Jackson v. Besecker et al

BRIEF in Opposition to 36 MOTION for Summary Judgment and Brief in Support

D. Colo.July 20, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 15-cv-01182-JLK RICHARD SCOTT JACKSON, Plaintiff, v. RICHARD BESECKER, individually and in his official capacity as Sheriff of Gunnison County, Colorado Defendant. RESPONSE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT Plaintiff RICHARD SCOTT JACKSON, through his counsel ROGER F. SAGAL of the law firm SAGAL LAW GROUP, LLC, respectfully responds in opposition to Defendant’s Motion for Summary Judgment. I. Introduction In 2014, Plaintiff Richard Scott Jackson stood for election and asked the voters of Gunnison County to elect him Sheriff. His opponent was the incumbent Sheriff, Defendant Richard Besecker. The candidates were both veterans of the Gunnison County Sheriff’s Office who had worked together for many years. Prior the 2014, it had been a long time since there was a contested election for Gunnison County Sheriff. Neither candidate had participated in a contested election before. The campaign season, which ran roughly from February of 2014 to election day on Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 1 of 77 2 November 4, 2014, was in many respects a fine example of the democracy at work. Candidate Besecker hit the nail on the head when he said in a newspaper interview in April of 2014 that the “way to celebrate the privilege of voting is to give people a choice.” [Depo. Ex. 75]. Privately, Defendant seethed. He was, in his words, “incensed” by Plaintiff’s campaign. He kept a diary of his thoughts about Plaintiff, the campaign, and Plaintiff’s supporters that reveal his true state of mind. Defendant concluded that Plaintiff “overstayed his welcome in Gunnison”. [See Depo. Ex. 78, ¶ 17, attached to Doc. 32]. By mid- October, Defendant was consulting with Gunnison County lawyer Art Trezise about firing Plaintiff. Mr. Trezise advised Defendant that terminating Plaintiff would not be simple and easy. [Ex. 1, attached to Doc. 39]. On November 4, Defendant won the election by a narrow margin of 112 votes. Soon after, with the assistance of Gunnison County attorneys he adopted an office policy specifically to facilitate Plaintiff’s termination. The policy was drafted with the intent to protect Defendant from disclosing the reasons for Plaintiff’s termination. In December 2014 Defendant offered Plaintiff a choice: resign or be terminated. Plaintiff refused and continued to report for duty. Defendant then attempted to develop pre-textual reasons to terminate Plaintiff because he knew that his actual reasons for terminating Plaintiff were constitutionally suspect. Plaintiff was eventually terminated on March 17, 2015. When Plaintiff asked Defendant to specify what he had done to bring on his termination, Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 2 of 77 3 Defendant refused to tell him. Defendant is not entitled to qualified immunity because the law protecting Plaintiff’s rights to political speech and political association were clearly established at the time of Plaintiff’s termination and because Defendant knew or had reason to know that Plaintiff’s termination was illegal. Defendant is not entitled to summary judgment on Plaintiff’s constitutional claims because there are material disputed issues as to whether Defendant violated Plaintiff’s right to political speech and political association. Defendant is not entitled to summary judgment on Plaintiff’s ADEA claims because Plaintiff as set forth a prima facie case of age discrimination and there are material disputed issues as to whether Defendant terminated Plaintiff due to his age. Defendant is not entitled to summary judgment on Plaintiff’s claim based on C.R.S. §24-34-402.5 because Plaintiff’s off-duty, legal activities do not fall within an exception to the statute. Defendant is not entitled to summary judgment on Plaintiff’s claim based on C.R.S. § 30-10-506 because Plaintiff has standing to bring such a claim. Finally, although Defendant’s motion can and should be denied based on the record currently before the Court, pursuant to Fed.R.Civ.P. 56(d), Plaintiff seeks permission to supplement this response, if necessary, based on the Court’s determination as to whether Mr. Trezise may be deposed (see Doc. 39), David Baumgartner’s deposition, and Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 3 of 77 4 Defendant’s production of additional documents relating to these two witnesses. II. Response to Defendant’s SUMF 1. Plaintiff admits Defendant’s SUMF, ¶ 1. However, Plaintiff denies that his candidacy for Gunnison County Sheriff violated any policy, procedure, goal, or vision of the Gunnison County Sheriff’s Office. [Ex. 1, Jackson Aff. ¶ 2]. Plaintiff further denies that his job as Patrol Lieutenant required a duty of political loyalty to Defendant. [Ex. 1, Jackson Aff. ¶ 2]. 2. Plaintiff admits having a brief conversation with Defendant after Plaintiff announced his candidacy. Plaintiff recalls both candidates agreeing that it was a good thing that their respective candidacies provided the citizens with a choice for the next sheriff. [Ex. 1, Jackson Aff. ¶ 3]. Defendant and Plaintiff did not agree on what would be publicly said and what not would be said during the course of their campaigns. [Ex. 2, Besecker Depo., p.78:10-13]. Plaintiff never told Defendant that he would not state his views on how he thought the Sheriff’s Office could be improved. [Ex. 2, Besecker Depo., p.78:14- 17]. Plaintiff never told Defendant that he would not say anything that could be perceived by the public as critical of Defendant. [Ex. 2, Besecker Depo., p.78:18-25]. Defendant made no such promises to Plaintiff. [Ex. 2, Besecker Depo., p.79:1-4]. Plaintiff denies promising to run, in Defendant’s words, a “clean” campaign. [Ex. 1, Jackson Aff. ¶ 3]. Defendant testified with uncertainty as to what allegedly was discussed in reference to a “clean” campaign. He stated that “perhaps” the definition of that term Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 4 of 77 5 was established in the conversation but that the definition was “assumed” by him. [Ex. 2, Besecker Depo., pp. 64:24-65:22]. To Defendant, a “clean” campaign did not necessarily mean that the candidates would not be critical of each other. Defendant admitted that he was critical of Plaintiff during the course of the campaign. [Ex. 2, Besecker Depo., p. 79:23-25]. Plaintiff denies publicly questioning Defendant’s credentials or suggesting that Defendant misrepresented his number of years in law enforcement. [Ex. 1, Jackson Aff. ¶ 4]. Defendant’s Brief fails to specify any statement that Plaintiff made during the course of the campaign that was proven to be false or misleading. Defendant’s sworn answers to written discovery requests asking to identify all statements made by Plaintiff during the election that Defendant contends were factually inaccurate fails to include anything about Defendant’s credentials or years in law enforcement. [Ex. 3, Defendant’s December 1, 2015 Answers and Responses to Plaintiff’s First Set of Interrogatories and Requests for Production of Documents, see Response to Interrogatory 3, p. 4-5]. Further, Defendant’s interrogatory response fails to identify any factually inaccurate statements that Plaintiff himself made during the course of the campaign. Id. 3. Plaintiff denies that he prepared and that he or his campaign published the following statements in their campaign materials disseminated to the public: “Let’s end the hesitancy of our citizens to contact the Sheriff’s Department” and “Let’s end the atmosphere of assumed bullying”. Those statements were contained in a draft campaign flyer that was Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 5 of 77 6 never released. On the other hand, the statement: “Let’s begin to generate a safe and secure county where everybody feels respected and fairly treated by law enforcement” was included in flyers that were published by Plaintiff’s campaign. [Ex. 1, Jackson Aff. ¶ 5]. 4. Plaintiff admits that Undersheriff Barnes wrote a letter to the newspaper during the campaign supporting Defendant and criticizing Plaintiff. 1 Plaintiff disputes Undersheriff Barnes’ claim in the letter that Plaintiff misrepresented his credentials and training during the campaign. [Ex. 1, Jackson Aff. ¶ 6]. Plaintiff was, and remains, trained in firearms instruction, diver certification, and hostage negotiation. Nevertheless, Plaintiff supports Mr. Barnes’ First Amendment right to publish the letter. Id; [Ex. 4, Barnes Depo., pp.168:9-169:14]. 5. Plaintiff admits that the ending of the victim’s advocate program was a major issue of public interest during the campaign.2 Plaintiff denies that he failed to adequately investigate the reasons for the ending of the program. [Ex. 1, Jackson Aff. ¶ 7]. The Director of the Victim’s Advocate Program, Connie Carter, published a letter to a local newspaper on October 3, 2014 explaining her views as to the reasons for the elimination of the program. Plaintiff spoke directly to Ms. Carter about the elimination of the program and made campaign statements based in part on those discussions. Id. 1 Undersheriff Barnes was not terminated, disciplined, or reprimanded by Defendant for publicly stating his views on the election. [Ex. 4, Barnes Depo., pp.173:13-174:21]. 2 See also ¶¶ 78-79, 81 below (further discussing the nature of the political speech exercised during the campaign by both parties). Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 6 of 77 7 6. Plaintiff admits that the Art Trezise, the assistant County Attorney at the time, publicized his views as to the reasons why the victim’s advocate program was eliminated. Plaintiff disagreed with those views based on his discussions with the victim’s advocate, Connie Smith. [Ex. 1, Jackson Aff. ¶ 8]. Plaintiff continued to campaign on the need to reopen the Victim’s Advocate Program for the benefit of Gunnison County citizens. Id. 7. Plaintiff admits that the elimination of the Crested Butte substation by Defendant was another major issue of public interest in the campaign. Plaintiff denies failing to investigate the reasons why the substation was eliminated. He talked to John Gallowich (a former deputy with the Sheriff’s Office who worked at the Crested Butte South office) about the costs of the office, trying to understand why it would be closed. He understood that John had negotiated the lease with the CB South Homeowners Association. John told Plaintiff that the Sheriff’s Office paid a minimal rent, about $150.00 a month. The Association covered all the costs of the office, heat, electric, insurance and maintaining it. The office had been in operation for approximately 8 years. [Ex. 1, Jackson Aff. ¶ 9]. 8. See Plaintiff’s response to SUMF ¶ 7. 9. Plaintiff admits that he believes at times Defendant was not a good leader, that at times he ran a department in which citizens were hesitant to contact the police, that at times he allowed an atmosphere of bullying, and that at times he managed based on fear and intimidation. [Ex. 5, Jackson Depo., p. 230:11-25]. 10. Plaintiff admits SUMF, ¶ 10. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 7 of 77 8 11. Plaintiff denies that his announcement that he would be running for Sheriff and the ensuing campaign caused disruption in the Sheriff’s Office at any time.3 The allegation that the operations of the Sheriff’s Office were “disrupted” is directly contradicted by the testimony Undersheriff Barnes, Defendant, Sergeant Travis Dooley, Sergeant Mark Mykol, former jail deputy Christina Mellott, former patrol deputy Warren Taylor, former jail deputy Duane Sponable, and former jail deputy Denim Starnes. Undersheriff Barnes, Defendant’s second-in-command, is unaware of any instance in which the Sheriff’s Office failed to perform its duties as a result of Plaintiff’s campaign. [Ex. 4, Barnes Depo., p. 161:17-20]. Undersheriff Barnes is unaware of any instance in which the Sheriff’s Office failed to answer a call or investigate a crime as a direct result of Plaintiff’s running for Sheriff. [Ex. 4, Barnes Depo., pp.161:21-162:5]. Nobody employed by the Sheriff’s Office ever refused to work because Plaintiff was running for sheriff. [Ex. 4, Barnes Depo., p.166:12-14]. Undersheriff Barnes testified that there was no instance in which the fact that Plaintiff was running for sheriff caused disruption. [Ex. 4, Barnes Depo., p. 165:17-21]. During the campaign, Plaintiff continued to do his job. [Ex. 4, Barnes Depo., p. 162:6-11]. Plaintiff never said to Undersheriff Barnes or anyone else that because he was 3 Several paragraphs in Defendant’s SUMF reference allegations of office “disruption”. Plaintiff’s response to ¶11 references evidence of a lack of disruption during the time period between February 20, 2014, when Plaintiff announced his candidacy, and November 4, 2014, the date of the election. His response to ¶ 34 references evidence of a lack of disruption during the time period between November 5, 2014 and his termination on March 17, 2015. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 8 of 77 9 campaigning for sheriff he wasn’t going to do his job at the Sheriff’s Office. [Ex. 4, Barnes Depo., p. 162:12-15]. Defendant stated in a newspaper interview in April 2014 that he and Plaintiff had almost daily communication and that, by doing so, the Department can be reassured of its stability. [Ex. 2, Besecker Depo., pp. 84:3-85:6; See Depo. Ex. 75]. Defendant admits that he cannot think of any specific instance where someone complained that Plaintiff was absent and therefore they had to take up Plaintiff’s responsibilities. [Ex. 2, Besecker Depo., p. 98:17-20]. Defendant knows of no specific instance in which Plaintiff, by virtue of his candidacy, sought to undermine Defendant’s authority at work. [Ex. 2, Besecker Depo., p. 74:14-20]. Travis Dooley, who is a Patrol Sergeant at the Gunnison Sheriff’s Office, and in 2014 was Plaintiff’s direct subordinate, learned that Plaintiff was running for sheriff in March of 2014. After learning of Plaintiff’s candidacy, he continued to show up at work, perform his duties, and never refused any duty assigned to him. [Ex. 6, Dooley Depo., pp. 32:17-.33:19]. He did not refuse to work with Plaintiff. [Ex. 6, Dooley Depo., p.33:20- 21]. He is not aware of anyone who refused to perform duties assigned to them because of Plaintiff’s decision to run for sheriff. [Ex. 6, Dooley Depo., p.36:22-25]. Mark Mykol, who was a Patrol Deputy at the Gunnison Sheriff’s Office in 2014 and is now a Patrol Sergeant, never refused to work with Plaintiff as a result of the campaign. [Ex. 7, Mykol Depo., p. 27:23-24]. He is unaware of anyone else in the Sheriff’s Office Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 9 of 77 10 refusing to work with Plaintiff as a result of the campaign. [Ex. 7, Mykol Depo., pp. 27:25- 28:5]. Christina Mellott, a former deputy at the detention unit who was employed at the Gunnison Sheriff’s Office from March 2012 to September 2014, states that she does not believe that Jackson’s campaign for Sheriff disrupted the Gunnison County Sheriff’s Office. She did not observe any noticeable friction or problems among the officers in the Gunnison County Sheriff’s Office during the campaign. [Ex. 8, Mellott Aff. ¶ 5]. Warren Taylor, a former patrol deputy with the Gunnison Sheriff’s Office who was employed with the Sheriff’s Office in 2014, states that he does not believe that Plaintiff’s campaign was disruptive to the Gunnison County Sheriff’s Office. He does not believe that the campaign had a negative effect on operations. [Ex. 9, Taylor Aff. ¶ 4]. Denim Starnes, a former deputy at the detention facility with the Gunnison Sheriff’s Office who was employed from May of 2011 until August of 2014, states that he did not believe Plaintiff’s campaign caused disruption in the Sheriff’s Office. Everyone within the Sheriff’s Office came to work, everyone did their work and the job always got done. The jobs of the Gunnison County Sheriff’s Office were always completed. Starnes does not believe the mood within the Sheriff’s Office was negative as a result of the campaign. Regardless of who won the election, Besecker or Jackson, everyone was going to move on and properly do their jobs. [Ex. 10, Starnes Aff. ¶ 3]. Duane Sponable, a former Deputy at the detention unit with the Gunnison Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 10 of 77 11 Sheriff’s Office who was employed during the campaign in 2014, states that he did not believe Plaintiff’s campaign was responsible for any divisions within the Sheriff’s Office. [Ex. 11, Sponable Aff. ¶ 4]. 12. The Gunnison Sheriff’s Office is divided into three separate units: a patrol unit, a jail or detention unit, and an alternative services unit. [Ex. 4, Barnes Depo., p. 15:12- 25]. The patrol and jail units are divided because they have different responsibilities, different certification levels, and different roles within the office. [Ex. 4, Barnes Depo., p. 16:12-21]. The patrol and detention units are physically housed in separate areas of the Sheriff’s Office. [Ex. 4, Barnes Depo., pp. 16:22-17:13]. Plaintiff admits that at times there were joint supervisor meetings between the supervisors of the patrol and detention units of the Gunnison Sheriff’s Office but denies causing the joint meetings to be separated. [Ex. 1, Jackson Aff. ¶ 10]. Plaintiff further denies Defendant’s characterization that the joint meetings ended “just after Jackson announced his candidacy.” Duane Sponable, the former detention Sergeant, states that the joint meetings still were being held in August of 2015 when he left the Sheriff’s Office. [Ex. 11, Sponable Aff. ¶ 6]. He understands that sometime after he resigned from the Sheriff’s Office in August of 2015 the supervisors’ meetings were split in two, one for the detention facility and one for the patrol division. Mr. Sponable does not know why the separation occurred. Id. Denim Starnes, the former Deputy and Sergeant at the detention unit, states that Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 11 of 77 12 while he was employed as a Sergeant at the detention unit at the Gunnison County Sheriff’s Office he attended joint supervisors’ meetings. Starnes stated the meetings were still going on when he left in August of 2014. [Ex. 10, Starnes Aff. ¶ 6]. 13. Plaintiff does not deny Mr. Curtis’ characterization of the goals of the meetings. Plaintiff disputes that those goals were ever consistently met. The meetings were not mandatory to attend. [Ex. 4, Barnes Depo., pp. 21:15-22:7]. From Plaintiff’s perspective, the meetings could be productive but just as often they were not productive. [Ex. 1, Jackson Aff. ¶ 10]. Sometimes the participants would get bogged down with issues that Plaintiff perceived to be unworthy of the time dedicated for the meetings. Id. For example, Plaintiff recalls an instance where the jail unit supervisors were discussing the type of soap to be used to wash cells. Id. Plaintiff recalls discussing with Defendant whether there was a need to hold joint supervisor meetings between the patrol and jail units, as they appeared not to meaningfully add to the workday. Id. Plaintiff also disputes that the joint meetings were held weekly on a consistent basis. Mr. Curtis testified that the meetings were not always weekly because “we work in law enforcement and our life is crazy” and other business got in the way. [Ex. 12, Curtis Depo., p. 12:21-25] Mr. Sponable states that the Gunnison County Sheriff’s Office never was consistent in actually having the meetings. He states that during the approximate one year that he was a sergeant he attended perhaps only 5 or 6 supervisors’ meetings. [Ex. 11, Sponable Aff. ¶ 5]. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 12 of 77 13 14. Plaintiff denies that his candidacy “caused the jail supervisors to lose trust” in him. The testimony about which detention supervisor or supervisors allegedly requested separate meetings is contradictory. Mr. Barnes testified that Kathy Coleman, Denim Starnes, and Clayton Curtis approached him with the issue. He does not know the date they approached him. [Ex. 4, Barnes Depo., pp. 23:14-24:6]. On the other hand, Mr. Curtis testified that he personally did not come to Mr. Barnes and request that the meetings be held separately. [Ex. 12, Curtis Depo., p. 13:17- 22]. Mr. Starnes denies complaining to anyone about Plaintiff’s behavior at these meetings. He states that to his knowledge, no one complained about the behavior of Scott Jackson during the supervisor’s meeting, nor did anyone complain about the behavior of any other supervisor during the meetings. [Ex. 10, Starnes Aff. ¶ 5]. Generally, the subjects discussed at joint supervisor meetings varied. Depending on the subjects being discussed, during those meetings Plaintiff participated, listened, and spoke when he felt he had something to say, as he always had. His behavior at those meetings did not change after he announced his candidacy [Ex. 1, Jackson Aff. ¶ 10]. According to Undersheriff Barnes, Plaintiffs role as a supervisor would entitle him to give input on matters discussed at the meetings. [Ex. 4, Barnes Depo., p. 27:6- 9]. It would not be out of bounds for him to share his opinion about what should be done on a specific matter. [Ex. 4, Barnes Depo., p. 27:10-13]. In those meetings Plaintiff never said anything to the effect of: “When I’m sheriff I’m going to do X or Y”. [Ex. 4, Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 13 of 77 14 Barnes Depo., p.27:14-17]. Undersheriff Barnes could not recall a single instance where Plaintiff said anything in those meetings that was out of bounds or outside his authority to discuss. [Ex. 4, Barnes Depo., p. 29:12-18]. Plaintiff never disclosed any information discussed in the supervisors’ meetings to the public during the course of the campaign. [Ex. 1, Jackson Aff. ¶ 10]. Plaintiff’s daily timesheets show that he attended only three supervisors’ meetings between the time he announced his candidacy on February 20, 2014 and the election on November 4, 2014. [Ex. 1, Jackson Aff. ¶ 11]. He attended meetings on March 5, 2014, March 12, 2014, and April 2, 2014 – all on his scheduled day off. Id. Plaintiff was unaware that anyone within the detention division had requested not to attend meetings with him. Nobody ever complained to Plaintiff about his presence at the meetings at any time. Nobody ever disclosed to Plaintiff that anyone from the detention facility had asked not to attend the supervisor meetings due to his presence. Id. Mr. Curtis offered conflicting testimony about his views regarding Plaintiff’s attendance at the joint supervisor’s meetings. Mr. Curtis testified that he did not know Plaintiff well and did not work closely with him. [Ex. 12, Curtis Depo., p. 12:4-6]. He testified that he respected Plaintiff for taking an interest in the issues at the detention unit after announcing his candidacy. [Ex. 12, Curtis Depo., p. 23:22-p.24:6]. He testified that Plaintiff never said anything in the joint supervisor meetings that caused him to be concerned about his job or anyone else’s job in the jail. Sergeant Curtis testified that Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 14 of 77 15 Plaintiff never threatened anyone’s job either before or after announcing his candidacy. [Ex. 12, Curtis Depo., p. 27:10-19]. After the election, Plaintiff attended a joint supervisor’s meeting on December 4, 2014. He remembers that Kathy Coleman and Clayton Curtis from the detention unit attended that meeting. [Ex. 1, Jackson Aff. ¶ 12]. That meeting was held without incident. Id. The meeting appeared to him to be no different than any of the other meetings he attended with or without someone representing the detention unit present. Id. 15. See Plaintiff’s response to SUMF, ¶ 14, supra. 16. Plaintiff denies he caused any decision that Defendant may have made to hold separate meetings with detention and patrol supervisors. See Plaintiff’s Responses to SUMF ¶¶ 12-15, supra. 17. Plaintiff denies that there was any material impact on Defendant or Mr. Barnes’ time or on their ability to complete other tasks for which Defendant or Mr. Barnes are responsible. Defendant’s SUMF, ¶17 is contrary to the testimony obtained in this case. When asked whether he was “aware of any instance in which the Sheriff’s office failed to perform its duties as a result of Scott’s campaign”, Mr. Barnes responded “No, sir.” [Ex. 4, Barnes Depo., p. 161:17-20]. See Plaintiff’s Response to SUMF, ¶ 11, supra. 18. Plaintiff denies that he had any “performance problems” before, during, or after the election. [Ex. 1, Jackson Aff. ¶ 13]. Throughout his 36 years employed by the Sheriff’s Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 15 of 77 16 Office, he consistently received excellent performance evaluations. [Ex. 2, Besecker Depo, p. 35:1-11].4 19. Plaintiff admits that Undersheriff Barnes failed to complete an evaluation of Plaintiff for 2013 but disputes that the cause of the failure was due to anyone but Mr. Barnes and Defendant. Mr. Barnes evaluated Plaintiff in 2012 for the 2011 work year. The evaluation for 2011 states that Plaintiff exceeded standards on working relationships with others in the county, exceeds standards for working relationships with other agencies and offices, exceeds the standards for team work, and exceeds the standards for ability to work with the public. Like all others Plaintiff received in his 36 years, it was a good evaluation. On some items Mr. Barnes gave Plaintiff marks that exceeded his own self-evaluation. [Ex. 4, Barnes Depo., p. 138:17-23; see also Depo. Ex. 41]. In his deposition, Mr. Barnes stressed the importance of the employee evaluation as a tool to check whether performance issues that had been raised with the employee are followed-up in order to ensure continuance improvement in performance. [Ex. 4, Barnes Depo., p. 89:5-21]. Mr. Barnes failed to evaluate Plaintiff for the years 2012 and 2013. 4 The issue of Plaintiff’s performance while employed at the Gunnison County Sheriff’s Office has become relevant not because Plaintiff suffered from any performance issues, but because of evidence that Defendant falsely cited Plaintiff’s performance as a basis for Plaintiff’s termination only to have Defendant subsequently admit under oath that Plaintiff was not “revoked because of any performance issues”. [Ex. 2, Besecker Depo., p. 155:9]. See Plaintiff’s SADF, ¶¶ 96-103, below. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 16 of 77 17 [Ex. 1, Jackson Aff. ¶ 14]. Mr. Barnes does not know whether an evaluation for Plaintiff for the 2012 work year, which covers the time period before Plaintiff had announced his candidacy, exists. [Ex. 4, Barnes Depo., p. 142:11-15]. Mr. Barnes admits that his failure to evaluate Plaintiff was a violation of Gunnison County Sheriff’s Office policy. [Ex. 4, Barnes Depo., p. 149:3-5]. He further admits that it was an intentional decision by him and Defendant not to evaluate Plaintiff in 2014 because of, and only because of, Plaintiff’s candidacy. [Ex. 4, Barnes Depo., p. 149:6-10]. Mr. Barnes could think of no other instance where he consciously chose not to evaluate a subordinate. [Ex. 4, Barnes Depo., p. 150:16-19]. 20. Plaintiff admits that beginning in 2013 [not 2014] and into 2015, Mr. Barnes gave him the task of working to complete patrol timesheets and monitoring deputy vacation and overtime. Mr. Barnes gave him that task as Plaintiff was recovering from elective shoulder surgery. [Ex. 1, Jackson Aff. ¶ 15]. 