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.
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.
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.