenaed then it puts the Board in an awkward position.”

Bellomo, however, felt that Obenberger should step down from the Board since he would be called to judge people in his own department.

“He should have stepped down from the start,” Bellomo said. “The appearance of propriety and fairness is very important as a judge. You don’t get to judge if you made decisions in the case. It is necessary to call Obenberger because whatever is going on here goes to the top.”

However, she conceded to the Board’s decision to have him carry on at the dais.

Testimony

One of the witnesses whom Bellomo called on Wednesday was Deputy Mark Hanson. Hanson was responsible for interviewing the parties present at the incident in the days directly after it occurred. He spoke with Brett McCurry, Jerry Vande Brake, Mike Rhodes, Jim Kerby and Dick Luman.

Hanson wrote up a report detailing these interviews. He turned in his report to his superiors at the Sheriff’s Department. Since parties involved in the incident wanted to prosecute one another, the report was passed on to the District Attorney’s office. According to Hanson, this was standard protocol.

In that original report, Hanson wrote that McCurry was the aggressor, not Luman based upon recollections from all parties except McCurry.

“Luman acted in self defense based upon the witness statements I received,” Hanson said. “McCurry blocked Luman’s exit from the office, which caused the hands-on approach. If McCurry had let Luman leave the room, the fight would not have happened.”

After Woods interviewed the parties later on, Hanson was asked to listen to the transcripts from these interviews and write a supplemental report on anything that had changed from his original interviews.

“Jerry Vande Brake’s story changed the most significantly,” Hanson testified. “Which is why I wrote the first supplemental report.”

According to Hanson, when he interviewed Vande Brake his account of what had happened was that McCurry had blocked Luman from leaving the room. However, in the transcripts from the Woods’ interview, Vande Brake stated that Luman had walked rapidly toward McCurry and that Luman was the aggressor.

“If Vande Brake had said this during my interview with him, it would have changed the outcome of my report,” Hanson said.

Hanson concluded by saying that by the end of the incident he felt that it was mutual combat because both men were holding onto each other saying, “let go.” He clarified, however, that mutual combat doesn’t necessarily mean that both people are being aggressive.

Several more witnesses were called following Hanson. The day was expected to end with additional questioning of Vande Brake.

Due to scheduling conflicts the hearing will not resume until June.

Justice may be blind but it shouldn’t also be deaf and dumb.

That was a sentiment expressed publicly by Mono County citizen Jeff Hansen during day four of Dick Luman’s Personnel Appeals Hearing. Luman’s hearing is one of three appeals against the county regarding the disciplinary action that followed what the county deemed a mutual fight in the workplace on Oct. 3, 2011.

A week into the hearing, Personnel Appeals Board member Ken Goode changed his mind on an important Board ruling, seemingly in an effort to not sit deaf and dumb on the dais.

Previously the Board had voted 2-1 to block any new evidence materials from being used in the hearing that had not previously been used in Luman’s Skelly Hearing (A Skelly Hearing is part of the the county’s due process obligation prior to an employee termination). Goode and fellow Board member Tim Hansen originally voted to keep new materials out, while the third, Ralph Obenberger was amenable to allowing certain new evidence to be presented. Obenberger felt that anything that occurred after Oct. 3, 2011 should not be allowed but any supporting materials that led to Luman’s termination should be allowed.

Even with the extensive discussion and vote from the Board on that first day, the issue continued to come up.

“We’re still just accusing him of getting into a fight and lying about it,” John-Carl Vallejo, who is representing the county in the hearing, had stated on that first day. “We’re talking about supporting evidence. The Skelly hearing doesn’t require every shred of evidence to be given to the employee.”

Stacey Simon, who is serving as advisory counsel to the Board, agreed that there is no rule saying every shred of evidence must be presented at the Skelly.

“It’s a fast process,” Simon said. “The employee just needs a reasonable opportunity to be heard at the Skelly.”

But Luman’s attorney, Katie Maloney Bellomo strongly disagreed.

“You must give an employee notice and allow them to defend themselves before action is implemented,” Bellomo said on April 4. “I’m going to argue on the basis of the Skelly case, that’s why the employee receives a Skelly hearing. You can’t enter new evidence because his job has already been terminated and he therefore wouldn’t have the opportunity to be heard before his property [job] was removed.”

Bellomo had also pointed out last week that new evidence would allow her to subpoena more witnesses and present new materials as well, which would greatly lengthen the hearing.

Even with the potential of dragging the hearing on into an unforeseeable future, Goode gave in to Vallejo when the topic was raised for the third time on April 11.

“There are incredible allegations against the county and it will need to defend itself against the alleged bias,” Vallejo said on Wednesday. “We need to reopen the evidence issue from the Skelly hearing.”