21. Plaintiff denies ever performing tasks relating to timesheets unsatisfactorily, either in October of 2014 or any other time. [Ex. 1, Jackson Aff. ¶ 15]. In March of 2014 Mr. Barnes thanked Plaintiff for his completion of a time sensitive timesheet task. [Ex. 4, Barnes Depo., p. 198:6-21; see Depo. Ex. 43 and 44]. Thereafter, Mr. Barnes never spoke to Plaintiff about any concern with timesheets, apparently at the instruction of Defendant. [Ex. 4, Barnes Depo., p. 192:15-19].5 5 Evidence surrounding Plaintiff’s work on timesheets is relevant not because Plaintiff failed to Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 17 of 77 18 22. Plaintiff denies that Mr. Barnes was “required to take over this monitoring and scheduling task”. In the past, Plaintiff and Mr. Barnes frequently discussed their work on timesheets and the regulation of vacation and overtime for patrol deputies. [Ex. 1, Jackson Aff. ¶ 16]. Had Mr. Barnes not been instructed by Defendant to avoid speaking with Plaintiff about timesheets, Mr. Barnes could have approached Plaintiff with issues regarding timesheets and Plaintiff would have worked, as he always did, to accomplish the assigned task. Id. 23. Plaintiff denies that any Sheriff’s Office employees felt very uncomfortable with Plaintiff’s presence during arrest control tactics trainings (PPCT). Plaintiff’s timesheets reflect that he participated in one PPCT class prior to the election on September 16, 2014 and two classes after the election on November 20, 2014 and December 11, 2014. [Ex. 1, Jackson Aff. ¶ 17]. Sergeant Mark Mykol was the instructor for those classes. [Ex. 7, Mykol Depo., p. 22:23-25]. Mr. Mykol does not recall anything unusual occurring during those classes. [Ex. 7, Mykol Depo., p. 23:6-8]. He recalls Plaintiff following his instruction during those classes. [Ex. 7, Mykol Depo., p. 23:9-14]. He testified that Plaintiff was not disruptive and did not fail to follow orders during those classes. [Ex. 7, Mykol Depo., p. 25:12-14]. He does not recall anyone refusing to attend a class due to perform that work satisfactorily, but because there is direct evidence that in February of 2015 Defendant attempted to use Plaintiff’s work on timesheets as a pretext for his termination. See Plaintiff’s SADF, ¶ 97, below. Further, in a July 22, 2015 letter to the EEOC, Defendant falsely alleged that he was terminated in part due to the timesheets, which Defendant claims was evidence of intentional malfeasance. Plaintiff’s SADF, ¶ 100, below. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 18 of 77 19 Plaintiff’s presence in the classes. [Ex. 7, Mykol Depo., p. 26:12-14]. Mr. Barnes did not attend the classes. [Ex. 4, Barnes Depo., p. 164:11-13]. He testified that nobody reported to him that Plaintiff did anything in the trainings to make people uncomfortable. [Ex. 4, Barnes Depo., p. 164:14-24]. 24. Plaintiff denies being insubordinate to Defendant in any way during the campaign season. [Ex. 1, Jackson Aff. ¶ 18]. Plaintiff denies that his participation in local election forums with Defendant was an act of insubordination. See Plaintiff’s response to SUMF, ¶ 11 (Defendant knows of no specific instance in which Plaintiff, by virtue of his candidacy, sought to undermine Defendant’s authority at work.); see also [Ex. 2, Besecker Depo., p. 74:14-20]. 25. Defendant’s Brief fails to identify any statement that Plaintiff made during the course of the campaign that has been proven false, inaccurate, or misleading. [Ex. 3, Defendant’s December 1, 2015 Answers and Responses to Plaintiff’s First Set of Interrogatories and Requests for Production of Documents, Response to Interrogatory 3, p. 4-5]. Defendant’s interrogatory response fails to identify any factually inaccurate statements that Plaintiff himself made during the course of the campaign. Id. 26. Plaintiff denies that any deputy had reason to be concerned about their job as a result of Plaintiff’s campaign. Mr. Curtis testified that Plaintiff never said anything in the joint supervisor meetings that caused him to be concerned about his job or anyone else’s job in the jail. Sergeant Curtis testified that Plaintiff never threatened anyone’s job either before Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 19 of 77 20 or after announcing his candidacy. [Ex. 12, Curtis Depo., p. 27:2-19]. Mr. Barnes has no knowledge that Plaintiff ever told anyone within the Sheriff’s Office that they would be terminated if he were elected Sheriff. [Ex. 4, Barnes Depo., p. 235:21-25]. 27. See Plaintiff’s Response to SUMF, ¶ 11 regarding lack of disruption. 28. See Plaintiff’s Response to SUMF, ¶ 11 regarding lack of disruption. Further, Plaintiff disputes Mr. Barnes’ characterization that he spent “days-worth” of time discussing Plaintiff’s candidacy with unnamed Sheriff’s Office employees during 2014 as uncorroborated and a gross exaggeration. 29. Plaintiff denies that Defendant could not address “performance issues” with Plaintiff. Defendant admits there was an opportunity for communication between himself and Plaintiff at work notwithstanding the campaigns. [Ex. 2, Besecker Depo., p. 72:10- 16]. Defendant’s Brief offers no evidence that any other officer questioned Defendant’s leadership and authority due to Plaintiff’s campaign. In fact, the opposite is true: nobody in the Sheriff’s Office questioned Defendant’s authority because he was challenged by Plaintiff in the campaign. See Plaintiff’s Response to SUMF, ¶ 11 (Defendant knows of no specific instance in which Plaintiff, by virtue of his candidacy, sought to undermine Defendant’s authority at work); see also Plaintiff’s Response to SUMF, ¶ 34, below (After the election, Defendant continued to run the Sheriff’s Office, maintain operations in the office and maintain his authority, nobody showed any disrespect to Defendant because he had been challenged during the election by someone within the office, and nobody refused Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 20 of 77 21 to follow an order from Defendant because he was challenged in the 2014 election.). 30. There is no evidence that Defendant could not approach Plaintiff or “speak freely” with him about the operations of the Sheriff’s Office. See Plaintiff’s response to ¶ 29, supra (Defendant admits there was an opportunity for communication between himself and Plaintiff at work notwithstanding the campaigns); see also Plaintiff’s response to ¶11, supra (Defendant stated publicly that he and Plaintiff had almost daily communication and that, by doing so, the Department can be reassured of its stability.) 31. Plaintiff denies that his announcement as a candidate for sheriff “required” Defendant to change how he made decisions. Defendant offers no evidence respecting any specific decision that was “labored” due to Plaintiff’s candidacy. Any changes as to how Defendant managed the Sheriff’s Office during the course of the campaign is solely attributable to Defendant. [See Plaintiff’s SADF, ¶ 77, below]. 32. Plaintiff admits SUMF, ¶32. But see Plaintiff’s response to Defendant’s SUMF, ¶ 11 (Defendant knows of no specific instance in which Plaintiff, by virtue of his candidacy, sought to undermine Defendant’s authority at work). 33. Plaintiff denies forming “alliances with several deputies who would congregate in Jackson’s office.” [Ex. 1, Jackson Aff. ¶ 19]. Plaintiff denies abruptly stopping conversations in Defendant’s presence, failing to assist other officers, and putting more work on officers who were not part of Defendant’s perceived alliance. Id. Defendant admits that Plaintiff in the course of his work would have occasion to meet with the Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 21 of 77 22 individuals he is accused of having “alliances” with and such meetings were not unusual. [Ex. 2, Besecker Depo., pp. 75:24-76:12]. He never overheard these individuals discussing the campaign. [Ex. 2, Besecker Depo., pp. 76:25-77:2]. See also Plaintiff’s responses to Defendant’s SUMF ¶¶ 11, 17. 34. Plaintiff denies maintaining Defendant’s perceived alliances after the election. [Ex. 1, Jackson Aff. ¶ 19]. Undersheriff Barnes admits that after the election, there was no instance in which Plaintiff’s presence disrupted the operations of the Sheriff’s Office. [Ex. 4, Barnes Depo., p. 167:1-3]. There was no instance in which Plaintiff, in any way, either expressly or implicitly tried to undermine Defendant’s authority after the election. [Ex. 4, Barnes Depo., p. 167:4-9]. There is no instance in which after the election Plaintiff refused to follow orders. [Ex. 4, Barnes Depo., p. 167:10-12]. There is no instance in which after the election Plaintiff criticized Defendant. [Ex. 4, Barnes Depo., p. 167:13-18]. After the election, Defendant continued to run the Sheriff’s Office, maintain operations in the office and maintain his authority. [Ex. 4, Barnes Depo., pp. 167:19-168:1]. After the election, nobody showed any disrespect to Defendant because he had been challenged during the election by someone within the office. [Ex. 4, Barnes Depo., p. 168:2-4]. After the election, nobody refused to follow an order from Defendant because he was challenged in the 2014 election. [Ex. 4, Barnes Depo., p. 168:5-8]. When Undersheriff Barnes was asked if he would have continued to work with Plaintiff had Plaintiff not been terminated, Undersheriff Barnes replied “Of course.” [Ex. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 22 of 77 23 4, Barnes Depo., p. 178:23-25]. He would have continued to go on calls with Plaintiff, and he would have trusted him to serve the public and answer calls and emergencies. He “absolutely” believes that he would have had Plaintiff’s back in a bad situation and Plaintiff would have had his back in a bad situation. [Ex. 4, Barnes Depo., p. 179:1-9]. Similarly, Sergeants Dooley and Mykol would have continued to work with Plaintiff if he hadn’t been terminated. [Ex. 6, Dooley Depo., p. 34:6-11; Ex. 7, Mykol Depo., pp. 34:24-35:1]. 35. Plaintiff denies misrepresenting his qualifications during the campaign. See Plaintiff’s response to SUMF, ¶¶ 4-8, supra. 36. Defendant’s SUMF, ¶ 36 is contracted by Mr. Barnes’ deposition testimony. See Plaintiff’s Response to SUMF ¶ 34 (Mr. Barnes would have continued to work with Plaintiff and trusted Plaintiff to serve the public). 37. Plaintiff admits that he met with Defendant to discuss his employment after the election. The first meeting took place on or about November 10, 2014. [Ex. 1, Jackson Aff. ¶ 20]. Plaintiff recorded the conversation so that he would have an accurate record of the conversation. Id. Plaintiff disagrees with Defendant’s characterization of the conversation. Id. (containing Plaintiff’s summary of the November 10, 2014 conversation). 38. Plaintiff denies that he indicated in the November 10 conversation that he and Defendant “were equals” and that he “had some kind of additional power and authority Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 23 of 77 24 in the Sheriff’s Office that he did not have prior to the campaign and election.” [See Ex. 1, Jackson Aff. ¶ 20]. 39. Plaintiff denies being angry during the meeting. [See Ex. 1, Jackson Aff. ¶ 20]. 40. Plaintiff admits that he met with Defendant a second time after the election. The second meeting took place on or about November 18, 2014. Plaintiff recorded the conversation so that he would have an accurate record of the conversation. [See Ex. 1, Jackson Aff. ¶ 21] (containing Plaintiff’s summary of the November 18, 2014 conversation). 41. Plaintiff admits that Defendant asked him to put his ideas in writing, which he did. He did not present those ideas in writing because based on the November 18, 2014 meeting Plaintiff thought Defendant was wanting to work things out and Plaintiff thought their next meeting would be to discuss the bullet points Defendant requested. [Ex. 5, Jackson Depo., pp. 249:24-250:3]. 42. See Plaintiff’s response to SUMF, ¶¶ 11, 34, supra. 43. Plaintiff denies failing to “outwardly show regard and respect” for Defendant in front of the deputies. See Plaintiff’s responses to SUMF ¶¶ 11, 34, supra. 44. Notwithstanding what Defendant believes to be “clear” Plaintiff denies not trusting Defendant’s judgment. Plaintiff stated publicly during the campaign that he intended to stay with the Sheriff’s Office even if he lost and he stated it again to Defendant in their November 10, 2014 meeting. [See Plaintiff’s SADF, ¶ 89]. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 24 of 77 25 45. Plaintiff admits that all deputies continued to perform their work, go out on calls, patrol, and work with each other. Plaintiff denies that “the atmosphere, enthusiasm, and concentration on duty changed after Jackson announced his candidacy and lasted until his appointment was revoked in March of 2015.” [Ex. 1, Jackson Aff. ¶ 23]. 46. Plaintiff admits that Defendant decided to terminate Plaintiff. Plaintiff denies his termination had anything to do with “atmosphere”, “enthusiasm”, and the “concentration” of patrol deputies. [See Plaintiff’s SADF, ¶ 90 (evidence of the actual reasons why Plaintiff was terminated)]. 47. Plaintiff admits Defendant’s SUMF, ¶ 47. 48. Plaintiff admits Defendant’s SUMF, ¶ 48. 49. Plaintiff denies that Defendant believed C.R.S. § 30-10-506 permitted him to terminate Plaintiff under these circumstances. [See Plaintiff’s SADF, ¶ 86, ¶¶ 91-93, ¶¶ 96-100, ¶¶ 102-104]. 50. Plaintiff admits Defendant’s SUMF, ¶ 50. 51. Plaintiff admits Defendant’s SUMF, ¶ 51. 52. Plaintiff admits Defendant’s SUMF, ¶ 52. 53. Plaintiff admits Defendant’s SUMF, ¶ 53. 54. Plaintiff admits he received the letter referenced in Defendant’s SUMF, ¶ 54. He disagrees with the letter and denies that the letter sets forth Defendant’s actual reasons for Plaintiff’s termination. Plaintiff denies that Defendant believed the letter was in Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 25 of 77 26 compliance with the applicable law. 55. Plaintiff admits Defendant’s SUMF, ¶ 55. 56. Plaintiff admits Defendant’s SUMF, ¶ 56, except that he denies that Defendant believed the meeting was in compliance with applicable law. [See Plaintiff’s SADF, ¶ 86, ¶¶ 91-93, ¶¶ 96-100, ¶¶ 102-104]. 57. Plaintiff admits that he stated in his deposition that he had an opportunity to be heard. He denies that the meeting was held in compliance with C.R.S. § 30-10-506. [See Plaintiff’s SADF, ¶ 104]; see also Section V(5), below. 58. Plaintiff admits that there is a line item for the position of Patrol Lieutenant in the Sheriff’s Office budget. Plaintiff denies that the failure to fill the position was based on a belief that Plaintiff’s duties could be handled by an additional patrol sergeant. 59. Plaintiff admits Defendant’s SUMF, ¶ 59. 60. Plaintiff admits that Sergeant Mykol took over the duties of time cards and reviewing daily reports and Sergeant Dooley took over the duties of scheduling. Plaintiff denies that in addition to patrol shifts, these were the main responsibilities which Plaintiff was responsible for as a Lieutenant. [Ex. 1, Jackson Aff. ¶ 24]. 61. Plaintiff admits Defendant’s SUMF, ¶ 61. 62. Plaintiff denies that the Sheriff’s Office has not decided whether or when it will open the Patrol Lieutenant position for applicants. Plaintiff believes that the failure to fill the position was based on a defense strategy to an anticipated employment discrimination Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 26 of 77 27 claim. [Ex. 1, Jackson Aff. ¶ 25]. 63. Plaintiff admits Defendant’s SUMF, ¶ 63. 64. Plaintiff admits Defendant’s SUMF, ¶ 64. 65. Plaintiff denies that he can think of no other reason to support his claim that he was discriminated against because of his age. [See Plaintiff’s SADF, ¶85]. 66. Plaintiff admits Defendant’s SUMF, ¶ 66. 67. Plaintiff denies that he does not know if his appointment was revoked because of his affiliation with the Democratic party during the campaign. [See Plaintiff’s SADF, ¶84]. III. Plaintiff’s Statement of Additional Disputed Facts (SADF)6 68. Prior to his termination on March 17, 2015 at the age of 61, Plaintiff had been employed by the Gunnison County Sheriff’s Office for 36 years. Prior to his termination, Plaintiff had been the longest continuously serving law enforcement officer in Gunnison County, Colorado. See Doc. 23, ¶¶ 6-8. 69. Plaintiff began his employment with the Sheriff’s Office in March of 1979 as a detention officer. Approximately two years later Plaintiff advanced to the patrol division and remained there for approximately fifteen years. Plaintiff then advanced to the rank of Patrol Sergeant and served in that role for ten years. In 2005 Plaintiff advanced to the rank 6 Plaintiff is cognizant of this Court’s Special Instructions Concerning Motions for Summary Judgment, providing that a party opposing a motion for summary judgment may submit a “Statement of Additional Disputed Facts” in its brief. While this Section is styled to conform with the Court’s Special Instructions, Plaintiff believes the facts set forth in the following section are undisputed. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 27 of 77 28 of Patrol Lieutenant and served in that role for nine years until his termination. See Doc 23, ¶¶ 10-13. 70. Defendant began his career in law enforcement in 1972. Between 1972 and 1990 Defendant held various jobs in law enforcement with intermittent periods of time where he left law enforcement to work in other jobs. [Ex. 2, Besecker Depo., pp.11:15-14:20]. Beginning in 1990, Defendant became a patrol deputy with the Gunnison Sheriff’s Office. From 1990 to 1994, Plaintiff and Defendant both worked at the Sheriff’s Office at patrol deputies. [Ex. 2, Besecker Depo., p.16:2-5]. 71. In 1994, Defendant was promoted to Undersheriff and became Plaintiff’s supervisor. [Ex. 2, Besecker Depo., p.16:2-5]. He remained Undersheriff for sixteen years. [Ex. 2, Besecker Depo., p. 17:1-2]. 72. As Undersheriff, Defendant was responsible for reviewing Plaintiff’s performance. Defendant never gave Plaintiff a negative performance review. [Ex. 2, Besecker Depo., p. 54:15-23]. Defendant gave Plaintiff excellent evaluations. [Ex. 2, Besecker Depo., p.35:4- 11]. Defendant never suggested to Plaintiff that his performance in the office would lead to a formal reprimand, a suspension, or any other type of discipline. [Ex. 2, Besecker Depo., p. 55:3-7]. 73. Pursuant to policy, commendations are issued to Sheriff’s Office employees to document excellence in performance. [Ex. 2, Besecker Depo., p.34:12-17]. Throughout their respective histories in the Sheriff’s Office, Defendant personally provided Plaintiff Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 28 of 77 29 with numerous written commendations. The commendations span 30 years, from 1983 through 2013. Doc 23, ¶¶ 15-39; [Depo. Ex. 51-72]. Defendant admits that all of his commendations of Plaintiff were issued sincerely and that Defendant meant what he said in them. [Ex. 2, Besecker Depo., p.34:18-25]. 74. In 2010, Defendant ran for Gunnison County Sheriff to fill the retiring sheriff’s seat. Defendant ran unopposed. [Ex. 2, Besecker Depo., p.19:21-23]. 75. Prior to 2014, Defendant never considered terminating Plaintiff. [Ex. 2, Besecker Depo., p. 56:4-6]. 76. Plaintiff announced his candidacy for Gunnison County Sheriff on the Democratic Party ticket on February 20, 2014. Defendant ran for reelection as the Republican nominee and the incumbent. [Ex. 2, Besecker Depo., p.81:16-19]. 77. Plaintiff remained actively employed and working at the Sheriff’s Department after his announcement. Defendant did not terminate Plaintiff’s employment on the basis of his announcement. [Ex. 2, Besecker Depo., pp. 68:8-69:6]. After Plaintiff’s announcement, Defendant did not speak with the office to address the issue of the campaign and its potential impact on the office. [Ex. 2, Besecker Depo., p. 68:13-16]. 78. Over the course of the campaign, each candidate made public statements about various policy, administrative, and financial issues impacting the Sheriff’s Office and why he thought he was the best person for the job. In their campaign statements, both candidates emphasized their experience in law enforcement and the respective qualities they brought Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 29 of 77 30 to the position of Sheriff. Both candidates distributed written campaign materials to the public and advertised their candidacies in the local newspaper, the Gunnison Country Times. Both candidates attended campaign events. Defendant made public statements during the campaign to the effect that Plaintiff’s candidacy and his candidacy performed an essential democratic service of giving Gunnison County voters a choice of candidates for the position of Gunnison County Sheriff. Doc. 23, ¶¶ 44-48, ¶50. 79. During the course of his campaign Plaintiff made numerous statements involving matters of public interest to the voters of Gunnison County in his campaign materials, candidate forums, letters, and in conversations with voters. Plaintiff raised the issues of the Victim’s Advocate Program, the closing of the Crested Butte South Office, the high turnover within the detention center staff, and his plans respecting these issues. He stated his intent to build better relationships with the community and to establish community respect by positive interactions with the public. [Ex. 13, Plaintiff’s October 15, 2015 Responses to Defendant’s First Set of Discovery Requests, p. 2, ¶2]. 80. Defendant campaigned by going door to door to meet with voters, using social media such as Facebook, creating websites and videos, circulating written campaign flyers, drafting letters to local newspapers, and by attending campaign events. [Ex. 2, Besecker Depo., p. 81:10-19; p. 83:1-7, 17-21]. 81. Towards the end of the election season, on October 9 and 10, 2014, both candidates attended election forums in Gunnison and then in Crested Butte, Colorado. The forums Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 30 of 77 31 were open to the public. During the forums, both candidates were asked by the moderators to discuss their views on an array of issues of public importance, including: whether employees of the Gunnison Sheriff’s Office should be required to execute confidentiality contracts, whether the Sheriff’s Office should reopen a substation in Crested Butte South, problems concerning contraband in the county jail, inappropriate relationships between detention employees and inmates, the high turnover rate at the detention facility, the “militarization” of law enforcement, the issue of jail based health services, the quality of Sheriff’s Office criminal investigations, the quality of the victim’s advocate program, community policing and public relations between the Sheriff’s Office and the community, whether and to what extent border crossings from Mexico into the United States were affecting Gunnison County, gun control, the proper role of law enforcement in interpreting and enforcing laws and whether the elected Sheriff should be present in the field in response to major calls. [Ex. 13, p. 2-3, ¶2]. 82. Plaintiff never conducted any campaign activities or engaged in campaign related speech while on duty. [Ex. 1, Jackson Aff. ¶ 26]. Defendant is aware of no instance where Plaintiff conducted any campaign activity while at work. [Ex. 2, Besecker Depo., p. 70:5- 7]. Nobody employed by the Sheriff’s Office ever told Defendant that they observed Plaintiff campaigning during working hours. [Ex. 2, Besecker Depo., p. 71:16-18]. Defendant believes if they had observed Plaintiff campaigning during work hours someone would have told Defendant. [Ex. 2, Besecker Depo., p. 71:19-21]. Undersheriff Barnes is Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 31 of 77 32 aware of no instance in which Plaintiff conducted campaign activities while on duty. [Ex. 4, Barnes Depo., p. 159:19-21]. Christina Mellott never observed Plaintiff campaigning while on duty. [Ex. 8, Mellott Aff. ¶ 4]. Warren Taylor never observed Plaintiff campaigning while on duty. [Ex. 9, Taylor Aff. ¶ 3]. 83. Throughout the course of the election season and thereafter, Defendant kept a diary of his thoughts about the election, Plaintiff, and Plaintiff’s supporters within the local Democratic Party. [See Depo. Ex. 78, attached to Doc. 32]; [Ex. 2, Besecker Depo., p. 93:4-10]. In the diary, he disparages Plaintiff as manipulative, conniving, weak, and underhanded. Id., ¶¶ 2, 16, 29. He accuses Plaintiff and his wife, Sandy Jackson, of badgering and shaming people to vote for Plaintiff. Id., ¶ 35. He accuses Mrs. Jackson of accosting people at her workplace to vote for Plaintiff. Id., ¶ 11. He accuses Plaintiff of associating with “has beens” and contaminating people. Id., ¶¶ 9, 10. He declares that Plaintiff has “overstayed his welcome in Gunnison”. Id., ¶ 17.7 84. Defendant testified that the campaign caused a split between the local Republican and Democratic Parties. [Ex. 2, Besecker Depo p. 91:20-92:2]. As a result, “folks were beginning to choose their sides more firmly and by their previous affiliation.” Id. Defendant admits that he viewed the local Democrats who affiliated with Plaintiff in a negative light because of the contentious nature of the campaign and because of things said during the campaign. 7 The Jacksons categorically deny the allegations against them contained within Depo. Ex. 78. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 32 of 77 33 In Depo. Ex. 78, with respect to Plaintiff’s Democratic Party supporters, Defendant repeatedly disparages them with names such as the “Blue Gang” (Id., ¶ 23), the “Blue Rash” (Id., ¶ 24) and the “Blue Plaque” (Id., ¶ 28). He accuses the Democrats of spreading rumors around the county about Defendant (Id., ¶ 12), of having a preoccupation with disgracing Defendant (Id., ¶ 24), of stacking the newspapers with untruths about Defendant (Id., ¶ 28), and of being indifferent to the facts and the truth (Id., ¶ 34). He declares that he is “incensed” by letters submitted to the newspaper in support of Plaintiff. (Id., ¶ 8). With reference to the Democrats who attended the Crested Butte Debate, Defendant remarks: “The Blue Rash took up the entire front row and stacked their offensive aggressive pre-conceived facts with attitude. They were prone to ask several questions at one time along with explanations and perception; an ultimate display by the Democrats that was a gross inconsideration to protocol and a preoccupation with disgracing me.” (Id., ¶ 24). Defendant admits using derogatory references respecting Plaintiff’s Democratic campaign supporters. [Ex. 2, Besecker Depo., p.105:3-7]. 85. In a document dated June 11, 2014 titled “Mariah’s recommendation to outline superiority!!!!!!!!!!!!!!!!!!!!” 8, Defendant lists Plaintiff’s perceived weaknesses as 8 Defendant denied in his deposition that he authored Depo. Ex. 76. See Appendix A. to Doc 32. He testified that his daughter, Mariah Green, wrote the document. Ms. Green was Defendant’s campaign manager. In her deposition testimony, Ms. Green denied writing the document and denied having access to Defendant’s home computer, from which Depo. Ex. 76 was retrieved. See Appendix B to Doc. 32. The conflicting testimony about the document’s origin raises a question as to whether Defendant or Ms. Green provided untruthful testimony about the document’s origin. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 33 of 77 34 compared to Defendant’s strengths. [See Depo. Ex. 76, attached to Doc. 32]. In it, he regards Plaintiff to be physically inferior to him. Defendant believes he is genetically superior to Plaintiff due to his “larger bone structure.” [Ex. 2, Besecker Depo. p. 87:15- 19]. He specifically references Plaintiff’s “degeneration of cervical structure and reconstruction of shoulder/arm”. Because Plaintiff and Mrs. Jackson do not have children, he considered Plaintiff to have “no family structure”. That was not the only time Defendant remarked on the Jackson’s family. As recently as February 24, 2015 Defendant gratuitously remarked on the “unborn child [the Jacksons] will never have.” [Ex. 14, Email from Defendant to Trezise]. Defendant believed that Plaintiff’s “learning curve” to be Sheriff was “way too steep after being in the comfortable position as non-active lieutenant.” [See Depo. Ex. 76, attached to Doc. 32]. 