Removing the blindfold
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.