Vallejo explained that if the county were prevented from bringing in new evidence, it would be a huge issue for its case. Vallejo claimed that allegations regarding Luman’s workers compensation denial and its relation to an alleged bias from the county’s insurance company were the items to which he referred.

Goode seemed to hear him. He called for a closed session between Board members.

The Board emerged after lunch with a new split vote. It was now 2-1 in favor of allowing new evidence materials. Hansen remained against changing the original ruling, claiming that it protected the county.

Vallejo said he expected to have one new document and one new witness for the county under the Board’s new ruling. The new witness is expected to be Mono County District Attorney George Booth.

Bellomo, however, claimed she would now need time to restructure her argument of the case.

“I was not at all prepared to go forward on this changed ruling,” she said. “I strongly feel that the [new] ruling is incorrect.”

After a half hour break for Bellomo to gather her thoughts, she told the Board she was not ready to move forward any further that day.

“You will be reopening the county’s case to put in this new information, so I won’t proceed until the county completes its case,” she said.

Vallejo, however, argued that the county would merely be rebutting evidence that alleges the county is biased.

“The county’s case is closed, we would just be presenting rebuttal evidence and witness,” Vallejo said. “The county has the burden of proof here, just like in court, so we go first and last.”

Simon, however, pointed out that according to Mono County’s Personnel System Code, both parties are allowed the opportunity to rebut.

“The appointing authority or department head shall present its evidence first. The employee may then present evidence and each shall then have the right to present evidence in rebuttal,” according to section 2.68.302, F in the code.

The hearing will need more time than originally expected. The Board recessed until Friday afternoon, April 13 to give Bellomo time to figure out whom else she might like to subpoena, who she will need to re-subpoena, and to decide if there is any new evidence she might want to present.

With scheduling conflicts between all interested parties, the new timeline for the Luman hearing may very well stretch into May, effectively putting Jim Kerby’s hearing on hold until Luman’s is completed. The evidence ruling from the Board will apply to Kerby’s hearing as well.

At the start of the hearing it was explained that the Personnel Appeals Board acts like a judge. Judges reserve their rights to change their rulings at any time, and therefore the same prerogative is given to the Appeals Board.

Luman’s testimony

Luman originally took the stand to tell his side of the story on Friday, April 6. Brett McCurry, the other individual involved in the incident that Mono County deemed a mutual fight, had been on the stand on April 4 (see last week’s story “Luman Challenges Termination”].

However, Luman did not get to say much on April 6. A comment that the Appeals Board Chairman, Tim Hansen made prompted Goode to question Hansen’s impartiality. At first, Goode requested that the chairmanship be transferred to Obenberger, but then he conceded to have the clerk transcribe Hansen’s comments for further review. The Board recessed until Monday, April 9, when, after review of the transcript, Goode withdrew his motion to remove Hansen from the Chair’s seat.

The comment in question was transcribed as follows, “I mean this is good testimony that I’ve been awaiting for three days to hear actual facts about this case opposed to: he drove fast and squirted cinders on Mr. Arkens’ car. I mean, you know, we’re getting down to facts …”

Goode had been concerned that Hansen was being prejudicial. He felt Hansen was saying that with Luman’s testimony they were finally hearing the truth. Hansen claimed he just meant it was valuable and relevant testimony.

With the Board remaining as originally seated, Luman continued his testimony on April 9.

Bellomo started her questioning by asking about Luman’s injuries from the Oct. 3, 2011 incident. Luman stated he had suffered a hernia, which required surgery, as well as a broken rib.

Bellomo then had Luman testify to McCurry’s character. Luman stated that he had witnessed McCurry in confrontations with other employees on several occasions. Luman also testified that the mechanics had met at least twice to discuss McCurry’s aggressiveness with Jerry Vande Brake, their supervisor.

Luman’s testimony differed from McCurry’s as well as Vande Brake’s in several ways. Perhaps most significant was when it came to the alleged threat that Luman was said to have made to McCurry prior to the start of the alleged fight.

McCurry had fallen down his stairs at home a month or so before the Oct. 3 incident. He claimed he had tripped over his dog, but according to Luman, the employees at the shop were making jokes behind McCurry’s back regarding the incident because they believed McCurry had been drunk and had fallen down the stairs because of his intoxication.

On the day of the Oct. 3 incident, Luman testified that shortly after McCurry came into Vande Brake’s office and Kerby began to explain his allegations against McCurry, McCurry called Kerby a bold-faced liar and got in his face, saying “You have a problem with me and I want to know what the f**k it is.”

McCurry eventually backed off and that, according to Luman, was when he said, “And I suppose you didn’t call Mosley [another employee] and I motherf**kers, either.”

McCurry allegedly told Luman he would have the balls to say it to Luman’s face if he was going to say it.

That’s when Luman said, “If you had the balls to say it, you’d probably be falling down your stairs again.”

While McCurry and Vande Brake took this as a threat, Luman testified that he meant it as a wisecrack.