86. Defendant and Mr. Trezise, the former county attorney,9 discussed terminating Plaintiff in mid-October, 2014 prior to the November 4, 2014 election. In that discussion Mr. Trezise “felt that it was a simple as letting him go because he would be a high potential of undermining and manipulation.” “Art thought that I would be protected under the 30- 10-506, Deputies; appointments and revocations of appointment. However, after reading the 2006 update, he decided that it was no long [sic] simple and easy.” [See Ex. 1, attached to Doc. 39]. 9 Evidence regarding Mr. Trezise’s involvement in Plaintiff’s termination and Mr. Trezise’s criminal history is found in Plaintiff’s Memorandum in Support of Motion to Compel (Doc. 30.1) and Plaintiff’s Motion to Amend Scheduling Order (Doc. 39) ¶¶ 7 - 11. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 34 of 77 35 87. The election was held on November 4, 2014. Defendant won by 112 votes. See Doc 23, ¶ 62. 88. In a November 6, 2014 draft letter to the editor of the local newspaper marked “never release”, Defendant likens the campaign as “mortal combat (career-wise)” and a “horrendous boxing match”. [See Depo. Ex. 80, attached to Doc. 32]. 89. Prior to election day Plaintiff publicly stated his intent to say with the Sheriff’s Office even if he lost the election. [Ex. 1, Jackson Aff., ¶ 22]. 90. Defendant testified that both before the election and after the election was decided, he feared others in the office would perceive Plaintiff to be his equal because Plaintiff was running for Sheriff. [Ex. 2, Besecker Depo. p. 74:1-23]. Plaintiff and Defendant met on November 10, 2014. See Plaintiff’s response to Defendant’s SUMF, ¶ 37, supra. With respect to this meeting Defendant thought that Plaintiff “yielded no willingness to plead for his job” and that it “seemed that [Plaintiff] felt that he was entitled to go on with his career without a hiccup”. [See Depo. Ex. 78, ¶ 39, attached to Document 32]. Defendant testified that if Plaintiff had plead for his job “we would have had something to work with, yes.” [Ex. 2, Besecker Depo., p. 129:4-21]. Defendant testified that he expected Plaintiff’s approach in the meeting to be somewhere in between pleading for his job and groveling. [Ex. 2, Besecker Depo., p. 130:4-10]. Defendant testified that he terminated Plaintiff because of his perceived attitude in their first meeting on November 10, 2014: Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 35 of 77 36 Q. So is it your position that he was terminated because of his perceived aggressiveness in that first meeting? A. Not because of the aggressiveness, but because of the attitude that brought the aggressiveness to the surface. Q. That’s why he was terminated? A. That contributed mainly to that, yes. Q. That one meeting? A. Yes. [Ex. 2, Besecker Depo., p. 118:5-12]. Defendant believes that it was presumptuous for Plaintiff to believe he could campaign for the position of sheriff and still expect to keep his job: Q. You expected him – going back to the combat, mortal combat for careers, you expected him after the campaign, after he lost, to simply walk away? Is that what you expected? A. Not necessarily. Q. Okay. A. I think that the presumptuousness of him automatically believing that he had that position, he had earned it over the years, and it was going to continue, and there was not a risk with running – some sort of risk for running for sheriff caught me off guard. I did not have that presumptuousness. When I stated that I was not – No, I would not stay with the Sheriff’s Office, it wasn’t a dig towards Mr. Jackson, it was out of respect. You lost that position, you yield that position when it comes time. Q. To the victor go the spoils? A. In a sense. [Ex. 2, Besecker Depo., p. 165:20-166:10]. Plaintiff disagrees with Defendant’s characterization of the November 10, 2014 conversation. [See Ex. 1, Jackson Aff. ¶ 20] (containing Plaintiff’s summary of the November 10, 2014 conversation). 91. On or about November 17, 2014, Defendant met with Gunnison County Attorneys Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 36 of 77 37 Mr. Trezise and David Baumgarten to discuss Plaintiff’s termination. According to Defendant “David was leaning towards a graceful welcome to Scott Jackson back into the sheriff’s office. Art was not…” On November 17, 2014 Defendant consulted with another attorney regarding Plaintiff named Kathryn Schroeder. He also consulted with other sheriffs, including Sheriff Ron Bruce of Hinsdale County and a Sheriff Darr, who “advised to dismiss him as he is in an administrative position that creates and dictates policy and it [sic] he will undermine my authority and operations. It may cost after everything is said and done but it will be worth it.” [See Ex. 1, attached to Doc. 39]. 92. Around the time of the conversations referenced in Paragraphs 90 and 91 Defendant and the Gunnison County Attorneys were preparing drafts of the “Policy Regarding Revocation of Appointment of a Deputy Sheriff” that was adopted on or about November 24, 2014. See Defendant’s SUMF, ¶ 47-50 and Plaintiff’s responses thereto, supra. [See also Depo. Ex. 20, attached to Doc. 30.1] (copy of the November 24, 2014 policy). The policy was adopted in secrecy. Prior to the election, Undersheriff Barnes and a team of supervisors had been deeply involved in a major project to revise office policies in April of 2014, including policies regarding discipline and termination. [Ex. 4, Barnes Depo., pp. 45:5-47:19]. By contrast, Undersheriff had no involvement in the creation of the November 24 policy. He was not made aware of it until Defendant instructed him to input it into the policy book. Unlike previous policies, employees were not asked to Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 37 of 77 38 acknowledge their receipt of the November 24 policy. There was no announcement of its adoption. Defendant did not speak to Undersheriff Barnes about the adoption of the November 24 policy and Undersheriff Barnes did not know why it was being adopted. [Ex. 4, Barnes Depo., p. 65:21-68:14]. 93. Defendant testified that the November 24, 2014 policy does not require him to tell someone whose appointment is being revoked the reasons why. That is a stark contrast to prior policy, which required that an employee be “clearly advised of the reason for the negative discipline and the exact infraction of work procedure violation”. [Ex.2, Besecker Depo. p. 142:3-144:8].10 94. Plaintiff and Defendant met again on November 18, 2014, after which Defendant claims he decided to terminate Plaintiff. See Defendant’s SUMF, ¶¶ 40-41 and Plaintiff’s responses thereto, supra. However, Defendant also testified that he terminated Plaintiff because of his perceived attitude during their November 10, 2014 meeting. See ¶ 90, supra. 95. Defendant and Plaintiff met again on December 30, 2014. In that meeting Defendant gave Plaintiff the choice of resigning or being terminated. [Ex. 2, Besecker Depo., pp. 150:23-151:8]. See also Defendant’s SUMF, ¶¶ 51-52 and Plaintiff’s responses thereto, supra. 96. Over two months later, on or about February 11, 2015 Defendant drafted a document 10 Some of the additional substantive differences between the November 24, 2014 policy and the operative Gunnison Sheriff’s Office policies in effect prior to the election are discussed in Doc. 32 at pp. 5-7, which is incorporated herein by reference. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 38 of 77 39 referencing a “bullet list” of specific performance issues involving Plaintiff. [Depo. Ex. 45]. Defendant testified he was not sure why he was compiling the bullet list in February of 2015.11 [Ex. 2, Besecker Depo., pp. 156:7-157:10]. 97. Among other things, Depo. Ex. 45 references Plaintiff’s work on timesheets. Id., ¶ 12. On or about February 13 2015, Art Trezise met with Defendant to discuss timesheets. Thereafter, Mr. Trezise inquired with Linda Nienhuser of the Gunnison County Finance Department and asked her to explain time sheet irregularities to him. On February 17, 2015 Mr. Trezise wrote to Defendant that: Linda provided me with the attached time sheets in response to our discussion regarding erroneous time sheets provided by Scott Jackson. Unfortunately, I think the timesheets are going to be less compelling than we intended, as they appear to be signed by Randy Barnes and not Scott Jackson. While we could still make the argument that Scott submitted the erroneous sheets, it does create an argument that Randy bore the responsibility for the sheets since he signed off. That said, it does not change all that we discussed on Friday or our intended course of action. [See Ex. 2, attached to Doc. 39]. 98. Similar to Depo. Ex. 45, other documents produced by Defendant in the course of discovery appear to criticize Plaintiff’s performance in specific instances but remain unexplained by Defendant as to their origin or purpose. Depo. Ex. 47, attached, appears to be notes referencing several performance issues “pre” and “post” election. Defendant testified that he does not believe he prepared the document and does not know why it was prepared. [Ex. 2, Besecker Depo., pp. 157:23-158:7]. Mr. Barnes testified that he did not 11 As set forth below, the specific performance issues referenced in Depo. Ex. 45 appear in other documents and in statements made by Defendant in this case. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 39 of 77 40 generate the document and does not know why it was prepared. [Ex. 4, Barnes Depo., p. 201:14-23]. Depo. Ex. 49, attached, also references performance and enumerates specific violations of the disciplinary code. Defendant does not recall preparing the document and does not know why the document was prepared. [Ex. 2, Besecker Depo., p. 157:11-19]. Mr. Barnes testified that he was uncertain that if he generated the document and that he did not recognize it. [Ex. 4, Barnes Depo., p. 214:15-215:14]. Depo. Exhibits 47 and 49 are typed in the same font as Depo. Exhibit 45, which Defendant admits to authoring (although he doesn’t recall why). They a drafted in a similar in format to Depo. Exhibit 45. 99. The performance issues referenced in Depo. Exhibits 45, 47, and 49 have been cited by Defendant in this case as reasons for Plaintiff’s termination. See Ex. 3, Defendant’s December 1, 2015 Answer to Plaintiff’s Interrogatory No. 1, Page 2-4, (where Defendant states that “Sheriff Besecker documented several unacceptable incidents involving Jackson’s performance, both before and after Jackson ran for Sheriff, which contributed to his decision to revoke his appointment as a Sheriff’s Deputy”). The bullet points included in that response contain the same alleged performance issues outlined in Depo. Exhibits 45, 47, and 49. Plaintiff was never provided with any documentation of any “unacceptable incidents involving Jackson’s performance” including without limitation Depo. Exhibits 45, 47, and 49. He was never told that the information contained in those documents were considered evidence of poor performance on his part. [Ex.1, Jackson Aff., ¶ 27]. Gunnison Sheriff’s Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 40 of 77 41 Office policy requires that no employee will have any adverse comments entered into the employee’s personnel file or any other files used for any personnel purposes without the member having first reviewed the document. [Depo. Ex. 24, p. 59, attached]. Mr. Barnes testified that if notes were taken that were critical of Plaintiff’s performance and Plaintiff was not made aware of such notes, that would be a violation of office policy. [Ex. 4, Barnes Depo., p. 64:14-21]. 100. In a formal position statement to the EEOC on July 22, 2015 responding to a discrimination complaint filed by Plaintiff, Defendant cited Plaintiff’s alleged deficiencies in performance not only as a basis for his termination, but also cited his work on the timesheets as evidence of intentional malfeasance: This incident implicated sections of the disciplinary code including neglect of duties, interference with Sheriff’s operations, inability to perform assigned duties in an efficient manner, insubordination, dishonesty, behavior inappropriate to one’s position, acts that are intent to undermine supervisor integrity, and failure to adequately supervise subordinate members. [Ex. 15, July 22, 2016 EEOC letter]. 101. Defendant testified that Plaintiff “was not revoked because of any performance issues”. [Ex. 2, Besecker Depo, p. 155:2-9]. In order to be sure there was no misunderstanding, counsel again asked Defendant: Q. (Nods head up and down) Okay. So he was not revoked because of the shots- fired call that we’ve talked about this week12, he was not revoked because of Warren 12 Referenced in Depo. Ex. 45, ¶ 1, Depo. Ex. 47, ¶ 2, Ex. 15, EEOC letter, P. 3 (last bullet on page), Ex 3, P. 3 (response to Plaintiff’s Interrogatory No. 1) Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 41 of 77 42 Taylor13, he was not revoked because of Randy Laudick, any of those things. Am I to understand that’s your position today? A. That’s my position. [Ex. 2, Besecker Depo., p. 155:11-16]. 102. Defendant cited complaints allegedly made by other law enforcement agencies against Plaintiff as another basis for Plaintiff’s termination. See, e.g. Ex. 3, P. 2 (second bullet) (response to Interrogatory No. 1): * March of 2014: the Sheriff received several complaints from other agencies reporting that Jackson exhibited resentment and contempt toward them on a regular basis. These complaints generally came from the Gunnison Police Department and Gunnison Regional Communications Center. [See also Ex. 15, EEOC letter, P. 3 (second bullet)]. 103. In light of the allegation contained in Ex. 3, P. 2 (second bullet) (response to Interrogatory No. 1), Plaintiff’s counsel retained an investigator to interview the individuals identified by Defendant has having made complaints against Plaintiff. All of those individuals were interviewed. All of those individuals denied ever making complaints about Plaintiff. [Ex. 16, Johnson Aff.]. 104. In their final meeting on March 17, 2015, Defendant intentionally and knowingly refused to provide Plaintiff with any facts upon which he was basing his determination to fire him. [Depo. Ex 92; Ex. 2, Besecker Depo. P.176:3-20]. 13 Referenced in Depo. Ex. 45, ¶ 6, Depo. Ex. 47, ¶ 1, Ex. 15 EEOC letter, P. 4 (first bullet on page), Ex. 3 P. 3 (second bullet on page) (response to Plaintiffs’ Interrogatory No. 1) Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 42 of 77 43 IV. Summary Judgment Standards Summary judgment is appropriate only if the evidence reflects the absence of a genuine issue of material fact. Thomson v. Salt Lake County, 584 F.3d 1304, 1311 (10th Cir. 2009). In making this assessment, the evidence is viewed in the light most favorable to the party opposing summary judgment. Noland v. McAdoo, 39 F.3d 269, 271 (10th Cir. 1994). The Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987). The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Id. Summary judgment will not lie if the dispute about a material fact is “genuine,” that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no “genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). V. Argument 1. Defendant is Liable in his Official Capacity as Sheriff of Gunnison County Without any citation to supporting legal authority, Defendant argues that Plaintiff’s Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 43 of 77 44 claim against him in his official capacity as Sheriff of Gunnison County should be dismissed because Plaintiff fails to come forth with facts that would “implicate liability to the Sheriff’s Office itself”. Defendant’s Mot. Summ. J., p. 17. An official capacity suit is another way of pleading an action against an entity of which an officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985); McDonald v. Wise, 769 F.3d 1202, 1215 (2014) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978)). An official capacity suit is in all respects other than name to be treated as a suit against the entity. Kentucky v. Graham, 473 U.S. at 166; Johnson v. Bd. of Cty. Comm'rs for Cty. of Fremont, 85 F.3d 489, 493 (10th Cir. 1996); Myers v. Okla. City. Bd. of Cty. Comm'rs, 151 F.3d 1313, 1316 n. 2 (10th Cir. 1998). Here, Defendant maintains that his ability to terminate Plaintiff is derived from his authority as Sheriff of Gunnison County. The termination letter presented to Plaintiff expressly invokes his “duties as Gunnison County Sheriff”. [Defendant’s SUMF, ¶ 54]. He claims legal authority to terminate Plaintiff based on C.R.S. §30-10-105 which Defendant claims “provides Sheriffs exclusive control over the hiring and firing of their employees”. Defendant’s Mot. Summ. J., p. 37. Defendant’s Brief attempts to argue that Plaintiff’s termination was justified because Plaintiff’s continued employment “would undermine the Sheriff Office’s efficient performance.” Defendant’s Mot. Summ. J., p. 20. Defendant, with the help of Gunnison County attorneys Trezise and Baumgarten, secretly drafted and adopted an office policy for the specific purpose of terminating Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 44 of 77 45 Plaintiff. [Defendant’s SUMF, ¶¶ 47-50; Plaintiff’s SADF, ¶¶ 91-93]. “The Sheriff’s decision to draft and implement this policy was directly related to his decision to revoke Jackson’s appointment.” [Defendant’s SUMF, ¶ 48]. There is no question that Plaintiff’s official capacity claim against Defendant as Sheriff of Gunnison County is properly plead and supported by the facts. 2. Defendant is Not Entitled to Qualified Immunity The doctrine of qualified immunity shields government officials from liability when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Once qualified immunity is raised by a defendant, the plaintiff has the burden of demonstrating that the defendant’s actions violated a constitutional right and the right was clearly established at the time of defendant’s conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). In order for the law to be deemed clearly established, “there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Martinez v. Carr, 479 F.3d 1292, 1295 (10th Cir. 2007) (citations omitted). In resolving a motion to dismiss based on qualified immunity, a court looks at: “(1) whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of defendant's alleged Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 45 of 77 46 misconduct.” Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th Cir. 2011). Here, the evidence establishes violation of Plaintiff’s constitutional rights. A. Defendant Violated Plaintiff’s Freedom of Speech “The First Amendment prohibits the government from punishing a person for exercising the right to free speech.” Deutsch v. Jordan, 618 F.3d 1093, 1097 (10th Cir. 2010). It is “essential” that public employees be able to speak out freely on matters of public concern without fear of retaliation. Connick v. Myers, 461 U.S. 138, 149 (1983). “Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech.” Rankin v. McPherson, 483 U.S. 378, 384 (1987). There is abundant evidence supporting the conclusion that Defendant’s termination of Plaintiff was in retaliation for Plaintiff’s campaign speech and activities. It is undisputed that Plaintiff was a highly decorated officer whose career with the Sheriff’s Office spanned four decades. [Plaintiff’s SADF, ¶¶ 68-69]. He always received excellent evaluations and numerous commendations from Defendant himself. [Plaintiff’s SADF, ¶¶ 72-73]. His personal commendations of Plaintiff are nothing short of glowing. [See Depo. Ex. 51-72]. Prior to 2014, Defendant never considered terminating Plaintiff. [Plaintiff’s SADF, ¶ 75]. As late as December 20, 2013 (two months prior to Plaintiff’s announcement of his candidacy), Defendant thanked Plaintiff “for another incredible year. I have always taken Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 46 of 77 47 comfort in being able to rely on your wisdom and down to earth approach to law enforcement. I enjoy the side bars that we have and admire the consistency you bring to our agency.” [See Depo. Ex. 72]. Following Plaintiff’s announcement and as the campaign progressed, Defendant became “incensed” with Plaintiff’s campaign and specifically statements allegedly made by Plaintiff and his supporters throughout the campaign. [Plaintiff’s SADF, ¶¶ 83-84]. In his diary of the campaign, Defendant reveals himself to be obsessed with what he perceived as unforgivable attacks brought upon him by Plaintiff and his campaign supporters. [Plaintiff’s SADF, ¶ 83; Depo. Ex. 78, ¶8]. (“Throughout the months there are many letters for Jackson that are preoccupied with a platform of negativity and what I have done so wrong rather than his dynamics and how he will improve the operations of the office. I find myself incensed by the inaccuracies and imaginations of those who have written such fiction.”) By Defendant’s own admission, his behavior toward Plaintiff took a very different turn as a result of the campaign. [See, e.g., Defendant’s SUMF, ¶ 19] (“Sheriff Besecker decided Jackson would not be evaluated because he was concerned that Jackson would view the evaluation as retaliatory and/or use the evaluation as an issue in the campaign’); Id. ¶ 31 (“Every decision the Sheriff made was suddenly labored because he felt it would be subject to scrutiny both from employees at the Sheriff’s Office and from the press who was covering the campaign.”). Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 47 of 77 48 Courts employ a five-step test derived from Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) and Pickering v. Board of Education, 391 U.S. 563 (1968) to determine whether a public employee’s First Amendment rights have been infringed by an employer.14 Courts must consider: (1) whether the speech was made pursuant to an employee's official duties; (2) whether the speech was on a matter of public concern; (3) whether the government's interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff's free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct. Leverington, 643 F.3d at 724; see also Koch v. City of Hutchinson, 847 F.2d 1436, 1440 (10th Cir. 1988) (noting that Pickering and its progeny “establish the basic framework for analyzing a claim by a public employee that his or her governmental employer made an adverse employment decision in violation of the employee's First Amendment rights”). The first three steps are matters of law for the court to decide, while the last two steps are for the fact finder. See Deutsch, 618 F.3d at 1098. The application of this test to the facts of this case are set forth below. i. Plaintiff’s Campaign Speech Was Not Voiced as Part of His Official Duties 14 Prior to Garcetti, the test was sometimes referred to as the “Pickering/Connick” Test. See, e.g., Kent v. Martin, 252 F.3d 1141, 143 (10th Cir. 2001). Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 48 of 77 49 Defendant’s Brief does not address this prong of the Garcetti/Pickering test. Nevertheless, there can be no dispute that Plaintiff was speaking at all times as a candidate for elected office and not pursuant to his official duties as Patrol Lieutenant. ii. Plaintiff’s Campaign Undoubtedly Relates to Matters of Public Concern Speech on matters of public concern is that speech which lies “at the heart of the First Amendment’s protection”. First Nat. Bank v. Bellotti, 435 U.S. 765, 776 (1978). Such speech is essential to our system of self-government. Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). The 10th Circuit recognizes that campaign speech by a person seeking elective office inherently invokes matters of public concern. See, e.g., Cragg v. City of Osowatomie 143 F.3d, 1343, 1346 (10th Cir. 1998) (“We would be hard pressed to classify the election of a city council member as anything other than a matter of great public concern”); Kent, 252 F.3d at 1144 (citing Jantzen v. Hawkins, 188 F.3d 1247 (10th Cir. 1999)) (An employee’s candidacy for public office “undoubtedly relates to matters of public concern”). The 10th Circuit recognizes that an election of a county sheriff invokes matters of public concern. Jantzen, 188 F.3d at 1257. Defendant concedes that Plaintiff’s candidacy for office “likely relates to matters of public concern.” Defendants’ Mot. Summ. J., p. 19. In making such concession, Defendant tends to gloss over the importance of the issues that were raised and discussed by both candidates’ campaigns as they sought elective office. See Plaintiff’s response to Defendant’s SUMF, ¶¶ 4-7; Plaintiff’s SADF, ¶¶ 78-79, 81. Defendant’s Brief is silent on Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 49 of 77 50 the importance of speech on matters of public concern both candidates engaged in. Matters such as the loss of the victim’s advocate program, the loss of the Crested Butte substation, gun control, immigration and its effect on law enforcement, confidentiality contracts for police officers, the delivery of law enforcement services to the county -- to name just a few of the matters that were discussed in the course of the 2014 campaign for Gunnison County Sheriff -- were of great public concern to the voters as they weighed their choices for their next sheriff. Free and open debate on these issues is vital to informed decision-making by the electorate. Pickering, 391 U.S. at 571-572. iii. Plaintiff’s Right to Political Expression Prevails Over Defendant’s Stated Interests in Terminating Him a. Plaintiff Engaged in Core First Amendment Speech The First Amendment’s “constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office” (Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (cited by Jantzen v. Hawkins, 188 F.3d at 1257)), and to speech uttered during a campaign for political office. Citizens United. v Fed. Election Comm’n, 558 U.S. 310, 339 (2010) (“Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the public”). Speech about the qualifications of candidates for public office is “at the core of our First Amendment freedoms”. Republican Party of Minn. v. White, 536 U.S. 765, 774 (2002). There can be no dispute Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 50 of 77 51 that Plaintiff engaged in core First Amendment speech made during the course of his campaign for elective office. b. Defendant’s Termination Was Not Based on a Legitimate Governmental Concern Regarding Efficiency of Operations As a threshold matter, the 10th Circuit has “cautioned that the employer cannot rely on purely speculative allegations that certain statements caused or will cause disruption” in the provision of government services. Dixon v. Kirkpatrick, 553 F.3d 1294, 1304 (10th Cir. 2009). The employer must cite to either actual disruption or reasonable predictions of disruption supported by specific evidence. Jantzen, 188 F.3d at 1257. Indeed, this prong of the Pickering/Garcetti test “actually places a substantial threshold burden on the employer before balancing is even considered.” Trant v. Oklahoma, 426 Fed.Appx. 653, 661 (10th Cir. 2011) (citing Dixon, 553 F.3d at 1304). The employer must show that the restriction is necessary to prevent the disruption of official functions or to insure effective performance by the employee. Unless the government employer can show that the termination was based on legitimate reasons grounded in the efficient conduct of business, there is no need to proceed to balancing. The First Amendment interest of the plaintiff prevails. Id. see also Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1207 (10th Cir. 2007) (the employer bears the burden of justifying its regulation of the employer’s speech). The employer’s burden is a “true burden of demonstration, not a mere matter of hypothetical articulation. Trant, 426 Fed.Appx. at 661 (italics in original). Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 51 of 77 52 Defendant cannot meet this burden of demonstration. The evidence supports a finding that Defendant’s actual reason for terminating Plaintiff had nothing to do with efficient operations of the Sheriff’s Office, the disruption of official functions, or insuring effective performance by the employee. Instead, Defendant’s termination of Plaintiff was in direct retaliation for his candidacy. Defendant admitted he made his termination decision because Plaintiff “yielded no willingness to plead for his job” in their November 10, 2014 meeting. [See Plaintiff’s SADF, ¶ 90]. Defendant thought it was “presumptuous” for Plaintiff to believe that after losing the campaign, “he was entitled to go on with his career without a hiccup”. Id.15 Pickering does not require the Court to engage in a constitutional balancing where an employer’s termination decision is premised on the proverb “to the victor go the spoils.” Id. Similarly, Pickering does not require the Court to engage in constitutional balancing based on Defendant’s perception that Plaintiff’s mere presence was a challenge to his authority or based on his fear that others would construe Plaintiff as his equal. [Defendant’s SUMF, ¶ 23; Plaintiff’s SADF, ¶ 90]. In light of this evidence, there is no need for this Court to engage in a Pickering/Garcetti balancing. Plaintiff’s First Amendment interest prevails. Trant, 426 Fed.Appx. at 661; Dixon, 553 F.3d at 1304; Brammer-Hoelter, 492 F.3d at 1207. 15 Defendant gave conflicting testimony as to the timing of his decision to terminate Plaintiff. At one point in his deposition he said it was after the November 10, 2014 meeting. At another, he said it was after the November 18, 2014 meeting. Taking the evidence in a light most favorable to Plaintiff, the evidence points to a November 10, 2014 termination decision. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 52 of 77 53 c. The Balancing of Interests Favors Plaintiff Even if the Court were to engage in a Pickering/Garcetti balancing, the balancing weighs heavily in Plaintiff’s favor. Defendant fails to offer any evidence that Plaintiff caused the law enforcement services offered by the Gunnison Sheriff’s Office to be disrupted. To the contrary, the overwhelming evidence points to a lack of disruption in the Gunnison County Sheriff’s Office caused by Plaintiff’s political speech and candidacy. See Plaintiff’s Response to SUMF, ¶11, 34. Defendant fails to cite any instance in which the Gunnison Sheriff’s Office failed to deliver essential services to the public either during the course of the campaign or after the election. Defendant fails to cite any instance in which any individual member of the Sheriff’s Office, including Plaintiff, failed to perform his or her duties as a result of Plaintiff’s campaign. There is no evidence that the Sheriff Office failed to function in any material way as a result of Plaintiff’s campaign. In Kent v. Martin, 252 F.3d 1141 (10th Cir. 2001), an Oklahoma deputy county clerk ran for the office of County Clerk against the incumbent clerk who also was her employer. During the election she criticized her employer’s job performance and her remarks were published in the local newspaper. Her employer terminated her six months following the election. The clerk sued, alleging her termination violated the First Amendment. Id. at 1142-1143. Applying the Pickering/Connick test and citing Jantzen, the district court granted summary judgment in favor of the employer on the basis of deference to the employer’s “reasonable predictions of disruption.” Id. at 1144. The court Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 53 of 77 54 of appeals reversed, holding that evidence of actual disruption was required in order to tip the balance between the employee’s right to speech and the employer’s interest in maintaining an effective workplace in favor of the employer. Id. at 1144. The court of appeals distinguished Jantzen, where the employer sheriff terminated his deputy immediately after the deputy announced his intention to run for election against the sheriff. In that instance, the court of appeals found that the sheriff’s predictions of disruption were reasonable and entitled to deference. Id. By contrast, “[s]ix months after the employee’s expression, a so-called ‘prediction’ of disruption would be meaningless to justify their termination, and under our case law evidence of actual disruption would be required to outweigh the employee’s interest in their speech.” Id. The court of appeals further held that in a situation where there was a significant time lapse between the speech and the termination, the employer’s prediction of disruption would not be entitled to deference. Id. “In this case, because Martin’s alleged fear of disruption did not lead him to fire Kent immediately, defendants must show actual disruption in order to articulate an interest in regulating Kent’s speech six months after the fact.” Id.; see also Prager v. LaFaver, 180 F.3d 1185 (10th Cir. 1999) (requiring the employer to show an “actual disruption of services” which results from the speech). Defendant points to two instances that purport to suggest some level of office inefficiency caused by Plaintiff’s campaign: the alleged request by some supervisor(s) in the detention unit not to meet with Plaintiff for joint supervisor meetings and Plaintiff’s Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 54 of 77 55 participation in PPCT training. The evidence respecting both of these instances does not credibly support a conclusion that Plaintiff’s candidacy disrupted operations sufficient to overcome Plaintiff’s right to free speech. There is conflicting evidence as to who within the jail unit requested separate meetings from patrol. There is conflicting evidence as to when the joint meetings stopped. The meetings had questionable importance to the operations of the Sheriff’s Office in the first place. While the goal of increasing communication between the jail and patrol units may be laudable, the meetings were not mandatory to attend. They were sporadically held in any event. They tended to be unproductive even when the joint supervisors met. Plaintiff’s records establish that he attended supervisor meetings after announcing his candidacy without incident. Finally, after the election Plaintiff attended a joint meeting with jail supervisors without incident. See Plaintiff’s response to SUMF, ¶¶ 12-17. Similarly, there is no evidence whatsoever that Plaintiff disrupted PPCT trainings or that the work of the trainings could not be done due to Plaintiff’s participation. According to the instructor Mr. Mykol, Plaintiff attended the trainings without incident and followed every order given to him while in attendance. See Plaintiff’s response to SUMF, ¶ 23. There is no evidence of any disruption in the office after the election was decided. See Plaintiff’s response to SUMF, ¶ 34. Mr. Barnes, Mr. Dooley, and Mr. Mykol all testified they would have continued working with Plaintiff had he not been terminated. Id. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 55 of 77 56 Mr. Barnes, Plaintiff’s immediate supervisor, testified that he trusted Plaintiff to perform his duties notwithstanding Plaintiff’s campaign and the election. Id. See also Plaintiff’s response to SUMF, ¶ 36 (Barnes stated that he “absolutely believes he would have Plaintiff’s back in a bad situation and that Plaintiff would have his back in a bad situation.”). Although Plaintiff was not terminated until March 17, 2015, over four months after election day and over a year since Plaintiff announced his candidacy in February of 2014, Defendant argues that “there was specific evidence to support his reasonable belief that Jackson’s continued employment would undermine the Sheriff’s Office’s efficient performance.” Defendant’s Brief at P. 20. Due to the timing of Plaintiff’s termination, that belief is not entitled to deference. Kent, 252 F.3d at 1144. Further, that belief is undermined by the overwhelming evidence that the services provided by the Gunnison Sheriff’s Office were not actually disrupted by Plaintiff’s campaign speech either before or during the four plus months after the election while Plaintiff remained employed. Prager v. LaFaver, 180 F.3d 1185 (10th Cir. 1999). Further, that contention is undermined by Defendant’s critical admission that he decided to terminate Plaintiff on November 10, 2014 after he perceived Plaintiff to not sufficiently plead for his job. [See Plaintiff’s SADF, ¶ 90]. Defendant’s reliance on Maxfield v. Bressler, No. 12-CV-2970-WJM-NYW, 2015 WL 1525036 (D. Colo. Mar. 31, 2015) is misplaced. In Maxfield, an employee of a county Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 56 of 77 57 paramedic agency was terminated after he met with a county commissioner and discussed agency operations without the knowledge or permission of his supervisor, who was the director of the agency. Id. at *2. In so doing, the employee failed to follow the proper chain of command. In the meeting, he provided the commissioner with financial information regarding agency spending that turned out to be very inaccurate. The employee was terminated and sued on First Amendment grounds, arguing that his termination violated his right to free speech and to petition. Id. at *2. The defendant director moved for summary judgment on the First Amendment claim and on the grounds of qualified immunity. The court denied summary judgment on the employee’s First Amendment claims. Undertaking an analysis pursuant to Pickering/Garcetti, the court found that the employee’s speech raised matters of public concern notwithstanding evidence suggesting that the employee recklessly provided the commissioner with false information. Id. at *4. With respect to the third prong of the test, the employer argued that the employee was terminated because the meeting resulted in time and resources being diverted to investigate the information provided to the commissioner, because the employee failed to follow the chain of command, and because the employee’s actions created a lack of trust in his judgment which would have caused future disruption if the employee remained employed. Id. at *5. Although the court noted that the employee appeared to be reckless in the way he transmitted the information in the meeting, the court denied summary Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 57 of 77 58 judgment to the employer, finding that the balancing tipped in the employee’s favor. Id. at *7. In so holding, the court noted that the government interest cited by the employer was “minimal”. Id. Unlike the employee in Maxfield who failed to follow a chain of command and recklessly provided misinformation to a commissioner in a private conversation, Plaintiff stood for election to be Sheriff of Gunnison County. His speech constituted core First Amendment political speech. To the extent Defendant relies on Maxfield for the proposition that the truth or falsity of the speech can be considered while engaged in a Pickering balancing analysis, Plaintiff denies ever speaking falsely during the campaign and Defendant has failed to identify any specific statement that has proven to be false. See Plaintiff’s response to SUMF, ¶¶ 4-8, 25. At the summary judgment stage the evidence is viewed in the light most favorable to the party opposing summary judgment. Noland v. McAdoo, 39 F.3d 269, 271 (10th Cir.1994). In Maxfield, even after finding that the employee engaged in spreading misinformation (which Plaintiff denies doing here), the Maxfield court nevertheless held in favor of the employee on the third prong of the Pickering test. Neither Lytle v. City of Haysville, 138 F.3d 857 (10th Cir. 1998) nor Fields v. City of Tulsa, 753 F.3d 1000 (10th Cir. 2014) support placing Defendant’s interests above Plaintiff’s right to political speech. Lytle concerned the termination of a police officer for accusing his fellow officers of committing murder by failing to render emergency aid to a Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 58 of 77 59 person one of the police officers shot. Lytle, 138 F.3d at 861. Applying Pickering, the court of appeals found that the plaintiff officer had not pursued official channels of communication to pursue the allegations (instead he made the statements to a lawyer representing the victim’s wife and the press), drew unreasonable conclusions about the fellow officer’s conduct and unreasonably alleged a “cover up” of the murder. Id. at 865- 866. After the allegations were made his fellow officers distrusted the plaintiff and refused to speak with him. Id. at 862. The court of appeals held that the diminished value of the plaintiff’s speech was outweighed by the employer’s interests in the effective functioning of the police department. Id. at 868. In Fields, the plaintiff police officer refused to attend an Islamic function at a mosque that was organized to give appreciation to local law enforcement. His supervisors requested that he and the officers under his command attend in order to promote community relations. The plaintiff refused on religious grounds and he was disciplined for his refusal. Id. at 1007-1008. The plaintiff sued his employer for violation of his First Amendment freedom of religion. Id. He then sought to amend his complaint to allege that his discipline was retaliation for his suit in violation of his right to free speech. Id. The court of appeals upheld the district court’s denial of his motion to amend, holding that under the third prong of the Pickering test, the employer’s interest in effective operations outweighed the plaintiff’s rights to speech because his challenge to a superior’s order, by Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 59 of 77 60 disobedience or by litigation, sets a powerful example and threatened to undermine his authority as a commander. Id. at 1015. Unlike in Lytle, where the employee alleged that his fellow officers committed murder in conversations with an attorney and the press, Plaintiff engaged in speech exclusively in the context of a political campaign. See Lytle, 138 F.3d at 863-864 (balancing requires the court to consider the manner, time, and place of the employee’s expression). Plaintiff certainly never came remotely close to accusing his colleagues of murder. He denies even questioning Defendant’s credentials or suggesting Defendant misrepresented his number of years in law enforcement which at any rate is very mild compared to a murder accusation. See Plaintiff’s response to SUMF, ¶3. Unlike Fields, there is no evidence that Plaintiff ever disobeyed a direct order or that the reason for his termination was due to his failure to obey a direct order. See Plaintiff’s response to SUMF, ¶¶ 11, 34.16 Defendant appears to argue that Plaintiff’s candidacy, in and of itself, constituted an act of insubordination that justified his termination. There is no authority to support such a proposition. A political campaign, by its nature, is a public debate about which candidate is best for the job. Republican Party of Minn., 536 U.S. at 781-782 (speech about the qualifications of candidates for public office is at the core of First Amendment 16 Defendant’s reliance on Rock v. Levinski, 791 F.3d 1215 (10th Cir. 2015) is similarly misplaced based on the differences in the time, place, and manner of Rock’s speech. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 60 of 77 61 freedoms). “The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.” Id. (quoting Wood v. Georgia, 370 U.S. 375, 395 (1962)). If Defendant could legally terminate Plaintiff on the mere grounds that he perceived Plaintiff’s campaign as a challenge to his authority, or even as a challenge to his “choices and policies,” then Plaintiff’s rights to political speech would be completely eviscerated. That result would be directly contrary to applicable First Amendment jurisprudence, which cautions that “[v]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech.” Rankin v. McPherson, 483 U.S. 378, 384 (1987). iv. Plaintiff’s Protected Speech was a Motivating Factor in His Termination Defendant’s Brief does not address the fourth and fifth prongs of the Pickering/Garcetti test. Nevertheless, Plaintiff offers compelling evidence both that Plaintiff’s campaign speech was a motivating factor in his termination and that he would not have been terminated if he had not run for sheriff against Defendant. B. Defendant Violated Plaintiff’s Freedom of Political Association The First Amendment protects public employees from discrimination based upon their political beliefs, affiliation, or non-affiliation unless their work requires political Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 61 of 77 62 allegiance. Elrod v. Burns, 427 U.S. 347 (1976); Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1451 (10th Cir. 1997); Jantzen, 188 F.3d at 1251. A plaintiff must demonstrate a genuine dispute of fact that (1) political affiliation and/or beliefs were “substantial” or “motivating” factors behind a dismissal and (2) the plaintiff’s employment positions do not require political allegiance. Mason, 115 F.3d at 1451; Jantzen, 188F.3d at 1251. There is sufficient evidence supporting the conclusion that Defendant’s termination of Plaintiff was in retaliation for his association with the local Democratic Party members who supported Plaintiff’s campaign. [See Plaintiff’s SADF, ¶ 84; see also Depo. Ex. 78]. In Depo. Ex. 78, Defendant repeatedly disparages Plaintiff and his Democratic supporters, using inventive and derogatory terms to describe them such as the “Blue Gang” (Id., ¶ 23), the “Blue Rash” (Id., ¶ 24) and the “Blue Plaque” (Id., ¶ 28). He accuses the Democrats of spreading rumors around the county about Defendant (Id., ¶ 12), of having a preoccupation with disgracing Defendant (Id., ¶ 24), of stacking the newspapers with untruths about Defendant (Id., ¶ 28), and of being indifferent to the facts and the truth (Id., ¶ 34). Depo. Ex. 78 reveals that Defendant’s mind, there is no difference between Plaintiff, on the one hand, and his Democratic supporters, on the other. See, e.g., Depo. Ex. 78, ¶ 34 (“Throughout this process I have been continuously disappointed with the indifference my opponent and the Blue Plaque has towards facts and the truth”); ¶ 24 (complaining that the “Blue Rash” “stacked” the Crested Butte forum with an “onslaught” in support of Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 62 of 77 63 Plaintiff). Considering the vitriol Defendant expresses for Plaintiff and the local Democrats, a reasonable jury could find that Plaintiff’s association with Democratic politics was a substantial or motivating factor in his termination. Defendant’s Brief does not assert that Plaintiff’s job as Patrol Lieutenant required a duty of political loyalty to Defendant. Defendant can offer no evidence that it did. See Branti v. Finkel, 445 U.S. 507, 518 (1980) (the operative inquiry is not whether the employee held a policymaking or confidential position, but instead whether the employer can demonstrate that party affiliation is an appropriate requirement for the effective performance of the job). Plaintiff denies that his job required a duty of political loyalty. See Plaintiff’s Response to SUMF, ¶1. C. Plaintiff’s Rights Were Clearly Established at the Time of His Termination There can be no dispute that at the time of Plaintiff’s termination, it was clearly established that that public employment cannot be conditioned on a basis that infringes the employee's constitutionally protected interest in freedom of expression (Connick, 461 U.S. at 142; Pickering, 391 U.S. 563) and that public employees must be able to speak out freely on matters of public concern without fear of retaliation. Connick, 461 U.S. at 149. In Lincoln v. Maketa, Judge Arguello recently held that the officials within the El Paso County Sheriff’s Office, including the former sheriff, are not entitled to qualified immunity from claims by their subordinates that the subordinates were disciplined for Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 63 of 77 64 filing an EEOC complaint alleging sexual discrimination in the workplace. Lincoln, No. 15-CV-00423-CMA-KMT, 2016 WL 1258988, at *10 (D. Colo. Mar. 31, 2016). Judge Arguello, citing Pickering and Connick, found that it was clearly established that their First amendment rights were violated if they were subjected to retaliation for their protected speech. Id.17 Here, not only was it clearly established that Plaintiff’s termination was an infringement on his First Amendment rights, but there is evidence to support the conclusion that Defendant knew Plaintiff’s termination was constitutionally suspect and based on that knowledge, Defendant engaged in a scheme with the assistance of the Gunnison County attorneys to effect a termination of Plaintiff in a way that would insulate Defendant from liability. Defendant planned on terminating Plaintiff for his campaign activities prior to the November 4, 2014 election. [See Plaintiff’s SADF, ¶86]. Mr. Trezise’s admonition in mid-October of 2014 that it was not so “simple and easy” to terminate Plaintiff pursuant to C.R.S. §30-10-506 led to the adoption of the November 24, 2014 “Policy Regarding the Revocation of Appointment of a Deputy Sheriff”. The adoption of the policy, in and of itself, is evidence of an attempt by Defendant to cover up the actual reasons for Plaintiff’s termination. The November 24, 2014 policy, which Defendant admits was “directly related to his decision to revoke Jackson’s 17 Judge Arguello’s order denying summary judgment is on appeal to the 10th Circuit and the appeal has been designated with a Case No. 16-1127. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 64 of 77 65 appointment”, was adopted in secrecy, a far departure from the process by which previous office policies had been adopted. [See Plaintiff’s SADF, ¶92-93; see also Depo. Ex. 20]. The policy was written so as to allow Defendant to avoid having to articulate to Plaintiff specifics as to why Plaintiff was being dismissed. [Depo. Ex. 20, Section III (stating that the policy “[d]oes not create or infer for the deputy any right of due process or otherwise, including but not limited to written explanation beyond the notification, presentation of witnesses or documents, an opportunity for examination of the Sheriff, representation by counsel or a third party, or further explanation by the Sheriff.”) (emphasis added)].18 Sheriff Darr’s admonition on or about November 17, 2014 that Plaintiff’s termination “may cost after everything is said and done but…will be worth it” could be construed by a reasonable jury as evidence that Defendant knew his termination of Plaintiff was improper. [Plaintiff’s SADF, ¶ 91]. Even after the adoption of the November 2014 policy, Defendant worked on developing a pre-textual cause for terminating Plaintiff on grounds other than his candidacy. [Plaintiff’s SADF, ¶¶ 96-99]. A reasonable jury could find that the mysterious notes contained in Depo. Ex. 45, 47, and 49 were evidence of an attempt by Defendant to develop false grounds for Plaintiff’s termination. 18 None of the highly restrictive language Defendant input into his policy is found in the text of C.R.S. §30-10-506. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 65 of 77 66 There is direct evidence that in February of 2015 Defendant and Mr. Trezise discussed using Plaintiff’s work on timesheets as a pretext for his termination. [Plaintiff’s SADF, ¶ 97 (“Unfortunately, I think the timesheets are going to be less compelling than we intended”)]. Today, Defendant acknowledges that Plaintiff’s termination was due to his candidacy. “Sheriff Besecker felt that Jackson’s presence as an opponent was a challenge to his authority”. [Defendant’s SUMF, ¶ 32]. However, Defendant only recently has admitted that Plaintiff’s termination was due to his candidacy. Prior to this admission, Defendant offered patently false reasons for Plaintiff’s termination that he has since disavowed. [Plaintiff’s SADF, ¶¶ 99-101]. He has cited complaints against Plaintiff by other law enforcement officers as another basis for Plaintiff’s termination. Investigation has revealed the phantom complaints as completely without factual basis. [Plaintiff’s SADF, ¶¶ 102-103]. A reasonable jury could find that the actions Defendant took leading into Plaintiff’s termination and the positions he adopted since Plaintiff’s termination were part of a scheme intended to hide the real reasons for his termination because Defendant knew that Plaintiff’s termination on the basis of his candidacy was constitutionally impermissible. Defendant’s refusal to explain to Plaintiff the basis for his termination at his termination “hearing” on March 17, 2015 constitutes a final effort to hide Defendant’s actual reasons for Plaintiff’s termination. [Plaintiff’s SADF, ¶104]. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 66 of 77 67 Defendant cannot be entitled to qualified immunity under these facts. 3. Genuine Issues of Material Fact Preclude Summary Judgment on Plaintiff’s ADEA Claims In relevant part, the Age Discrimination in Employment Act (“ADEA”) provides that it is unlawful for an employer to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of his age. 29 U.S.C. § 623(a). Due to the nature of such claims, plaintiffs do not have to produce direct evidence of discrimination to survive a motion for summary judgment; rather, a party may rely on the proof scheme as established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802- 04 (1973). See Lucas v. Dover Corp., Norris Div., 857 F.2d 1397, 1400 (10th Cir. 1988). Under the McDonnell Douglas burden-shifting framework, a plaintiff must produce evidence sufficient to create a material dispute as to each element of the prima facie case. McDonnell Douglas, 411 U.S. at 802. These elements include: (1) the plaintiff is within the protected age group; (2) he was doing satisfactory work; (3) he was discharged; and (4) his position was filled by a younger person. See Rivera v. City & Cty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004). Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 67 of 77 68 In this case, Defendant concedes that Plaintiff was within the protected age group and that he was discharged. Defendant has admitted under oath that Plaintiff was not “revoked because of any performance issues”, thus satisfying Plaintiff’s burden respecting the second element. There is a genuine dispute of material fact regarding the fourth element required under McDonnell Douglas. The records supports a finding that Jackson’s position was filled by a younger person. Defendant cites the 10th Circuit’s decision in Furr v. Seagate Technology, Inc., which established that a plaintiff cannot maintain an ADEA claim when his responsibilities were “divided up and absorbed by . . . existing employees and no new person took over his former responsibilities[.]” Furr v. Seagate Technology, Inc., 82 F.3d 980, 988 (10th Cir. 1996). The court found that “[t]he test for position elimination is not whether the responsibilities were still performed, but rather whether the responsibilities still constituted a single, distinct position.” Id. However, the 10th Circuit has held that the test established in Furr is “inapposite [when] … the particular circumstances … that arise from a company’s decision to institute a reduction in its workforce (RIF)” are not present. Abuan v. Level 3 Communications, Inc., 353 F.3d 1158, 1168 (10th Cir. 2003). In Abuan no RIF was involved, so the court found that evidence that prior work was “divided up among three younger workers instead of being performed by a single replacement” was “more than adequate to raise an inference” of discrimination. Id. at 1170. Like Abuan, this case does not involve a reduction in force, so evidence that work Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 68 of 77 69 was divided up among younger employees is sufficient to raise an inference of discrimination. Defendant argues that even if Plaintiff establishes the prima facie elements of an ADEA claim, the Sheriff articulated a legitimate non-discriminatory reason for revoking Jackson’s appointment. However, as Defendant explains, an employee can show pretext with regard to the employer’s claimed legitimate, non-discriminatory reason when there are “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions.” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir. 2007). Here, there is significant evidence allowing a rational trier of fact to find Sheriff Besecker’s proffered reasons unworthy of belief in light of the compelling evidence that he attempted to manufacture pretexts for Plaintiff’s termination and that he wanted Plaintiff to plead for his job. Furthermore, Defendant’s remarks about his physical superiority over Plaintiff, Defendant’s reference to Plaintiff’s “degeneration of cervical structure and reconstruction of shoulder/arm,”19 and “no family structure” all imply perceived deficiencies due to Plaintiff’s age. [See Plaintiff’s SADF, ¶ 85; see also Depo. Ex. 76]. Indeed, Defendant appears particularly obsessed with the “unborn child [the Jacksons] never will have.” [See Ex. 14]. Defendant’s denial that he authored Depo. Ex. 76 and his daughter’s conflicting testimony as to authorship also leads to a reasonable finding that 19 After the election, Defendant “expected reasonable consideration and appreciation for carrying [Plaintiff] for 10-11 months on guarded duty after surgery” for Plaintiff’s degenerative neck problems. See Depo. Ex. 78, ¶ 40. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 69 of 77 70 Defendant’s proffered reasons are not worthy of belief. 4. Plaintiff’s Conduct Does Not Fall Within the “Conflict of Interest” Exception to C.R.S. §24-34-402.5 C.R.S. §24-34-402.5 establishes that it is a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours….” Id. Plaintiff’s campaign activities fall squarely within this statutory prohibition. Defendant offers no evidence that Plaintiff conducted any campaign activities during working hours. The undisputed evidence is that Plaintiff did not do so. [Plaintiff’s SADF, ¶82]. There is no dispute that Plaintiff’s campaign activities were unlawful. Citing Marsh v. Delta Air Lines, Inc., 952 F.Supp. 1458 (D. Colo. 1997), Defendant argues that Plaintiff’s campaign activities were a breach of his duty of loyalty to Defendant and therefore Plaintiff’s conduct falls outside the protections offered by the statute. The plaintiff in Marsh was terminated for writing a letter criticizing his employer to the newspaper. The court found that the nature of his speech was the public airing of a private grievance and was not, as the plaintiff had argued, in the nature of a communication from “whistleblower”. Id. at 1463. The court held that one of the bona fide occupational requirements encompassed within the scope of the statute was an implied duty of loyalty with regard to public communications that employees owe to their employers. Marsh cannot be read to mean that Plaintiff’s off-duty political speech in the context Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 70 of 77 71 of his candidacy for Sheriff is unprotected by C.R.S. §24-34-402.5. Such an interpretation itself raises constitutional questions. Again, Defendant appears to argue that Plaintiff’s candidacy, in and of itself, constitutes a breach of a duty of loyalty owed by Plaintiff to Defendant. Defendant offers no legal authority in support of that contention. Marsh did not involve political speech. Defendant can point to no “bona fide occupational requirement” here that prohibited Plaintiff from running for sheriff. Defendant agreed that he did not have a greater right to the office of sheriff by virtue of his incumbency, that Plaintiff had a right to seek the office, that Plaintiff had a First Amendment right to speak out in the campaign, and that Plaintiff had a First Amendment right to associate with supports during his campaign while off duty. [Ex. 2, Besecker Depo., pp. 69:15-70:4]. Defendant’s own testimony contradicts his argument that Plaintiff’s candidacy constituted a “conflict of interest” falling within an exception to C.R.S. §24-34-402.5. Plaintiff also asserts that C.R.S. §24-34-402.5 does not provide for a “mixed- motive” analysis. Watson v. Pub. Serv. Co. of Colo., 207 P.3d 860, 867 (Colo. App. 2008). The Colorado Court Appeals decision in Watson was the first to state that a mixed-motive analysis was not appropriate under this statute, and no decisions have expounded further upon this interpretation. See Id. However, in other discrimination cases, the Colorado Supreme Court has held that discharged employees can proffer evidence of pretext to invalidate an employer’s claimed legitimate, non-discriminatory reason. See Bodaghi v. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 71 of 77 72 Dept. of Natural Resources, 995 P.2d 288, 288 (Colo. 2000) (holding that it is “patently clear that in Colorado where a prima facie case of discrimination is proven and the reasons given by the employer as a legitimate, nondiscriminatory action are found to be a pretext for that discrimination, no additional evidence is required to infer intentional discrimination.” (internal quotations and citations omitted)). Here, as with the ADEA claim discussed above, there is significant evidence allowing a rational trier of fact to find Sheriff Besecker’s proffered reasons unworthy of belief in light of the compelling evidence that he attempted to manufacture pretexts for Plaintiff’s termination. 5. Plaintiff Has Standing to Claim that Defendant violated C.R.S. §30-10-506 Defendant contends that Plaintiff lacks standing to assert his seventh claim for relief for violation of C.R.S. § 30-10-506 (2015). This section provides, in pertinent part, that: Each sheriff may appoint as many deputies as the sheriff may think proper and may revoke such appointments at will; except that a sheriff shall adopt personnel policies, including policies for the review of revocation of appointments. Before revoking an appointment of a deputy, the sheriff shall notify the deputy of the reason for the proposed revocation and shall give the deputy an opportunity to be heard by the sheriff. This section does not expressly provide for a private civil remedy. In such cases, the Colorado Supreme Court has established a three-part test for determining whether a plaintiff has an implied private cause of action. Taxpayers for Public Education v. Douglas County School District, 351 P.3d 461, 468 (Colo. 2015) (citing Allstate Insurance Co. v. Parfrey, 830 P.2d 905 (Colo.1992)). These three factors include: “whether the plaintiff is within a class of persons intended to be benefited by the legislative enactment; whether the Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 72 of 77 73 legislature intended to create, albeit implicitly, a private right of action; and whether an implied civil remedy would be consistent with the purposes of the legislative scheme.” Parfrey, 830 P.2d at 911 (Colo. 1992). While the Colorado Supreme Court has not yet addressed whether C.R.S. § 30-10- 506 meets the three Parfrey factors, the current statutory language and the legislative history demonstrate that Plaintiff should be entitled to a private cause of action. C.R.S. § 30-10-506 was significantly amended by the Colorado legislature in 2006. [Ex. 17, Colorado General Assembly, House Bill 06-1181 (2006)]. Importantly, the General Assembly deleted the broad language that allowed a sheriff to revoke a deputy sheriff “at his pleasure.” Id. Instead, the General Assembly changed the language to provide that appointments can be revoked “at will; except that a sheriff shall adopt personnel policies….” Id. Further, the sheriff must now provide notice “of the reason” for the proposed termination, and then an opportunity to be heard. Id. The 2006 amendment also eliminated the sheriff’s liability to post official bond for default or misconduct of his sureties. Id. To gain a better understanding of the legislative intent behind the amendment, the notes from the Senate Committee on Local Government regarding House Bill 06-1181, which produced the 2006 amendment, should be persuasive to the Court. [See Ex. 17]. Senator Tochtrop, prime sponsor of the bill, explained that the main purpose of the amendment was to eliminate the “arcane and impractical” language that “currently allows Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 73 of 77 74 the county sheriffs to revoke appointments at their own pleasure.” Id. Sheriff Doug Darr, of the County Sheriffs of Colorado, testified on behalf of the bill, and explained that the bill was the product of a compromise between the County Sheriffs of Colorado and the Fraternal Order of Police. Id. According to Sheriff Darr, the statutory amendment was “crucial to providing due process within a sheriff’s department to give deputies the right to know why they are losing their jobs when they are fired.” Id.20 Scott Fitzgerald, of the Fraternal Order of Police, also testified in support of the bill, and similarly explained that the bill was necessary to “level the playing field by providing sheriff deputies due process rights.” Id. In essence, the General Assembly intended to give protections to deputy sheriffs in exchange for eliminating the sheriffs’ old financial liability for the deputies. See Id. Turning to analysis of the Parfrey factors, Plaintiff satisfies the first factor as he is within the class of persons intended to be benefited by the legislative enactment. The changes to the plain language of the statute in 2006 expressly limited the Sheriff’s discretion and afforded new protections to deputy sheriffs. As explained in the Committee Notes, the bill was intended “to give deputies the right to know why they are losing their jobs.” Id. Plaintiff surmises that this is why Mr. Trezise informed Defendant in mid-October that “after reading the 2006 update, he decided that it was no long [sic] simple and easy” to terminate Plaintiff. 20 This apparently is the same Sheriff Darr who advised Defendant to terminate Plaintiff and told him “it may cost after everything is said and done but it will be worth it.” See Ex. 1 to Doc 39. Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 74 of 77 75 The second Parfrey factor – whether the legislature intended to implicitly create a private right of action – is also satisfied in this instance. In arguing that this factor has not been met, Defendant relies on two unpublished decisions that discuss C.R.S. § 30-10-506 in the context of constitutional due process claims, not in the context of Parfrey. When considering the second Parfrey factor, the Colorado Supreme Court has looked to whether the statutory scheme in question provides administrative remedies to enforce its provisions. Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 923 (Colo. 1997). When there are applicable administrative remedies, the Colorado Supreme Court has discerned a “legislative intent to preclude a private civil remedy for breach of the statutory duty.” Id. In the present case though, like in Parfrey, the statute is “totally silent on the matter of remedy.” Parfrey, 830 P.2d at 910. Therefore, based on the lack of any administrative remedies, coupled with the objectives expressed in the Senate committee notes, it is appropriate to conclude that the legislature intended to implicitly create a private right of action. Considering the third factor, the purpose of the 2006 Amendment and the new legislative scheme would be substantially frustrated if deputy sheriffs were not entitled to a cause of action. See Colo. Ins. Guar. Ass’n v. Menor, 166 P.3d 205, 210 (Colo. App. 2007) (finding that the existence of a private civil remedy for CIGA to enforce the provisions of § 10–4–512 is consistent with the overall purposes of the legislative scheme as expressed in the Act). The legislative scheme, as amended, Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 75 of 77 76 eliminates the broad discretion previously afforded sheriffs, and now seeks to balance the discretion of the sheriff with new protections for the deputy sheriff, namely that he is entitled to know the specific reasons for his termination and have an opportunity to be heard. Defendant argues that even if a private right can be implied, the Sheriff complied with the statute. That contention is contradicted by the secret procedures employed by Defendant in adopting the November 24, 2014 policy, the admission that it was specifically adopted to terminate Plaintiff, the language in the policy stating that it does not create or infer for the deputy any right of due process, including but not limited to written explanation beyond the notification…or further explanation by the Sheriff,” and Defendant’s refusal to tell Plaintiff the reasons for his termination at his “hearing”. [Ex. 2, Besecker Depo., p. 176:3-20]. 6. Plaintiff Requests an Opportunity to Supplement His Response Pending Resolution of a Pending Motion and Receipt of Additional Discovery On June 6, 2016 the Court granted Plaintiff’s Motion to Compel respecting communications between Defendant and Gunnison County attorneys. Doc. 35. Based on the materials disclosed to Plaintiff pursuant to the Order, on July 1, 2016 Plaintiff requested this Court to modify the Scheduling Order to allow for the deposition of Art Trezise. Doc. 39. That motion has not yet been resolved. In addition, Plaintiff noted that certain documents produced in response to the Order may have been modified and were Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 76 of 77 77 incomplete. [Ex. 18, July 1, 2016 letter from Roger Sagal to Eric Ziporin and Jennifer Kemp]. As of this writing, Defendant has not produced any additional documents pursuant to the request contained in Ex. 18. For these reasons, pursuant to Fed.R.Civ.Pro. 56(d), Plaintiff requests that he be permitted to supplement this Response with any additional testimony that may be obtained from the depositions of Mr. Baumgarten and Mr. Trezise (if his deposition is allowed) and any additional documents that may be produced in response to Ex. 18. 7. Conclusion For the reasons set forth above, summary judgment should be denied. DATED at Ridgway, Colorado this 20th day of July, 2016. /s/ Roger F. Sagal Roger F. Sagal Sagal Law Group, LLC PO BOX 1168 RIDGWAY, CO 81432 (970) 596 4258 roger@sagalgroup.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 20th day of July, 2016, a true and correct copy of the above and foregoing PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT was electronically filed with the Clerk of Court using the CM/ECF system and served on the following: Eric M. Ziporin eziporin@sgrllc.com Anita D. Posey Case 1:15-cv-01182-JLK Document 42 Filed 07/20/16 USDC Colorado Page 77 of 77 Case 1:15-cv-01182-JLK Document 42-1 Filed 07/20/16 USDC Colorado Page 1 of 12 Case 1:15-cv-01182-JLK Document 42-1 Filed 07/20/16 USDC Colorado Page 2 of 12 A Case 1:15-cv-01182-JLK Document 42-1 Filed 07/20/16 USDC Colorado Page 3 of 12 Case 1:15-cv-01182-JLK Document 42-1 Filed 07/20/16 USDC Colorado Page 4 of 12 Case 1:15-cv-01182-JLK Document 42-1 Filed 07/20/16 USDC Colorado Page 5 of 12 Case 1:15-cv-01182-JLK Document 42-1 Filed 07/20/16 USDC Colorado Page 6 of 12 Case 1:15-cv-01182-JLK Document 42-1 Filed 07/20/16 USDC Colorado Page 7 of 12 Case 1:15-cv-01182-JLK Document 42-1 Filed 07/20/16 USDC Colorado Page 8 of 12 Case 1:15-cv-01182-JLK Document 42-1 Filed 07/20/16 USDC Colorado Page 9 of 12 Case 1:15-cv-01182-JLK Document 42-1 Filed 07/20/16 USDC Colorado Page 10 of 12 Case 1:15-cv-01182-JLK Document 42-1 Filed 07/20/16 USDC Colorado Page 11 of 12 Case 1:15-cv-01182-JLK Document 42-1 Filed 07/20/16 USDC Colorado Page 12 of 12 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 1 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 2 of 51 12 presence. It's a remote ranch located in a remote area of Saguache County and she thought it was a good idea. Q. Okay. And have you remained employed in law enforcement since 1972? A. With some intermission, yes. Q. When were those intermissions? A. 1980 approximately. Q. What was the reason for the intermission? A. I worked at Elmer Sporting Goods. It does not exist at the present date. Q. Did you resign from law enforcement? A. That's correct. Q. You were not terminated? A. No, I was not. Q. Why did you resign? A. I thought that it would benefit married life if I did not work night shifts. Q. Okay. And did you resume your law enforcement career? A. That's correct. Q. When? A. Late 1980, is what I'm thinking, approximately. Q. So you were only gone from law enforcement for a short period of time? A. Yes. Q. Is that correct? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 3 of 51 13 A. Yes. Q. How come you went back? A. I missed it. Q. Have you been in law enforcement consistently since 1980? A. To a degree. I worked part-time after the 1986 election. I worked for the Gunnison Police Department part-time. Q. What 1986 election are you talking about? A. Sheriff Murdie ran for the first time and I -- I worked for him, I'm thinking seven months approximately, as a jail administrator. Q. So you're talking about Sheriff Murdie's election as sheriff of Gunnison County in 1986? A. Yes. Q. And then you worked as a jail administrator for a short period of time and then left the -- A. Into 1987, yes. Q. 1987? A. Uh-huh. Q. And then you left the Gunnison Sheriff's Office? A. That's correct. Q. How come? A. I'm not a jail administrator. Q. Did you leave in 1987 because you were having 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 4 of 51 14 difficulties with Sheriff Murdie? A. No. Q. When did you come back to the Sheriff's Office? A. Perhaps '89. Q. Why did you come back? A. There was an opening at the airport for security through the Sheriff's Office and Sheriff Murdie asked me if I was interested in that position. Q. What did you do in the interim between '87 and '89? A. I worked part-time for the Gunnison Police Department. Q. I see. So after you came back and worked airport security, how long did you do that for? A. It seemed like it was only a few months. Q. And did your role change after that? A. Yes. Q. What did you become? A. I transitioned into patrol. Q. What time did you do that? What year? A. As near as I can tell, probably 1990, is what I'm thinking. Q. Okay. And since 1990, have you remained consistently employed by the Sheriff's Office? A. That's correct. Q. What was your rank in 1990? A. Patrolman. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 5 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 6 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 7 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 8 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 9 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 10 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 11 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 12 of 51 56 coffees; is that right? A. I would have to review. Without reviewing decades worth of material, nothing comes to mind. Q. Prior to 2014, did you ever consider terminating Scott Jackson? A. No. MR. SAGAL: Do you want to take a break? MR. ZIPORIN: Sure. MR. SAGAL: Okay. (SHORT BREAK TAKEN.) BY MR. SAGAL: Q. I did want to ask you a couple of questions about particular comments in the evaluation. (DOCUMENT ENTERED AS Exhibit 73.) BY MR. SAGAL: Q. Have you finished reading it? A. One more minute, please. Okay. Q. I want to direct your attention to the third page, it would be Bates number 164, the last paragraph, and there's an asterisk in front of where you state: Although Sergeant Jackson is eager to cooperate with his superiors, he has established mutual respect, and by such, speaks his mind in disagreements; he will challenge a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 13 of 51 64 permits to sheriff's sales to yearly reporting requirements. Things of that nature. Q. Once you learned that he was going to run for sheriff did you speak with him about it? A. I did not. Q. Okay. A. When I first learned? No, I did not. Q. Did you speak with him about it at some subsequent point? A. Upon his invitation, yes. Scott Jackson's invitation. Q. He invited you to speak about the issue with him? A. In his office, uh-huh. Q. Okay. And tell me about that conversation. A. It was -- it was February 19, 2014, when he indicated that he wanted to talk with me, and that's when he told me he was running for sheriff. Q. Was there any other conversation other than him telling you he was going to run? A. He suggested the conduct in which he was hoping both of us would embrace during the election process. Q. What type of conduct did you understand him to be suggesting? A. Repeat that, please. Q. What did you understand him to be saying to you in terms of how you were going to conduct -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 14 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 15 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 16 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 17 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 18 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 19 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 20 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 21 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 22 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 23 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 24 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 25 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 26 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 27 of 51 83 Q. Okay. You had a social media platform for your campaign; is that right? A. Yes. Q. Okay. Facebook? A. We started on Facebook, lost interest in it. I didn't know how -- I didn't know the concept. Still don't know the concept. Q. Uh-huh. What kind of social media platforms did you have? A. Okay, we had produced a couple of videos. We had a website. Q. Anything else? A. Nothing comes to mind. Q. We talked about social media and we talked about going door to door. A. (Nods head up and down.) Q. Were there other campaign activities that you were engaged in? A. Yeah, forums, interviews by the newspaper. Q. Anything else? A. Radio exposures, ads -- Q. How much money did you spend on your campaign? A. I don't recall that. Q. I cut you off. Forums, interviews, radio exposures, ads. Anything else you can think of that would encompass your 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 28 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 29 of 51 85 reassured of its stability. You say that? A. Yeah. I was anticipating we would be able to accomplish that. Q. Okay. But you actually say you had almost daily communication with Jackson, don't you? A. Yes, I do. This is April 3rd, 2014. Early on. Q. Uh-huh. And you say: It's not for show's sake; you know that Scott's sincere and I'm sincere. That's what you're saying, essentially, to the public? A. Say that again. I'm not following. Q. You're quoted as saying: It's not for show's sake; I know that Scott's sincere and I'm sincere. A. Yeah. Q. Okay. A. Yes. Q. Those are public statements that you made about essentially your relationship with Scott Jackson while the campaign was happening? A. Yes. MR. ZIPORIN: Object to form. Go ahead. THE WITNESS: Am I too fast? MR. ZIPORIN: That's all right. Sometimes I'm too slow. BY MR. SAGAL: Q. And you mentioned that you had -- well, we just talked about an interview. You did you comment during the course of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 30 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 31 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 32 of 51 92 by their previous affiliation, was my experience, or my perspective. Q. This may be a dumb question, but did you personally feel affiliated with the Republican party? A. Yes. Q. And did you have views about the local Democratic party? A. As a party as a whole, not absolutely firm. I mean there were at one point a lot of staunch Democrats that went out of their way to state that they were going to unofficially endorse me, they were going to support me, and as things continued, that eagerness didn't seem to be there any longer. Q. Did you view the local Democratic party in a negative light? A. As a whole, no. Q. Did you view the people affiliated with Jackson and his campaign in a negative light? MR. ZIPORIN: Object to form. BY THE WITNESS: A. Yes. BY MR. SAGAL: Q. How come? A. Because of the contentious nature of the campaign. Q. Okay. And things said during the campaign? A. Yes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 33 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 34 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 35 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 36 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 37 of 51 129 timeline of anticipation, the possibility that Scott Jackson would be terminated? A. Yes. Q. And when you're taking notes of the November 10, 2014 visit with Scott Jackson, you say: I was hoping for space to work with and he yielded no willingness to plead for his job. Do you see that? A. I do. Q. If he had pled for his job would he have stayed? A. We would have had something to work with, yes. Q. If he pled for his job? A. We would have had something to work with, yes. Q. What does that mean, you would have something to work with? A. I feel that's self-explanatory. I think that if you have the right frame of mind and display a willingness to work with me, that opens it up. I can consider that. Q. Actually, he expressly stated that he was willing to work with you in your first meeting with him in the office, but he didn't plead for his job; is that correct? A. That is correct. Q. Okay. A. Do you want me to respond to that? MR. ZIPORIN: If you feel that your answer was responsive, then please do so. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 38 of 51 130 BY THE WITNESS: A. No, that's correct. I'll go with that. BY MR. SAGAL: Q. And you say you would not have respected him to grovel. Did you mean expected? Or do you mean you wouldn't have respected him if he did grovel? A. I would not have respected him if he groveled, yes. Q. So you were anticipating somewhere in between pleading for his job and groveling? A. As it's written, yes. Q. You met with both county attorneys on November 17; is that right? A. Yes, as indicated, yes. Q. Okay. Okay. And that was, I believe, the same day that you had your next meeting with Scott. Is that consistent with your recollection? A. I don't recall that. Q. Who's Kathryn Schroeder? A. She's an attorney out of Denver. Q. There's a notation here that you contacted her? A. That is correct. Q. Why did you contact her? A. She specializes in employment law and issues. Q. Did you speak with her about your situation with Scott? A. I did. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 39 of 51 142 conversations you had with an attorney? A. Yes. Q. Okay. Do you understand this language to mean that you don't have to tell someone who's being revoked the reasons why? A. Yes. Q. Would you take a look at Exhibit 24. A. Perhaps. Q. There you go. And if you would, turn to page -- A. I don't see. There it is. Q. It's actually the policy. They seem to be out of -- This is upside down. That's the confusion. Turn to Bates number 397 -- A. I'm with you. Q. -- the bottom right. I want to direct you to the specific language, but this is the policy with respect to discipline that was in effect that was written prior to the November 24 policy. A. Okay. Q. Right? A. Yes. Q. And there's a section E: Imposition of negative discipline. Do you see that? A. I do. Q. And subsection -- does negative discipline under this policy include termination? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 40 of 51 143 A. It does. Q. And under subsection two it states: An employee should be clearly advised for the reason for negative discipline and the exact infraction of work procedure violation of Gunnison County or -- Let me say that again. An employee should be clearly advised of the reason for the negative discipline and the exact infraction of work procedure violation or Gunnison County Sheriff's Office temporary directives and/or written policies that the discipline is being imposed for. Do you see that? A. I do. Q. So whereas prior to November 24, 2014, the policy said that someone who's being terminated was entitled to know the exact infraction of work procedure, but after the adoption of this policy in November 2014, the policy states essentially the opposite, that you do not have to say or tell the employee any reasons for termination. Do you agree with that? MR. ZIPORIN: Object to the form of the question. BY THE WITNESS: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 41 of 51 144 A. Do I agree with what? That there's differences? BY MR. SAGAL: Q. Yes. A. I do. Q. Okay. And the policy that was adopted with specific reference to Scott Jackson is the policy that says you don't have to tell somebody why you're terminating them; correct? A. That's correct, yes. Q. Okay. Exhibit 19. Let me help you reorganize Number 24. A. Nineteen? Q. Yes. Have you reviewed Exhibit 19 before? A. I have. Q. This is the at-will statute; right? A. That is correct. Q. Okay. And is there any language in this statute that says that someone being terminated is not entitled to due process? A. That's correct. Q. There's nothing in the statute that says that a deputy is not entitled to due process? A. No. I misunderstood your question. Let me read it again -- Q. Okay. A. -- please. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 42 of 51 150 A. No. Q. Is there anything in this document that refers to Paula Martinez and the shots fired call? A. No, sir. Q. Is there anything in this document that refers to Randy Laudick? A. No. Q. Is there anything in this document that refers to Warren Taylor? A. No. Q. Is there anything in this document that refers to paperwork and Scott's alleged timeliness with respect to paperwork? A. No. (DOCUMENT ENTERED AS Exhibit 87.) BY MR. SAGAL: Q. What is Exhibit 87? A. It's titled as: The List. I'm sure that I wrote this document. I'm not sure, other than keeping the -- perhaps the dates and some things in line in my mind, why I wrote it. Q. You don't know why you wrote this document? A. I do not. Q. Okay. It refers to a December 30, 2014, offer to Scott Jackson for the opportunity to resign and notes a severance package of two months, 35 thousand, should have been 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 43 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 44 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 45 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 46 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 47 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 48 of 51 165 Q. Did he refuse? A. No. He did not. Q. How did Jackson impede the efficient performance of the office's obligations? A. I believe through the normal experience that everyone had, each individual of the Sheriff's Office had in relationship to the campaign and the election took its toll and -- Q. Sounds like what you're saying is -- I'm sorry, go ahead. A. And through -- and officers, some officers were asking if there was such a difference, again, whether it be in style or approach to law enforcement, to leadership, and he obviously didn't trust my judgment on several issues, they were curious on why he would want to stay and work for me. Q. Because he works there. Isn't that the answer? MR. ZIPORIN: Object to form. Go ahead. BY THE WITNESS: A. Not necessarily. BY MR. SAGAL: Q. You expected him -- going back to the combat, mortal combat for careers, you expected him after the campaign, after he lost, to simply walk away? Is that what you expected? A. Not necessarily. Q. Okay. A. I think that the presumptuousness of him automatically 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 49 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 50 of 51 Case 1:15-cv-01182-JLK Document 42-2 Filed 07/20/16 USDC Colorado Page 51 of 51 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 15-cv-01182-JLK RICHARD SCOTT JACKSON, Plaintiff, v. RICHARD BESECKER, individually and in his official capacity as Sheriff of Gunnison, County, Colorado, Defendants. DEFENDANT RICHARD BESECKER’S ANSWERS AND RESPONSES TO PLAINTIFF’S FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS Defendant, RICHARD BESECKER, by and through his counsel, ERIC M. ZIPORIN and JENNIFER F. KEMP of the law firm SENTER GOLDFARB & RICE, L.L.C., and pursuant to F.R.C.P. 33 and 34, hereby answers and responds to Plaintiff’s First Set of Interrogatories and Requests for Production of Documents as follows: GENERAL OBJECTION Defendants object to Plaintiff’s Requests for Production of Documents and “DEFINITIONS AND INSTRUCTIONS” contained therein to the extent that the requests for production of documents and “definitions and instructions” place additional requirements and burdens upon Defendants which are not contemplated by the Federal Rules of Civil Procedure. Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 1 of 21 2 ANSWERS TO INTERROGATORIES 1. Identify all of Mr. Jackson’s alleged performance issues occurring prior to his election run for Gunnison Sheriff (See proposed Scheduling Order dated October 1, 2015, p. 6). In your answer, include: a. A complete description of each of the “performance issues” including all pertinent dates; b. Identify all documents and communications relating to the performance issues and any responsive action taken by you or someone acting on your behalf; c. The identity of all individuals with knowledge of the “performance issues” and the actions taken to address the “performance issues”. ANSWER: Sheriff Besecker documented several unacceptable incidents involving Jackson’s performance, both before and after Jackson ran for Sheriff, which contributed to his decision to revoke his appointment as a Sheriff’s Deputy.  March 14, 2014: Jackson was advised to monitor and regulate overtime and compensatory time build up within the patrol unit. Jackson failed to enforce such a basic oversight and Undersheriff Barnes took over the mission. Both the Sheriff and the Undersheriff have knowledge of this performance issue.  March of 2014: the Sheriff received several complaints from other agencies reporting that Jackson exhibited resentment and contempt toward them on a regular basis. These complaints generally came from the Gunnison Police Department and Gunnison Regional Communication Center. Persons having knowledge of these complaints include the Sheriff, Undersheriff, Laurie Sherman, Bob Summer, Jodie Chin and members of the Gunnison Police Department.  April 22, 2014: Jackson was progressively tasked with reviewing and monitoring the report assignments. However, he ignored this responsibility and Sheriff Besecker was required to continue to review reports, assign them, and handle press releases. The Sheriff and Undersheriff have knowledge of this issue. Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 2 of 21 3  April 30, 2014: Jackson was asked to review to a “shots fired” call and conduct an investigation of a possible policy violation. He not only ignored the order, but verbalized his discontentment of the final disposition to the officer involved. The Sheriff, the Undersheriff and Deputy Paula Martinez have knowledge of this issue.  September of 2014: the Sheriff directed Jackson to investigate a possible and very serious problem with a subordinate deputy who was possibly suffering from dyslexia. Jackson failed to follow instruction and the Sheriff took over the task. Sheriff Besecker discovered that the officer suffered from dysgraphia, which greatly impacted the officer’s performance. The Sheriff, the Undersheriff, former deputy Warren Taylor, and Sgt. Travis Dooley have knowledge of this issue.  Jackson regularly failed to vigilantly require officers to complete daily reports, supplements, and other required tasks. He has not followed recommendations and outright orders that he monitor officer’s mistakes and oversights on “dailies”. The Sheriff and Undersheriff have knowledge of this issue.  Jackson refused to commit to the release of a candidate in training because he did not personally observe what the field-training officer observed. This resulted in a feeling of undermining training officers and second guessing their decisions. The Sheriff and the Undersheriff have knowledge of this issue.  Although Jackson had previously been in charge of the scheduling for the Sheriff’s office for the last 15 years, in the recent past he failed to maintain the schedule and the task had to be delegated to Undersheriff Barnes. The Sheriff and Undersheriff have knowledge of this issue. Notes from Undersheriff Randy Barnes and Sheriff Besecker outlining all of these ongoing performance issues were disclosed as JACKSON.BESECKER.00003-00007.  In January of 2015, some discrepancies related to the Patrol Unit’s time cards came to the attention of Undersheriff Barnes. He was told by an employee in the County Finance Department that several officers carry over from the previous month was different than what was showing on the current month. The Undersheriff met with personnel in the finance department and reviewed the Patrol Unit’s timesheets for the year 2014 and they identified seven timesheets that showed differences between the timesheet officers signed and the timesheet in the computer system. The Undersheriff prepared a memorandum to the Sheriff outlining these discrepancies and questions he had for Jackson, who was the Lieutenant in charge of reviewing timesheets and ensuring their accuracy. This incident implicated sections of the disciplinary code including neglect of duties, interference with Sheriff’s operations, inability to perform assigned duties in an efficient manner, insubordination, dishonesty, behavior inappropriate to one’s position, acts that are intent to undermine supervisory integrity, and failure to adequately supervise subordinate Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 3 of 21 4 members. The Undersheriff’s memorandum to the Sheriff on this issue was disclosed as JACKSON.BESECKER.00008-00009. An additional document related to this issue is disclosed herewith as JACKSON.BESECKER000545. 2. Identify all of Mr. Jackson’s alleged “performance issues and concerns” occurring after the election for Gunnison County Sheriff (See proposed Scheduling Order dated October 1, 2015, p. 7). In your answer include: a. A complete description of each of the “performance issues and concerns” including all pertinent dates; b. Identify all documents and communications relating to the performance issues and any responsive action taken by you or someone acting on your behalf; c. The identity of all individuals with knowledge of the “performance issues” and the actions taken to address the “performance issues”. ANSWER: See Answer to Interrogatory No. 1. 3. Identify all statements made by Mr. Jackson during the election that you contend were factually inaccurate (See proposed Scheduling Order dated October 1, 2015). In your answer, include: a. The date the statement was made; b. The content of the statement; c. Why you believe the statement is factually inaccurate; d. All documents and communications relevant to the statement and your contention that the statement was factually inaccurate. ANSWER: Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 4 of 21 5  Jackson placed an ad in the local Shopper on October 29, 2014 stating: “My job is to enforce the law, not create law.” This presented the perception that Sheriff Besecker creates laws, or at least tries do, which is inaccurate.  During the Crested Butte debate a question was posed (scripted by a stacked audience) that Sheriff Besecker handed a suicide case off to the Police Department. In actuality, Sheriff Besecker’s investigator handed the investigation off without his knowledge or consent. Jackson stated that he would have responded to the scene. Sheriff Besecker would also have responded had he known about the incident.  Sheriff Besecker understands that most of the items appearing in the local newspapers and Jackson’s responses are opinion. However, former Sheriff Rick Murdie went to great lengths in the newspapers to project opinion as fact and Jackson was able to effectively spring board his campaign from unsubstantiated material and made no effort to correct or clarify these inaccurate statements. 4. Identify and describe any and all claims of wrongful termination, discipline, or reprimand made by any employee, former employee, independent contractor or any other worker against Defendant and/or the Gunnison Sheriff’s Office from 2010 to the present. For purposes of this interrogatory, a “claim” includes formal complaints of the nature specified, as well as the filing of a formal charge, any written or oral complaint, and/or the filing of a lawsuit. For each such claim, please specify the name, address and telephone number of the complainant; the title and claim/case number (if any); the nature of the claim/case; and the disposition of the claim/case (including whether pending or concluded). Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 5 of 21 6 OBJECTION: Defendant objects to this interrogatory as overbroad and not reasonably calculated to lead to the discovery of admissible evidence. Even if Plaintiff’s request is calculated to lead to the discovery of evidence of disparate treatment, the requests must be limited to those employees who dealt with the same supervisor and are subject to the same standards governing performance and discipline. McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006). The discovery must also be limited to those who have been disciplined for conduct of comparable seriousness—i.e., the same types of offenses. Id. Moreover, evidence of events occurring after Plaintiff’s termination are wholly irrelevant and not admissible to establish that Defendant retaliated against the Plaintiff. Without waiving said objections, Defendant provides the following answer. ANSWER: Documents related to employees who have been disciplined for “insubordination,” “performance issues,” or “failure to supervise” from the time the Sheriff was sworn in in January of 2011 to the date of Plaintiff’s termination in March of 2015 are produced herewith. See Fed.R.Civ.P. 33(d). JACKSON.BESECKER 000546-000648.1 5. Identify and describe any and all disciplinary action, whether formal or informal, and whether or not resulting in a letter of reprimand or termination taken by you or any other employee or representative of the Gunnison Sheriff’s Department against any employee, former employee, independent contractor or any other worker from 2010 to the present. For each such action, please specify the name, address and telephone number of the employee, the nature of the disciplinary action taken, and the disposition of the action (including whether pending or concluded). 1 CONFIDENTIAL – subject to protective order. Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 6 of 21 7 OBJECTION AND ANSWER: See Objection and Answer to Interrogatory No. 4. 6. Identify the individual or individuals who have assumed Plaintiff’s duties in the Sheriff’s Office since his termination, including a. The identity of the individual(s); b. The age of the individual(s); c. The specific duties assumed by each individual(s); d. The qualification and experience of each individual respecting the particular duties assumed. ANSWER: Instead of hiring or promoting an individual to fill Jackson’s vacant position, the Sheriff’s Office eliminated the position of Patrol Lieutenant. It delegated the tasks of the Patrol Lieutenant to one existing Patrol Sergeant and hired another Patrol Sergeant. These individuals are Mark Mykol and Travis Dooley who are 57 and 39 respectively. Sergeant Dooley now handles the schedule; Sergeant Mykol handles timesheets; Sergeants Dooley and Mykol as well as Undersheriff Barnes are now firearms instructors; Sergeants Dooley and Mykol, Undersheriff Barnes, and Sheriff Besecker are responsible for reviewing reports, determining training and crafting training schedules. 7. Identify all individuals involved in Plaintiff’s recruitment, hiring, employment, promotion, performance, discipline and termination. OBJECTION: Defendant objects to this interrogatory on the grounds that it is vague and overbroad. Defendant could essentially list every person who has ever been employed by the Gunnison County Sheriff’s Office since Mr. Jackson started his employment in answer to this interrogatory. Without waiving this objection, the Defendant provides the following response. Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 7 of 21 8 ANSWER: Sheriff Besecker believes that Plaintiff was hired by former Sheriff Claud Porterfield. Plaintiff was appointed Sergeant by former Sheriff Richard Murdie and was appointed Lieutenant by former sheriff Rick Murdie. Since the Defendant’s election as the Sheriff he and Undersheriff Banes have been involved with Plaintiff’s performance and discipline. Sheriff Besecker alone made the decision to terminate Plaintiff. 8. Describe in detail all compensation provided by the Gunnison Sheriff’s Office to Plaintiff to date. Your description should include, but not be limited to, compensation components such as salary, benefits and/or benefit programs (including the economic or financial value to Plaintiff of all benefits provided to Plaintiff by Defendant), award opportunities, bonuses and/or bonus programs, and retirement plans/programs. ANSWER: Documents responsive to this request have been produced in Plaintiff’s personnel file. JACKSON.BESECKER 00020-00227. Additional documents related to the Gunnison County Benefits Plan are disclosed herewith at JACKSON.BESECKER 000649- 000670. See Fed.R.Civ.P. 33(d) 9. Identify each expert and non-expert witness you intend to call to testify and/or persons with knowledge or discoverable matter. With respect to each such person, state the following information; the subject matter(s) upon which each person is expected to testify; the substance of the facts and/or opinions as to which each person is expected to testify; a summary of grounds for each such opinion; and the address and telephone information number of each such witness. ANSWER: Defendant has not yet identified those individuals whom he plans to endorse as experts for trial or non-expert witnesses he intends to call to testify. Defendant’s experts, expert Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 8 of 21 9 materials, and non-expert witnesses will be disclosed as required by the Federal Rules of Civil Procedure. 10. Identify any individual who has been interviewed, whether recorded or otherwise, related to Plaintiff’s employment with the Gunnison Sheriff’s Office and/or Plaintiff’s claims made in this case. For each individual, please identify the date of the interview, the name of the interviewer, all people present during the interview, and the home address and telephone number of both the interviewer and the interviewee. OBJECTION: Defendant objects to this interrogatory to the extent that it requests information which is subject to the attorney client and/or work product privileges. Without waiving this objection, Defendant answers as follows. ANSWER: Defendant’s attorneys have interviewed the following individuals regarding their knowledge of the allegations made in Plaintiff’s complaint: (1) Sheriff Rick Besecker; (2) Undersheriff Randy Barnes; (3) Sergeant Travis Dooley; (4) Deputy Kelley Medina; (5) Sergeant Mike Mykol; (6) Deputy Paula Martinez; (7) Deputy Ian Clark; (8) Investigator Bob Summer; (9) Sergeant Jim Powers (Gunnison Police Department); (10) Captain Chris Wilson (Gunnison Police Department). Gunnison County Sheriff’s Office employees can be contacted through Senter Goldfarb & Rice, LLC. Individuals employed by other agencies can be contacted at their respective places of business. 11. Identify all persons with knowledge of the following, describing what the knowledge and/or information is for each person: Plaintiff’s job performance and ability to perform his job responsibilities, any alleged performance deficiencies of Plaintiff during his Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 9 of 21 10 employment with Defendant (and/or any related entity), all attempts to notify Plaintiff of any deficiencies in his performance, any disciplinary actions imposed against Plaintiff, including but not limited to verbal and/or written warnings, any attempts to notify Plaintiff that he was at risk of termination, the date discussions first began regarding the termination decision and each and every person involved in those discussions, the information relied upon in making the decision, when the decision was ultimately made, why, and by whom. OBJECTION: Defendant objects to this interrogatory in that it includes at least seven separate and discrete inquiries. Defendant also objects to this interrogatory on the grounds that it is overly broad. As written every person involved in law enforcement in the Gunnison area for the last 30+ years could be identified. Lastly, Defendant objects to this interrogatory to the extent that it requests information that is subject to the attorney client privilege. Without waiving these objections, Defendant provides the following response: ANSWER: Plaintiff’s job performance and ability to perform his job responsibilities: employees of the Gunnison County Sheriff’s Department including Sergeant Travis Dooley, Deputy Kelley Medina, Sergeant Mark Mykol, Deputy Paula Martinez, Undersheriff Randy Barnes, and Sheriff Richard Besecker and surrounding law enforcement agencies including the Gunnison Police Department, including Sergeant Jim Powers and Captain Chris Wilson, Mt. Crested Butte Police Department including Chief Nate Stepanek and Sergeant Brad Phelps, Crested Butte Marshals Office including Chief Marshal Tom Martin, and Gunnison County Communications Center, including Jodie Chinn and Laura Sherman. Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 10 of 21 11 Any alleged performance deficiencies of Plaintiff during his employment with Defendant (and/or any related entity): See Answer to Interrogatory No. 1. All attempts to notify Plaintiff of any deficiencies in his performance: Undersheriff Barnes and Sheriff Besecker. Any disciplinary actions imposed against Plaintiff, including but not limited to verbal and/or written warnings: in early 2011 Sheriff Besecker gave a directive that officers were not to take extended group coffee breaks at local businesses. Lieutenant Jackson violated the order. Sheriff Besecker reminded him of the order and Lieutenant Jackson apologized. Any attempts to notify Plaintiff that he was at risk of termination: Sheriff Besecker had two or three face to face conversations with Plaintiff regarding his continued employment at the Sheriff’s Office following the election. The date discussions first began regarding the termination decision: the Sheriff first began contemplating whether he should terminate Plaintiff following the meeting in his office when Plaintiff told him he (Jackson) would have been a better Sheriff. Each and every person involved in those discussions, the information relied upon in making the decision, when the decision was ultimately made, why, and by whom: the Sheriff consulted with his attorneys and Undersheriff Barnes regarding termination and he consulted with several attorneys and with Sheriffs Darr, Bruce, Miner, and Heap regarding his statutory authority to terminate any deputy under his charge. The Sheriff relied upon legal advice from his attorneys, the language of C.R.S. § 30-10-506, his knowledge of Plaintiff’s performance, his knowledge and experience of Plaintiff’s acts and statements during the campaign and election of 2014, and his knowledge and experience of the atmosphere and functionality of the Sheriff’s Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 11 of 21 12 Office following the election while Jackson continued to be employed. The Sheriff alone made the decision to terminate for the reasons stated in Jackson’s termination letter: That Jackson’s continued employment undermined the effective discharge of the Sheriff’s duties, Jackson’s negative impact on the morale of the Sheriff’s Office, and that Jackson’s continued employment impeded the Sheriff’s ability to efficiently perform the obligations of the Sheriff’s office. 12. Identify and describe all attempts made by Defendants to consult with, advise or otherwise notify Plaintiff regarding any risk for termination and/or any performance deficiencies, including but not limited to documented discussions between Plaintiff and his supervisors, and any other forms of feedback provided to Plaintiff regarding his performance and/or risk for termination. For each attempt, please specify: a. The date of such notice; b. The names and current addresses of the person(s) involved; c. The specific issues and circumstances addressed with Plaintiff; and d. The outcome and/or follow up regarding any such discussions. ANSWER: The Sheriff notified Jackson of his risk of termination during a meeting when he gave Jackson the opportunity to resign and in the letter of March 11, 2015 which notified Jackson of the termination and gave him the opportunity to be heard. RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1. All documents relied upon or referenced to response to the Interrogatories, above. RESPONSE: All documents responsive to this request are produced herewith. 2. All documents Defendant intends or believes it may introduce, use as exhibits, and/or use for impeachment or rebuttal purposes during depositions or trial proceedings. Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 12 of 21 13 RESPONSE: Documents responsive to this request have been and will continue to be disclosed as required by the Federal Rules of Civil Procedure. 3. All documents identified in your disclosures and any supplemental and/or expert disclosures pursuant to Fed.R.Civ.P. 26. RESPONSE: Documents responsive to this request have been and will continue to be disclosed as required by the Federal Rules of Civil Procedure. 4. All of Plaintiff’s employment files, management files, and/or Human Resources files, including but not limited to, contracts, compensation, offer letters, performance, performance improvement plan(s), accolades or commendations, performance evaluations, benefit plans, and retirement plans. RESPONSE: Plaintiff’s personnel file has been produced at JACKSON.BESECKER 00020-00277. Additional personnel documents are produced at JACKSON.BESECKER 000671- 000722. Due to the voluminous nature of the documents, Plaintiff’s daily activity logs for the past several years are not produced, but can be inspected at the offices of Senter Goldfarb & Rice, LLC. See Fed.R.Civ.P. 34(a)(1)(A). 5. All documents relating to Defendant’s employment policies and procedures for employees or ex-employees, formal or informal. RESPONSE: Documents responsive to this request have been produced at JACKSON.BESECKER 00278-00340 and 00341-00544. 6. All documents relating to Plaintiff’s performance, both positive and negative, as an employee of the Gunnison County Sheriff’s Office, including but not limited to improvement Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 13 of 21 14 plan(s), and formal or informal counseling and discipline, whether verbal or in writing, any and all accolades and commendations, and all communication regarding Plaintiff’s performance. RESPONSE: See Response to RFP No. 4. 7. All documents, including without limitation all emails found on Defendant’s servers (and on the servers of the Gunnison Sheriff’s Office and Gunnison County), desktop computers, laptop computers, notebook computers, personal digital assistants, and any other electronic media storage device, including but not limited to emails which are current, deleted, backed-up and archived, which in any way discuss or touch upon the issues of Plaintiff’s performance and/or Plaintiff’s termination. This request is not limited to out of print emails. This request seeks production of metadata (information available related to emails, such as date sent, date received, subject and other electronic files such as file name, file type, date last modified), and therefore we request an exact electronic data copy (i.e. bit-by-bit mirror image copy) of all emails produced. OBJECTION: Defendant objects to this Request for Production to the extent that it is overly broad and not limited in time. Defendant further objects to the extent that this Request for Production requests documents which are subject to the attorney client privilege. A privilege log is attached. RESPONSE: See Response to RFP No. 4. Additional documents related to Plaintiff’s performance and/or termination are disclosed herewith as JACKSON.BESECKER 000723- 000751. An exact electronic data copy of the documents and e-mails is available for inspection at the offices of Senter Goldfarb & Rice, LLC, upon reasonable notice. See Fed.R.Civ.P. 34(a)(1)(A). Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 14 of 21 15 8. All documents, including without limitation all emails found on Defendant’s servers (and on the servers of the Gunnison Sheriff’s Office and Gunnison County), desktop computers, laptop computers, notebook computers, personal digital assistants, and any other electronic media storage device, including but not limited to emails which are current, deleted, backed-up and archived, which in any way discuss or touch upon the issues of the 2014 election for Gunnison County Sheriff and/or Plaintiff’s participation in the election. This request is not limited to out of print emails. This request seeks production of metadata (information available related to emails, such as date sent, date received, subject, and other electronic files such as file name file type, date last modified), and therefore we request an exact electronic data copy (i.e. bit- by-bit mirror image copy) of all emails produced. OBJECTION: Defendant objects to this request for production on the grounds that it is vague and unduly burdensome. The request for production is vague in that the word “issues” is not defined and, therefore could encompass any document generated by the Sheriff during the campaign. Without waving these objections the Sheriff provides the following response: RESPONSE: No such documents exist on the servers of Gunnison County or of the Sheriff’s Office. Documents found on the Sheriff’s personal computer which relate to the specific election issues including the discontinuation of the victim’s advocate program, closing of the South Crested Butte station, and legalized marijuana as well as all documents referencing Plaintiff as the Sheriff’s opponent in the 2014 election are produced herewith: JACKSON.BESECKER 000792- 000847. 9. All documents related in any way to Defendant’s discipline and/or termination of any employee of the Gunnison Sheriff’s Office from 2010 to the present. Responsive documents Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 15 of 21 16 should include, but not be limited to, any performance improvement plans issued by Defendant to any such employee, any formal write-up, corrective action, and/or reprimand issued to any such employee, any reassignment pertaining to any such employee, and the stated reason for termination. Plaintiff is willing to stipulate that responsive documents will be subject to any such Protective Order that may be entered by the Court in this action. OBJECTION AND RESPONSE: See Objection and Answer to Interrogatory No. 4. 10. All documents and communications, whether by email, instant message or other written correspondence, between Defendant and any of Defendant’s agents, representatives, and employees and/or among any of Defendant’s agents, representatives, and employees regarding Plaintiff’s performance, the 2014 election for Gunnison County Sheriff, and Plaintiff’s termination. OBJECTION: Defendants object to this request as it is overbroad and unduly burdensome in that it requests all communications that could exist between an unlimited number of people within an unspecified time frame. Defendant further object as this request seeks documents which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to this request for production to the extent that it requests documents which are subject to the attorney client privilege. See Privilege Log attached herewith. Without waving these objections, Defendant provides the following response: RESPONSE: All documents related to Plaintiff’s performance and termination have been disclosed in Plaintiff’s personnel file (JACKSON.BESECKER 00020-00277) and in response to Interrogatory No. 1, Request for Production No. 4, and Requests for Production No. 7 Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 16 of 21 17 (JACKSON.BESECKER 000454; JACKSON.BESECKER 000671-000722; JACKSON.BESECKER 000723-000751). Documents related to the 2014 election were produced in response to Request for Production No. 8 (JACKSON.BESECKER 000792-000847). 11. All documents and communications relating to the adoption of the “Policy Regarding Revocation of Appointment of a Deputy Sheriff” on or about November of 2014. OBJECTION: Defendant objects to this request as it seeks documents which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to this request for production to the extent that it requests documents which are subject to the attorney client privilege. See Privilege Log attached herewith. Without waving these objections, Defendant provides the following response: RESPONSE: Documents responsive to this request have been produced at JACKSON.BESECKER 00010-00011. 12. All documents and communications relating to the statement contained in Defendant’s counsel’s July 22, 2015 “Position Statement” to the EEOC that “Sheriff Besecker documented several unacceptable incidents involving Jackson’s performance, both before and after Jackson ran for Sheriff, which finally led to the decision to revoke his appointment as a Sheriff’s Deputy”, including without limitation all documents and communications regarding the specific matters set out in the “bullet points” following that statement. OBJECTION: Defendant objects to this request because it requests documents subject to the work product privilege and attorney client privilege. See attached Privilege Log. Without waving this objection, Defendant provides the following response: Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 17 of 21 18 RESPONSE: Documents responsive to this request have been disclosed at JACKSON.BESECKER 00001-00019 and in response to Interrogatory No. 1 at JACKSON.BESECKER 000545. 13. All documents relating to all of your affirmative defenses. RESPONSE: Documents responsive to this request have been and will continue to be disclosed pursuant to Fed.R.Civ.P. 26(a). 14. Copies of any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in this action or to indemnify or reimburse for payments made to satisfy the judgment. RESPONSE: Documents responsive to this request are produced herewith. JACKSON.BESECKER 000752-000791. Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 18 of 21 19 AS TO OBJECTIONS: s/ Eric M. Ziporin Eric M. Ziporin Senter Goldfarb & Rice, L.L.C. 3900 E. Mexico Ave., Suite 700 Denver, CO 80210 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mail: eziporin@sgrllc.com s/ Jennifer F. Kemp Jennifer F. Kemp Senter Goldfarb & Rice, L.L.C. 3900 E. Mexico Ave., Suite 700 Denver, CO 80210 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mail: jkemp@sgrllc.com Counsel for Defendant Richard Besecker Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 19 of 21 20 RICHARD BESECKER By: ________________________________ Sheriff Richard Besecker STATE OF COLORADO ) ) ss. COUNTY OF __________________ ) SUBSCRIBED AND SWORN to before me this ____ day of _________________, 2015, by Richard Besecker. ____________________________________ Notary Public My commission expires: __________________ Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 20 of 21 21 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 1st day of December, 2015, a true and correct copy of the above and foregoing DEFENDANT RICHARD BESECKER’S ANSWERS AND RESPONSES TO PLAINTIFF’S FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS was electronically served on the following: Roger F. Sagal Sagal Law Group, LLC roger@sagalgroup.com Counsel for Plaintiff s/ Wendy McCann Wendy McCann, Legal Secretary 01063070.DOCX Case 1:15-cv-01182-JLK Document 42-3 Filed 07/20/16 USDC Colorado Page 21 of 21 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. 15-cv-01182-JLK RICHARD SCOTT JACKSON PLAINTIFF Versus RICHARD BESECKER, Individually, DEFENDANT and in his official capacity as Sheriff of Gunnison County, CO --------------------------------------------------------------- DEPOSITION OF RANDY BARNES --------------------------------------------------------------- Taken on Tuesday, March 9, 2016, in the County Court Jury Room in the Gunnison Combined Courts Courthouse, Gunnison Colorado A-P-P-E-A-R-A-N-C-E-S ROGER F. SAGAL, Attorney at Law Sagal Law Group, LLC Ridgway, CO REPRESENTING SCOTT JACKSON, Plaintiff BRIAN ZIPORIN, Attorney at Law Senter, Goldfarb & Rice Denver, CO REPRESENTING RICHARD BESECKER, Defendant ALSO PRESENT: Scott Jackson, Plaintiff Richard Besecker, Defendant REPORTED BY: DEBORAH A. HARRIS, RMR, CRR, CSR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 1 of 42 15 A. Yes, sir. Q. So at the time you were promoted in 2005, were you, Mr. Folowell, and Scott Jackson of equal rank? A. Yes, sir. Q. Okay. And then in 2005 who would have been the person above the sergeant level? A. It would be the undersheriff. Q. Okay. And who was the undersheriff at the time? A. Sheriff Besecker. Q. Sheriff Besecker. Sheriff Murdie was sheriff? A. Yes, sir. Q. Okay. Since we're on the topic of kind of the administrative structure, I understand the way that the Sheriff's Office is administered, there's a Sheriff's Office? A. (Nods head up and down.) Q. And then within the Sheriff's Office there's a patrol division and a jail division? A. Uh-huh. Q. Is that correct? A. Yes, sir. Q. Is there any other divisions within the office? A. Currently, we have the Alternative Services Program as well. And so we have three basically different units: One is patrol, one is jail, and then the offshoot of the Alternative Services person. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 2 of 42 16 Q. And what does Alternative Services do? A. It works with the courts and assigns people community service through court sentences. Q. Who is in charge of the alternative services division in the Sheriff's Office now? A. That would be me. Q. That would be you? A. Yes, sir. Q. Is that a separate title or is that within your role as undersheriff? A. That's within my role as undersheriff. Q. Okay. When we talk about divisions, the patrol division and the -- is it the jail division? Am I using the right terminology? A. We use them as units, not divisions. Q. Okay. A. And so, yes, sir, we have -- we have two different units, if you will, the jail and the patrol, yes, sir. Q. Okay. Why is the office divided up that way? A. Different responsibilities, different certification levels, and just different roles within the office. Q. Okay. Amongst the employees that serve both the patrol unit and the jail unit, are they officed in the same operation? A. Yes, sir. Q. They are all in one building? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 3 of 42 17 A. Yes, sir. Q. Is the jail on a different floor than the patrol? A. Yes, sir. Q. Okay. Describe that to me so I can get a sense of how the physical layout of the office is. A. Okay. So the physical layout is the first floor is -- there's a lobby that takes off to the left and it goes upstairs to the patrol area, if you will, and EOC, which is the emergency operation center. Down in the first floor we have a lobby and it goes into the jail portion of the building, which is probably about 75 percent of the building, and so -- so the first floor is all pretty much jail and the second floor is emergency operations and patrol. Q. Okay. And what about your office as undersheriff, where is that? A. It's upstairs with the patrol. Q. And what about Sheriff Besecker's office? A. Same place. Q. Okay. You are currently the undersheriff of Gunnison Sheriff's Office? A. Yes. Q. When were you promoted to undersheriff? A. 2010. Q. How did it come to be that you were appointed the undersheriff? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 4 of 42 21 stopped? A. There was a time where the meetings changed, yes, sir. In, I believe -- I don't remember which exact month it was, but I believe around 2014 the supervisors from the jail wanted to distance themselves from the patrol issues and so, therefore, the sheriff and I had two different, separate meetings with the patrol and the jail. Q. The supervisors from the jail meaning who specifically? A. At the time it was captain Kathy Coleman, Sergeant Tracy Murdie, and Sergeant -- I stand corrected, not Tracy Murdie, it was Clay Curtis and Denham Starnes. Q. And why did they want to distance themselves from patrol? A. Scott had thrown his hat into the election ring. Q. So is it your testimony that between 2010, when you were appointed undersheriff, and 2014, you would have monthly or bi-weekly meetings with the supervisors to discuss matters involving the office? A. They were -- they were -- at first they were monthly and then we narrowed it down to once a week. It wasn't a mandatory meeting. Those that could show up, could show up. And the majority of the time everybody took the initiative and came in. Q. Why weren't they mandatory? A. We wanted to allow the officers their time off as well, and the majority of the officers, or the supervisors, the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 5 of 42 22 captain, myself, lieutenant, were usually there so we wouldn't have a miscommunication to the sergeants, or something like that. And there were times that they were not present that we had to catch them up to date, but we tried to make it our best effort to make sure they were caught up before a subordinate was able to go up and tell them what was going on. Q. So the lieutenant would have been Scott Jackson? A. Yes, sir. Q. And so until the supervisors from the jail wanted to distance themselves you met with Scott Jackson weekly? A. Yes, sir. Q. Okay. Do you have notes or records of those meetings? A. For a while we did take notes and then we turned them in to more of timelines and just made sure that people were following up on, you know, different tasks and that kind of stuff, but then we got away with making official notes of the meetings. Q. So do you remember when you stopped taking official notes? A. I do not, sir. Q. Okay. Do you think that the Sheriff's Office still has notes of meetings -- still has the notes that you did take? A. I would have to go back and look for them. Q. Could you do that? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 6 of 42 23 A. I could. MR. ZIPORIN: Just send me a formal request or let me know if you think that would fit within a request that's already been served. BY MR. SAGAL: Q. So as I understand it, initially, these meetings were -- involved you as undersheriff, Scott Jackson as the patrol lieutenant? A. (Nods head up and down.) Q. And who would be the person representing the jail unit? A. So all of the supervisors were invited, from the sheriff to myself, the lieutenant, the captain of the jail, the patrol sergeant, and the two detention sergeants. Q. And do you remember the date where the supervisors from the jail came to you and said: We don't want to attend these meetings anymore? A. I do not. It was after Scott said that he was running for sheriff. Q. Okay. And how did that information come to you? Did one jail person in particular come to you? A. They came to me as a collective group. (Nods head up and down.) Q. Okay. Who was part of that group? A. The three that I just named. Q. Coleman -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 7 of 42 24 A. Starnes. Q. -- Starnes -- A. And Curtis. Q. Okay. Is there a way we can narrow down the date of that encounter with them? A. Not right offhand, no, sir. Q. What did they tell you? A. That the meetings were getting too negative and so they didn't want to be a part of this. Q. Did they explain how they were getting too negative? A. Yes. Q. What did they say? A. For the first couple of years we would have conversations about policy, we would have conversations about, you know, moving into the new jail and the issues that we would be facing, and that kind of stuff, and most of the time Scott sat quiet. Every now and then he would interject, but not really. After he threw his name in the hat for the sheriff's position he became very bold in saying that: I would not like to do that. I wouldn't like to do that. Kind of stifling the movement of the meetings the way that they were set up. Q. Can you remember an instance where Scott told somebody not to speak or not to share their opinions? A. I don't think -- no, I know for sure. Scott wouldn't 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 8 of 42 27 A. Yes, sir. Q. Right? A. Yes, sir. Q. And he had been for some time? A. Yes, sir. Q. And part of his job description would have been to supervise and make input on policies and those sort of matters; correct? A. Yes, sir. Q. Okay. And so it wasn't out of bounds for him to share his opinion about what should be done in a specific matter, was it? A. No. Q. Okay. Did he ever say anything in those meetings to the effect of: When I'm sheriff I'm going to do X? Or: When I'm sheriff I'm going to do Y? A. No, sir. No, sir. Q. Did anyone ever report to you, either from the jail and/or the patrol end, that Scott was making declarations about things that would happen when he's sheriff or anything to that effect? A. No, sir. Q. And your conversation with Sheriff Besecker about Scott's presence in those meetings, when did that take place? A. I don't remember the time frame. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 9 of 42 29 Q. -- would that have justified talking to him about not doing that? MR. ZIPORIN: Object to form. You can answer. BY THE WITNESS: A. It was the way that it was coming across. The jail staff just felt very uncomfortable dealing with Scott as running against the sheriff, who -- the sheriff sets the policies, and they were -- if I can remember correctly, they were concerned that if they said something now, if, in the future, there could be a retaliation against them if Scott would have become sheriff. Q. So to your recollection, did Scott say anything in any of those meetings while he was running for sheriff that was out of bounds, that was not within his authority to talk about anything like that? A. I can't recollect right now. Q. You don't know one way or the other? A. No, sir. Q. If he wasn't running for sheriff would you have talked to him about these things that he was saying in those meetings? A. I would have approached the sheriff and tell him the situation and then go from there, yes, sir. Q. Would you have approached Scott about it? A. Yes, sir. Q. What would you have told him? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 10 of 42 45 direction as well? A. Absolutely. Q. Does that include undersheriff? A. Yes, sir. Q. Was there an existing policy manual prior to August 11, 2014, that was being revised? A. Yes, sir. Q. Why was it being revised? A. It was out-dated. Some of the Colorado Revised Statutes that was within the -- our older policy have either been repealed or changed and so we went through and made grammatical changes, made changes to C.R.S., changes to rules, federal rules and that kind of stuff, and made a draft and gave it to the sheriff. Q. Who worked on that project? A. It was all the supervisors of the Sheriff's Office. So it would have been myself, Lieutenant Jackson, Travis Dooley, Kathy Coleman, Tracy Murdie, and Sergeant Starnes. Q. And how long did that process take? A. Approximately a week and a half. Every day. Q. So you dedicated full-time for a whole week and a half to revising the policies? A. Yes, sir. Q. And you did that in August of 2014? A. I believe it was maybe April or May of that year. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 11 of 42 46 Q. Okay. And what was the -- was there a specific reason for the timing of the revisions? Why were you doing it then as opposed to some other time? A. No. I had recognized that the policy was flawed and so I had all the supervisors get together with all of their input and we devised a draft for the sheriff. Q. And did the sheriff review it? A. He did. Q. Did he give back comments? A. He did. Q. And who did he give them to? A. Travis Dooley. Q. Why Travis Dooley? A. Travis is -- he knows more of the computer system, he knows how to work documents within the ITI program and within the Word, Microsoft Word, and transferring them both over and so more of a computer guy. Q. Okay. So he could do the word processing? A. Yeah. Q. Okay. What is the ITI program? A. ITI is a program we use for our records as in police reports, jail reports. It's our jail management program. It's a web-based program that Sheriff Murdie put into place in 2008, and we just use it as records management and jail management. Q. Okay. So this is a computer system that anybody works 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 12 of 42 47 at the Sheriff's Office can access or should access? A. Absolutely. Q. Okay. And when you're announcing that the policy has been revised, you're telling everybody in the Sheriff's Office that they can find the revised policy in this program? A. Yes, sir. Q. Okay. Why were you asking people if the Sheriff's Office to acknowledge that they had read the policy that you revised? A. Basically make that distinction between the old policy and the new policy. Q. Okay. Was it their responsibility to read it? A. Yes, sir. Q. And acknowledge that they read it? A. Yes, sir. Q. So that they understand that these are the policies by which the Sheriff's Office will operate? A. Yes, sir. Q. Okay. (DOCUMENT ENTERED AS EXHIBIT 24.) BY MR. SAGAL: Q. Take a look at Exhibit 24 and take as long as you need to look through it, but my question to you is: Are these the policies that you were referring to in Exhibit 18? A. (Witness examining documents.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 13 of 42 64 for any personnel purposes, without the member having first reviewed the document. Why is that language in the policy? A. That way they know that they have a right to see it and that they can see their timeline as well. That any negative or positive at'ta boys or distinctions, if you will, within that file, they can always see it at any time. Q. And no member, is that anybody -- is a member defined as anybody within the Sheriff's Office? A. Yes, sir. Q. Okay. Would that include Scott Jackson? A. Yes, sir. Q. Okay. So if notes were taken and -- that were critical of Scott Jackson's performance in any circumstance -- A. Uh-huh. Q. -- and he wasn't aware of those notes -- A. Right. Q. -- then that would be a violation of this policy; right? A. Yes, sir. MR. ZIPORIN: Object to form. You can answer. THE WITNESS: Sorry. BY MR. SAGAL: Q. Is the answer yes? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 14 of 42 65 A. Yes, sir. Q. Let me turn you to -- I wanted to ask you about, because you mentioned evaluations and I wanted to talk to you about evaluations. I'm looking at your position description as the undersheriff. This is page 134 of 204. A. Yes, sir. Q. One of your essential duties and responsibilities is to properly and accurately evaluate performance of subordinates; is that correct? A. Yes. Q. In your particular case were you responsible for evaluating Scott Jackson? A. Yes, sir. Q. And was that as part of your responsibilities? A. Yes, sir. Q. Correct? A. Yes, sir. Q. All right. So if you did not evaluate Scott Jackson, then that would be a dereliction of duty on your part; correct? A. Yes, sir. Q. Take a look at Exhibit 20. A. Are we done with the policy? Q. Yes. We may be. For now. A. Okay. Q. Exhibit 20 is the policy regarding Revocation of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 15 of 42 66 Appointment of Deputy Sheriff. Do you see that? A. Yes, sir. Q. And this was the policy that we looked at in Exhibit 24 that was not part of the policies that were announced August of 2014, prior to the election; is that correct? A. That's correct. Q. What involvement, if any, did you have with the creation of Exhibit 20? A. None. Q. Do you know how it became part of the office policies? A. I was directed by the sheriff to put it into the ITI policy book, and that is as much information as I had regarding this policy. Q. So when did he direct you to do that? A. It would have been either that day or the next day after the 24th, to my recollection. Q. Of 2014? A. Yes, sir. Q. After the election? A. I suspect, yes, sir. Q. When we looked at Exhibit 18 there was an announcement from you -- I believe it's Exhibit 18. It was an announcement from you, back in April of 2014, announcing that the policies had been revised. A. Yes, sir. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 16 of 42 67 Q. Is there any announcement with respect to Exhibit 20? A. Not by me. Q. Okay. Are you aware of any announcement with respect to Exhibit 20 by anybody? A. I don't recall. Q. So there isn't any notification, to your knowledge, of anybody in the sheriff's staff that this policy was implemented in November 2014? A. I do not know. Q. At any rate you weren't responsible for notifying anybody that this was now part of the policy? This meaning Exhibit 20. A. No, sir. Q. Do you know why there was no similar announcement that the policy had been revised in November 2014? A. I do not. Q. Did Sheriff Besecker direct you to put the November 24, 2014, policy into the ITI system in writing or verbally? A. He handed it to me and sent it via email saying: Please put it into ITI. Q. Did you talk to him about the policy? A. No, sir. Q. Did you know why it was being adopted at that time? A. I did not. Q. Were you curious about it? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 17 of 42 68 A. Yes, sir. Q. But you didn't ask him: Why are we doing this now? A. No, sir. Q. Did you read it? A. Yes, sir. Q. Did the email say anything other than: Put it into the ITI system? A. As far as I remember, the email just contained this document, and I copy-pasted it from Microsoft Word into the ITI policy. Q. Okay. A. Just a copy-paste situation. Q. Okay. Got'cha. Okay. We're done with that. A. Okay. MR. ZIPORIN: I want to make a quick record, Roger, that just as any documents marked as confidential subject to the protective order I ask that any testimony related to those documents would also be confidential subject to the protective order. And, Debbie, if you would like, I can say when that protection starts and when it ends, if that works for you as well? MR. SAGAL: You know, I'm glad you brought that up because I was wondering how we would handle this. MR. ZIPORIN: That's my proposal. That way, Debbie can 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 18 of 42 89 Q. Okay. Every one of the discipline letters? A. Uh-huh. Q. Is that a yes? A. Yes, sir. Q. And then every one of the subsequent evaluations will have -- will refer back and see if there's been progress made? A. Uh-huh. Yes, sir. Q. Or there was not? A. Yes, sir. Q. And why do you use the evaluation as a means to follow up on a discipline? A. So the evaluation is, okay, we have a situation that has been dealt with, okay? We deal with the officer, we'll deal with that, and then we move on. Now, the evaluation comes back and it shows that, okay, yeah, we had a situation, but you have improved on it, and we again either give credit to that or we say that, you know, you've had two or three different situations that happened this year and we're going to dock you for, you know, this performance line, if you will. Q. And that's why the evaluations are important? A. Absolutely. Q. Okay. (COURT REPORTER'S NOTE: The following testimony in italics is subject to the protective order in place in this case:) (DOCUMENT ENTERED AS EXHIBIT 30.