“I meant that if he had the balls to say it, it would probably be because he was drunk and his mouth would be loose,” Luman said. He claimed he was referencing the wisecracking that had been going on in the shop regarding McCurry’s previous accident.

Luman then proceeded with the rest of his testimony about the alleged fight, which he claimed was actually an attack by McCurry. The recollection of how the incident occurred varied greatly between the two men’s testimonies.

Kerby, the fourth party in the room during the time of the incident was suppose to testify in the Luman hearing on Wednesday, but due to the Board’s change in ruling, had not yet been given the opportunity.

Board member’s impartiality called into question … again

Dick Luman briefly took the stand in his own appeals hearing on the afternoon of April 6. But before he could really get into his testimony the bias of one of the Personnel Appeals Board members was called into question. The question forced the hearing into a premature recess until Monday, April 9.

As Luman was being asked by his lawyer, Katie Maloney Bellomo, to recount some occasions in the workplace that showed the demeanor of Brett McCurry, Luman’s alleged assailant, Mono County’s Counsel, John-Carl Vallejo objected to prior instances of conduct being used to determine the incident at hand.

The incident at hand is a fight that occurred between Luman and McCurry in the Mono County workplace on Oct. 3, 2011. Luman contests that it was not a fight, but that he was assaulted and then unfairly terminated from the County. Read The Sheet’s earlier story by clicking here.

The Appeals Board Chairman, Tim Hansen disagreed with Vallejo.

“You’ve gone back into everyone’s behavior,” Hansen said, referring to a story that Vallejo had earlier in the hearing asked Mono County CAO Jim Arkens to recount about Luman’s erratic driving behavior. The story showed Luman in a negative light.

Hansen then stated that with Luman’s testimony the Board was finally getting down to the facts after three days of listening to other testimony.

Shortly after his statement, his fellow Appeals Board member, Ken Goode asked that the three Board members be allowed to meet briefly in closed session.

When they returned from behind closed doors, Goode explained that he had raised a concern about Hansen continuing as the Board Chairman. He made a motion that Hansen step down as Chairman and that the third board member, Ralph Obenberger, be appointed the position.

It came out that Hansen’s comment about finally hearing the facts had seemed prejudicial to Goode and made him think twice about Hansen’s position. He felt that Hansen was making the statement that now that Luman was on the stand, those listening to the hearing would finally be getting the truth.

It was the second time in three days that Hansen’s impartiality was called into question. On the first day of the hearing, Vallejo had objected to Hansen sitting on the Board because of his friendships with many of the people involved in the hearing.

On Friday afternoon, Hansen responded to Goode’s concern by saying that his comment had been misinterpreted and that the stuffy room and the long day were making it difficult to concentrate and express his thoughts accurately.

Two questions then hung in the air: what were the exact words Hansen had used, and was a change of Chairman in the middle of the hearing allowed?

The Board decided to take a recess until Monday morning in order to allow Clerk/Recorder Lynda Roberts to download the digital recording of the hearing and transcribe verbatim the words that Hansen had spoken.

The hearing will reconvene Monday, April 9 at 9 a.m. at the Bridgeport Courthouse.

A fight in the Mono County workplace on Oct. 3, 2011 led to the termination of two public works employees and a three-month suspension without pay for a third. Some County employees are pointing to this incident as a demonstration of problems within County management. Problems that have been described by some as “management through intimidation.”

Dick Luman and Brett McCurry were terminated following the Oct. 3 incident. Jim Kerby was put on suspension.

This week, the Mono County Personnel Appeals Board, made up of Tim Hansen, Ken Goode and Ralph Obenberger, heard an appeal of Luman’s termination.

Luman served as a Mechanic for Mono County for more than 15 years. On the morning of Oct. 3, he joined his co-worker Jim Kerby in their supervisor’s office. Kerby had asked Luman to join him as a witness to what he was going to report to Fleet Services Supervisor Jerry Vande Brake.

The week prior to Oct. 3, tensions between Kerby and Road Operations Supervisor Brett McCurry had come to a head. According to McCurry, who took the stand on Wednesday, Kerby felt that McCurry made him look bad in front Public Works Assistant Director Jeff Walters regarding an issue over a Kubota tractor.

According to McCurry, Kerby was one of a handful of employees who took issue with the fact that McCurry served as both a union representative as well as a supervisor.

“Jim was one who had issue with this,” McCurry stated while under oath. “He gave me a lot of dirty looks and blank stares.”

McCurry went on to say that Luman had been displeased with the union contract recently negotiated with the County.

“He thought the union should have worked harder to get a better contract,” McCurry explained.

Throughout the County’s questioning of McCurry on Wednesday, it became apparent that Kerby had often complained that McCurry was harassing and threatening him in the workplace.

The day following the Kubota incident, McCurry said he asked Kerby what was wrong because he sensed Kerby was bothered by something. Kerby stated his concern about being made to look bad.

“I told him that I had just been offering suggestions,” McCurry testified.

The discussion then became heated and McCurry claimed that Kerby told him to “get the f*** out of my shop.”

This was the situation that Kerby planned to discuss with Vande Brake on Oct. 3.

It also became apparent during testimony on Wednesday and Thursday that besides asking Luman to be his witness, Kerby had also told him that McCurry was calling him a motherf***er behind his back.

Shortly after Kerby and Luman began talking with Vande Brake on Oct. 3, McCurry also showed up at Vande Brake’s office. Vande Brake said he waved him into the room in an effort to air the disagreement out and bring it to closure.

According to McCurry and Vande Brake, McCurry stood in the doorway of Vande Brake’s small office to listen.

The question of whether or not he had been calling Luman a motherf***er was raised. McCurry said he had not been calling Luman that and if he had he would have said it to his face.

Luman then allegedly said “If you had the balls to do that you might find yourself falling down the stairs again,” in reference to an accident McCurry had a month earlier when he fell down the stairs at his home.

According to McCurry, he told Luman that he took that as a threat. He then testified that Luman walked toward him, grabbed him by the shirt and pushed him out of the office into a bookcase, and that was when the fight began.

Vande Brake agreed that he took what Luman had said as a threat, but testified he did not see who touched whom first and was unsure who started the fight.

Either way, according to testimony from Walters on Thursday, both men were at fault for violating the County’s zero tolerance for workplace violence policy. After interviewing the parties involved, Walters believed neither was acting in self-defense and neither was a victim in the situation. Both McCurry and Luman were equally accountable which is why they were both terminated, according to Walters.

As for Kerby, he was put on suspension because of holes in his story when he was interviewed following the incident, according to Walters. Kerby’s credibility became damaged when he claimed McCurry had bumped Kerby’s chest with his own. Neither McCurry nor Vande Brake had alluded to this happening when they were questioned following the incident.

Kerby also seemed to have trouble understanding and answering the questions posed to him during the investigation, according to Walters, which led him to question whether or not Kerby was telling the truth.

Katie Maloney Bellomo, legal counsel for Luman worked on highlighting the friendship between McCurry and Vande Brake. She also directly asked Vande Brake if he liked Luman to which Vande Brake responded, “no,” but added that they had learned to work together.

Bellomo was expected to further present her case in the coming days.

At press time, McCurry, Vande Brake, and Walters had all taken the stand and given testimony. The hearing was expected to proceed through Friday, April 6, and potentially into Monday, April 9. Jim Kerby’s hearing was scheduled to begin on April 9, but was expected to be postponed until April 11 if Luman’s had not been completed prior to closure of business on Monday.

McCurry will also have an appeals hearing but it is not scheduled until June.

Initially Luman’s hearing was only anticipated to last for two days, but several procedural and housekeeping issues delayed things. The entire morning of April 4 was spent discussing whether or not materials that had not been made available at the Skelly hearing could be introduced at the Appeals Board Hearing. Ultimately the Board decided 2-1 to not allow any new materials or evidence to be introduced.

According to Mono County Counsel Stacey Simon, the appeals board hearing is part of the County’s due process for an employee post-termination. Prior to termination, the employee is allowed a Skelly hearing, which is the County’s due process for an employee prior to termination. If the employee is still dissatisfied following the outcome of the appeals board hearing, he or she would then appeal their case to a court of law.

Also on the morning of April 4, John-Carl Vallejo, County Counsel representing the County in the hearing, stirred the pot by objecting to Hansen’s inclusion on the Appeals Board.

“The County needs a fair hearing too,” Vallejo stated. He asked that Hansen recuse himself from the Board because he is friends not only with Luman, but also Kerby as well as Bellomo, who will also represent Kerby. *Note: An earlier version of this story stated that Vallejo also wanted Hansen to recuse himself because he was a Mono County Supervisor. In fact, Vallejo stated that he was more hesitant to make the objection because Hansen is a supervisor.

Vallejo also stated that Hansen had been speaking ill of CAO Jim Arkens in public, adding to what Vallejo believed was a bias on Hansen’s part since Arkens was involved in the disciplinary action among the men.

“Your accusations are irrelevant,” Hansen said. “You are acting as a poor loser because things aren’t going your way. I’ve known Dick a long time but that doesn’t mean I can’t be impartial. Arkens is not even connected to this. This is out of hand. I don’t intend to step down but I will let my fellow board members make the call.”

Following a closed-door discussion, Obenberger and Goode stated that they felt Hansen could be fair and wanted to keep him on the Board.

Luman was expected to take the stand either late Thursday afternoon or Friday to give his side of the story, which he told The Sheet “would be eye-opening.” Read about his testimony here at www.thesheetnews.com.