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 19 of 42 138 A. It's been 2012, I -- No, I do not remember. Q. Okay. Under the section, Performance Criteria, there's three columns and looks like there's an opportunity for the supervisor to check whether or not the employee meets, does not meet, or exceeds the standards? A. Yes, sir. Q. And there's an opportunity for the employee -- for the supervisor to do that? A. Yes, sir. Q. Both parties? A. Yes, sir. Q. Okay. And this, for the year 2011, this would have been a year or so after Sheriff Besecker became sheriff? A. Yes, sir. Q. And you became the undersheriff? A. Yes, sir. Q. You say he's exceeding standards on a working relationship with others in the county, he exceeds standards for working relationships with other agencies and offices, he exceeds the standards for team work, he exceeds the standards for ability to work with the public, and you actually give him a higher mark than he gave himself. A. Yes, sir. Q. Do you see that? A. Yes, sir. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 20 of 42 142 Q. Okay. A. And then working with investigations and seeing if there was certain cases that the patrol officers can just handle versus just automatically passing them over to investigations. Q. Okay. So following 2011, did Scott exercise that responsibility? A. Not as often as we would have liked. Q. Okay. Is there an evaluation that says that he didn't do it as often as you would like? A. I don't have 2012 in front of me. I don't know. Q. Are you aware of whether a 2012 evaluation exists? A. I do not. Q. You do not know? A. I do not know. Without looking for it or researching for it. Q. Are you aware whether a 2013 evaluation exists? A. Again, same answer. I would have to look for it. See it. Q. Are you aware of whether the 2015 evaluation for the year 2014 exists? A. I do not. Q. Okay. Do you recall, sitting here today, actually doing an evaluation other than Exhibit 41? A. I believe I have. It's just without looking for it or seeing it, I couldn't tell you yes or no. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 21 of 42 149 performance of your subordinates? A. Yes, sir. Q. So by failing to do an evaluation, that was a violation of policy; is that correct? A. Yes, sir. Q. And that was an intentional decision by you and the sheriff; is that correct? A. Yes, sir. Q. Because of his candidacy? A. Yes, sir. Q. Now, that would have been -- if you're right about the timing of that conversation, that would cover, I guess, the year 2013? The evaluation would have covered the year 2013? A. Yes, sir. Q. And that means we're still missing an evaluation done in 2013 for the year of 2012? A. Yes, sir. If you don't have it, I don't know where it would be at. Q. Did you do one? A. I don't recall, to be honest with you. Q. Is it possible that you didn't? A. I'm not sure. Q. Just to close the loop on this line of questioning, if the evaluation for the year 2011 in Exhibit 41 had goals for improvement -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 22 of 42 150 A. Uh-huh. Q. -- and if the point of the evaluation in subsequent years is to measure that problem -- A. (Nods head up and down.) Q. -- and give the employee feedback on that -- A. Yes, sir. Q. -- that was not done in Scott's case? A. Like I said -- MR. ZIPORIN: Object to the form. Go ahead. BY THE WITNESS: A. -- I don't know about the 2012 evaluation. I do not remember if I did one or did not do one. But in -- for the year of 2013, I know that there was one prepared by Scott that we chose not to do. BY MR. SAGAL: Q. Okay. Was there any other occasion that you can recall in which you consciously did not do an evaluation for an employee? A. No, sir. Q. That instance in 2014, in your discussion with Sheriff Besecker, was the only instance you can think of where you purposely did not do an evaluation? A. Yes, sir. Q. When you had these -- let's do this. In 2013, Scott elected to have shoulder surgery. Is that your recollection? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 23 of 42 159 Q. Did Sheriff Besecker ever bring any -- bring the team, the sheriff's office together, and tell them that everyone needs to keep doing their jobs and not worry about what's going on in the campaign? Anything like that? A. I don't believe that happened, no, sir. Q. Okay. Did you organize any such meetings? A. No, sir. Q. Okay. Is it fair to say that if any meetings like that were to be held, they would come from the sheriff? A. I would suspect so. I didn't personally set one up just because I needed to keep the -- maintain the operation going. The candidacy was between those two. Q. Did you have any conversations with Scott about how you two were going to continue to interact in the office in light of the campaign? A. No. No, sir. Q. Okay. Did you ever talk about the campaign with Scott? A. No. Q. Are you aware of any instance where Scott was campaigning during working hours? A. No, sir. Q. Did you ever get any complaints from anybody in the office or any information from anybody in the office that during the campaign, Scott was campaigning to them or campaigning or trying to advocate for his candidacy to them? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 24 of 42 161 A. Yes, sir. Q. Did anyone, during the campaign, ever complain to you that someone wasn't doing their job or wasn't doing their job assignment because of the campaign? A. Are you talking about the lieutenant or the sheriff or deputies? Q. Anybody. That's a bad question. Let me start again. Did anyone ever tell you that anybody within the Sheriff's Office failed to do their job because Scott was running for sheriff? A. No, sir. Q. Are you aware of -- during the campaign season, okay? From the time that Scott announced -- A. Okay. Q. -- until the actual election. A. Uh-huh. Q. Are you aware of any instance in which the Sheriff's Office failed to perform its duties as a result of Scott's campaign? A. No, sir. Q. What I'm thinking of when I ask that question is: Did anyone not answer a call? Did anyone fail to investigate a crime? Anything like that? A. As a direct relation to Scott running? Q. Yes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 25 of 42 162 A. If it -- if they failed to take a call, we would have handled it appropriately, just like we did with Martinez, Hart, and everybody else. Q. Okay. So the answer to that is no? A. No. Q. Okay. Is it your belief that Scott, during the campaign -- Let me back up. During the campaign, Scott continued to work; correct? A. Yes. Q. Continued to do his job? A. Yes, sir. Q. Did he ever say anything to you or anyone else that because he was campaigning he wasn't going to do his job or he wasn't going to do some aspect of that job? A. No, sir. Q. While Scott was campaigning, was he going on patrols as well? Let me ask a better question because that's a... During the campaign season, Scott would go on patrols? A. (Nods head up and down.) Q. As is his assignment; correct? A. Yes. Q. Okay. Are you aware of any instance where he failed to answer a call because he was running for sheriff? A. No, sir. Q. Okay. While he was running for sheriff, during that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 26 of 42 164 Q. Arrest control? A. Yes, sir. Q. Gotch'a. How many trainings during the campaign season were there? A. I would have to go and look at the training schedule. Q. Okay. A. I don't know, offhand. Q. This is a training where the patrol unit and the jail unit would get together and do training? A. Yes, sir. Similar to the one on 12/11/14. Q. Okay. And was it reported to you -- were you present at those trainings? A. No, sir. Q. Was it reported to you that Scott was doing anything unusual or doing anything to make people feel uncomfortable during those trainings? A. No. Just his presence. Q. Just by him being there? A. Yes, sir. Q. The fact that he was there and the fact that he was running for sheriff made people uncomfortable? A. Yes, sir. Q. Nothing more than that, to your knowledge? A. No, sir. Q. Okay. And is that the disruption that your -- when I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 27 of 42 165 asked you whether you believed the office was disrupted, is that what you're thinking of? A. There's other circumstances where we have officers ask -- you know, during the debate, the debates and some newspaper articles, they felt that Scott may have been insubordinate to the sheriff and they were asking questions of: Why, or how, can he still be here working at the Sheriff's Office and running against our sheriff? Again, no specifics, but that was the general feeling of the entire office. You know, having an officer or lieutenant run against the sitting sheriff was very awkward for all of us. Q. Okay. It's one thing to be awkward. A. Uh-huh. Q. In my view it's another thing to be disruptive. Do you understand the distinction I'm trying to make? A. I do. Q. Okay. So was there any instance in which the fact that he was running for sheriff caused disruption as opposed to people sort of feeling uncomfortable because he was still working there and running for sheriff? A. No, sir. Q. Okay. And you referred to people commenting about things that came out in the newspaper -- A. (Nods head up and down.) Q. -- or things -- you talked about the debates? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 28 of 42 166 A. Yes, sir. Q. Are you talking about the debate that -- the Gunnison Country Times sponsored debate and the Crested Butte debate? A. Yes, sir. Q. And people were uncomfortable about what Scott was saying in those debates? A. Yes, sir. Q. Okay. His speech during the campaign? A. Yes. Q. Which he was not doing on duty? A. No. Q. Okay. Did anyone ever refuse to go to work because Scott was there while running for office? A. No. Q. Did anyone refuse to be -- well, you mentioned one example, but other than the jail staff not wanting to have those meetings that we talked about earlier, was there any instance that you can think of in which someone refused to work with Scott because he was running for sheriff? A. No. Q. After the election was finished and Sheriff Besecker had won, did Scott continue to come to work? A. Yes. Q. Did he continue to do his job? A. Yes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 29 of 42 167 Q. After the election, was there any instance in which his presence disrupted the operations of the office? A. No. Q. Was there any instance in which Scott, in any way, either expressly or implicitly tried to undermine the sheriff's authority after the election? A. Not to my knowledge. Q. You never observed it? A. No, sir. Q. Was there any instance after the election where Scott, to your knowledge, refused to follow any orders? A. Not to my knowledge. Q. Was there any instance after the election, to your knowledge, where Scott, during working hours, criticized the sheriff? A. I don't know. Q. You're not aware of any? A. No, sir. Q. After Sheriff Besecker won re-election, did he continue to run the Sheriff's Office? A. Yes, sir. Q. Do you believe, as his undersheriff, that he was able to maintain operations in the office? A. Yes, sir. Q. Did he maintain his authority? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 30 of 42 168 A. Yes, sir. Q. Did anyone show any disrespect to Sheriff Besecker because he had been challenged by someone within the office? A. No, sir. Q. After the election, did anyone refuse to follow an order from Sheriff Besecker because he was challenged in the 2014 election? A. No, sir. Q. Now, there was a point in time where you made your views known during the election as to who you preferred as a sheriff? A. Yes, sir, I did. Q. Okay. Why did you do that? A. I felt that there was some misleading information going out in the newspaper. Q. What kind of misleading information? A. About certifications, about activities within the Sheriff's Office, and just declarations that had not been followed through. Q. What do you mean by declarations that had not been following through? A. One of them was the -- he is a hostage negotiator, and I wanted to make sure that everybody knew that after nearly 20 years he had never practiced that hostage negotiator position, and that we sent other people to that training because he would 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 31 of 42 169 never step up. Q. Did all the misleading information that you're talking about come directly from Scott or did it come from potentially other sources? A. It may have come from other sources. Q. Okay. And that information that came out during the campaign that you're talking about, this misleading information, that caused you to speak out on your own behalf? A. Yes, sir. Q. Okay. And do you feel like you had a right to do that? A. Yes, sir. Q. Do you feel like you had a First Amendment right to do that? A. Yes, sir. Q. Did you speak with Sheriff Besecker before you did it? A. No, sir. Q. You just did it on your own? A. Yes, sir. Q. If you had spoken out as you did, and suffered an adverse job consequence because of it, would that cause you to believe that your rights to speak out had been violated? MR. ZIPORIN: Object to the form. You can answer. BY THE WITNESS: A. No. BY MR. SAGAL: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 32 of 42 173 A. Yeah. Q. Okay. A. Okay. I mean our emails are readily available on the website and I do not know who he is at all. Q. Okay. Okay. The things that you said in your -- Well, take a look at -- Let me do this. I know this letter is somewhere in the record, but I think it was in the larger packet of -- MR. ZIPORIN: I know exactly where it is if you want to locate it. MR. SAGAL: I'm going to introduce it as an exhibit because it's just easier to find. (DOCUMENT ENTERED AS EXHIBIT 42.) BY MR. SAGAL: Q. Is this the letter that you wrote to the newspaper expressing your views on the election? A. Yes, sir. Q. And this was supportive of Sheriff Besecker? A. Yes, sir. Q. And critical of Scott Jackson? A. Yes, sir. Q. Okay. And this was published in October of 2014? A. Yes, sir. Q. And you sent the letter to both the Gunnison Country Times and the Crested Butte newspaper; is that right? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 33 of 42 174 A. Yes, sir. Q. Do you know whether it was published anywhere else? A. I do not. Q. And this is the letter that you had -- your belief is you had a First Amendment right to -- A. Yes, sir. Q. -- to submit? A. Yes, sir. Q. And to state your views? A. Yes, sir. Q. Okay. Were there any adverse job consequences to you as a result of your submitting this letter? A. No, sir. Q. Did Sheriff Besecker tell you that you couldn't write it? A. No, sir. Q. Did he tell you that your job was in jeopardy because you did it? A. No, sir. Q. And obviously you were not terminated because of it? A. No, sir. Q. And you're critical of things that either Scott said -- well, you're critical of -- in your letter to the editor, you're critical of things that Scott said during the course of the election? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 34 of 42 178 Q. Okay. I appreciate you telling me that. Do you remember when that meeting was? A. No, sir, I do not. Q. Who asked you to be there? A. The sheriff did. Q. In what capacity? A. He just asked if I would step in here real quick. Q. Was it your understanding that you were there to be a witness? A. I wasn't told that, no. Q. Okay. A. I don't know why. Q. Did you hear the conversation? A. All's I remember was the sheriff handing Scott a letter. And I don't -- I don't recall the specific words that were exchanged, but I do remember a handing over of a letter. I mean the meeting lasted maybe a minute and a half or less, so it was walk in, watch this, walk out, kind of thing. Q. Were you surprised that he was terminated? A. I didn't have any opinion in it. Q. Really? A. No. Q. So if he wasn't terminated, in March, 2015, would you have continued to work with him? A. Of course. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 35 of 42 179 Q. Would you have continued to go on calls with him? A. Yes. Q. Do you believe that you would have had his back in a bad situation and he would have had your back in a bad situation? A. Absolutely. Q. Would you have trusted him to serve the public and answer calls and answer emergencies? A. Yes. Q. Okay. Let's talk about time sheets. Tell me about the process of putting together these time sheets. And I'm going back to this was the job that you gave Scott while he was on light duty. A. Okay. Q. Okay. What is that process? Help me understand it. A. So if you take a look at Exhibit 40, Exhibit 40 is an electronic document and it is within a shared file in the Sheriff's Office. You bring up the electronic file, you also bring up a separate electronic file for the time sheet, and you go to the bottom of the page where it says time sheet. There's a tab at the bottom of the electronic form. It's an Excel worksheet. And you highlight that and you go up and you copy-paste the numbers and -- that is being displayed and put it directly into the time sheet, copy-paste. Q. So there's a -- let me see if I understand this. Each 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 36 of 42 192 what are you asking? A. I'm asking Sheriff Besecker for permission to speak with Scott about these items listed. Q. Okay. That's what I thought you meant. And were you given permission to talk to Scott about it? A. No. Q. Were you specifically denied that permission? A. I handed the problems that are listed here to the sheriff and I don't remember if the sheriff said, No, don't go talk to him about it, or whatever. I was continuing on getting the time sheets done. Q. Are you aware of whatever happened with your -- what Sheriff Besecker did with this email? A. I do not. Q. Okay. But you never addressed them with Scott? A. No, sir. Q. Because you didn't get permission from Besecker to do that? A. Yes, sir. Q. Okay. Had you been given this permission, what would you have talked to Scott about? A. The things listed. It's imperative that we make sure we get our times correct. It's imperative that -- you know, you're doing a job that affects everybody on the patrol. You need to be there for them and make sure that it's right. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 37 of 42 198 the fact that this was during the campaign? A. No, sir. Q. Nothing to do with that? A. Nothing to do with that. Q. Okay. (DOCUMENT ENTERED AS EXHIBIT 44.) BY MR. SAGAL: Q. Exhibit 44 is an email from you to Scott. It looks like a follow-up on the email we just looked at? A. Yes, sir. Q. And you're saying: Thank you for doing the task that you -- A. It was completed. Q. You're saying: Thank you for doing the task that I asked you to do in my last email. Right? A. Yes, sir. Q. Okay. And he did it within the time frame? A. (Nods head up and down.) It looks like it, yes, sir. Q. And you say thank you in all caps with an exclamation point; right? A. Yes, sir. Q. And then you go on to talk about other business that needs to be dealt with; right? A. Yes, sir. Q. Okay. And, again, you copied Sheriff Besecker on this? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 38 of 42 201 didn't know how to address Scott. Q. We all? A. I'll just say I didn't know how to address Scott without it looking like retaliation. Q. And by retaliation, you mean: We're criticizing you because of the election. Is that right? A. Yes, sir. Yes, sir. Q. And, again, Scott had never given you any indication at any time before this that if you came to him with a criticism or a problem, that he would react like that; right? A. No. No. (DOCUMENT ENTERED AS EXHIBIT 47.) BY MR. SAGAL: Q. Have you seen Exhibit 47 before? A. Just with the packet that my attorney gave me. Q. Did you generate -- A. No, sir, I did not. Q. -- Exhibit 47? A. No,sir. Q. Do you know who did? A. No, sir, I do not. Q. Do you know when these notes were generated? A. I do not. Q. Have you reviewed it? A. I've read it, yes, sir. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 39 of 42 214 A. Yes, sir. Q. Okay. Did you talk to him about it? A. The sheriff? Q. Yes. A. Yes. Q. Okay. Did you talk to him about Scott's role in it? A. Yes, sir. Q. And just in case -- I'm sorry to repeat myself, it's getting a little bit late, but you did not share this document, Exhibit 48, with Scott Jackson at any time? A. No, sir. Q. And you didn't tell him you were drafting it? A. No, sir. Q. Okay. (DOCUMENT ENTERED AS EXHIBIT 49.) BY MR. SAGAL: Q. Do you recognize Exhibit 49? A. I do not. Q. Did you generate this document? A. I'm uncertain. Q. I'll let you take a look at it just to make sure. A. I'm uncertain if I made it or not. Q. Okay. Do you remember writing that Scott was guilty of dishonesty? A. This doesn't reflect anybody's name, so I don't know who 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 40 of 42 215 it was to or why it was written. Q. Okay. So the list in the exhibit under, Disciplinary Actions, specific violations, one, neglect of duties; three, interference with sheriff's operations; four, inability to perform assigned duties; five, insubordination; 16, dishonesty; 19, behavior inappropriate to one's position; 20, acts that are intended to undermine supervisory integrity; 22, failure to adequately supervise subordinate members. Sitting here today, you can't tell me why this list was generated? A. Like I said, there's not a name to it or a date to it. I don't know why it was there or who's it even referencing. Q. Okay. And you may or may not have actually generated this? A. I do not recognize it. Q. Okay. Was there a point in time you were asked to respond to an inquiry from Amy Sharkey about Jackson's termination? A. You would have to be more specific. Q. Who's Amy Sharkey? A. She was the HR director at the time. Q. Is she there -- is she at the HR department now? A. She's resigned. Q. She resigned? A. Yes. Q. Do you remember handling an inquiry from her about an 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 41 of 42 235 Q. Because if they are asking you a question about it and saying, What are you and the sheriff going to do about this statement that was made in the campaign, meaning -- let me back up. The questions were in the nature of: How are you going to respond to Jackson's statements in the campaign? In the context of Besecker's campaign; right? A. No. They were asking me if we had issues with the policy and procedure. You know, with what he -- what Scott and some of his supporters were saying about our department was inaccurate. It was false statements. Q. Uh-huh. A. And they would come to me and ask me specifically: What are we going to do? How are we going to get past this? Because this is error; this is making the Sheriff's Office look bad, because -- Q. Right. And that's why you wrote your letter? A. No, sir. No, sir. That's all from me. Q. Okay. And anyone refuse to work with Scott Jackson? A. No. Q. Did Scott Jackson ever tell anybody that they would be terminated if he was elected? A. I don't know. Q. To your knowledge, did he? A. Not to my knowledge. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-4 Filed 07/20/16 USDC Colorado Page 42 of 42 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. 15-cv-01182-JLK RICHARD SCOTT JACKSON PLAINTIFF Versus RICHARD BESECKER, Individually, DEFENDANT and in his official capacity as Sheriff of Gunnison County, CO --------------------------------------------------------------- DEPOSITION OF SCOTT JACKSON --------------------------------------------------------------- Taken on Monday, March 8, 2016, in the County Court Jury Room in the Gunnison Combined Courts Courthouse, Gunnison Colorado A-P-P-E-A-R-A-N-C-E-S ROGER F. SAGAL, Attorney at Law Sagal Law Group, LLC Ridgway, CO REPRESENTING SCOTT JACKSON, Plaintiff BRIAN ZIPORIN, Attorney at Law Senter, Goldfarb & Rice Denver, CO REPRESENTING RICHARD BESECKER, Defendant ALSO PRESENT: Richard Besecker, Defendant Randy Barnes (from 1:15 p.m to 2:00 p.m.) REPORTED BY: DEBORAH A. HARRIS, RMR, CRR, CSR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-5 Filed 07/20/16 USDC Colorado Page 1 of 5 230 to meet and talk to me. Q. Why did you ask him if there was a place for you in the Department? A. Because I had seen the gradual whittling away of some of my responsibilities and I thought that he was either working to get me out of there or not, and I hadn't done anything wrong; I just ran for office. Q. Did your opinions of Sheriff Besecker change as a result of the campaign? A. No. Q. So you still thought he was a poor leader? A. I think he needed some help with his leadership. Q. Did you still think he was not a good leader? A. Yes. Q. Did you still think he ran a department in which citizens were hesitant to contact the Department? A. At times. Q. And did you still think that he allowed an atmosphere of bullying? A. At times. Q. Did you still think that he managed based on fear and intimidation? MR. SAGAL: Objection to form. BY THE WITNESS: A. At times. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-5 Filed 07/20/16 USDC Colorado Page 2 of 5 231 BY MR. ZIPORIN: Q. Did you still think he worked in a department that didn't provide safety to its citizens? A. At times. Q. Did you still feel that he ran a department where people didn't feel respected? A. Can you be more specific on that. Q. Well, I'm reading your letter, Exhibit Seven, where you say that he -- you want to begin to generate a safe and secure county where everyone feels respected. A. Okay. At times. Q. And did you think that he still ran a department that didn't fairly treat people in the community? A. At times. Q. And this was a man in a department you still wanted to work for? A. Yes. Q. Why? A. I wanted to help him make a better department. Q. Well, you wanted to do that four years prior; correct? A. Yes. Q. And needless to say, you were unsuccessful in doing that because you ran for sheriff in 2014; correct? A. Yes. Q. So what made you think, based on the history, that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-5 Filed 07/20/16 USDC Colorado Page 3 of 5 249 A. I don't know. Q. Okay. (DOCUMENT ENTERED AS 21.) BY MR. ZIPORIN: Q. Exhibit 21 is a letter presented to you by Sheriff Besecker dated January 13, 2015. Do you see that? A. Yes. Q. And were you in fact provided this letter on or about that date? A. Yes. Q. And was it handed to you in person? A. I believe it was. Q. And it was this in-person meeting which generated that recording that we referenced earlier; correct? A. Yes. Q. All right. And this letter represents that the sheriff is offering you the opportunity for a graceful separation with the acceptance of a severance package in the amount of roughly $43 thousand; correct? A. Yes. Q. Were you surprised when this was presented to you? A. Yes. Yes. Q. Why? A. Our last conversation I thought the sheriff was wanting to work things out and I think he even had brought up that I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-5 Filed 07/20/16 USDC Colorado Page 4 of 5 250 brought up some good points during the campaign, asked me to do the bullet points, which I had done, and I thought our next meeting would be to discuss those bullet points. Q. So had you and the sheriff not had any substantive conversation about your future since there was the conversation about you putting your thoughts in writing? A. Yes, sir. Q. And that would have been back, do you believe, in sometime in November of 2014? A. The second conversation? Q. Correct. A. Yes. Q. And so you had -- again, you hadn't taken the initiative to approach the sheriff in that roughly two-month time period to find out the status of your job? A. No. Q. During the meeting that you recorded did the sheriff know you were recording him? A. No. Q. If you were surprised by the receipt of this severance package, how were you prepared with your recording device? A. I don't understand. Q. You were surprised when the sheriff presented you this severance package; correct? A. Yes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-5 Filed 07/20/16 USDC Colorado Page 5 of 5 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. 15-cv-01182-JLK RICHARD SCOTT JACKSON PLAINTIFF Versus RICHARD BESECKER, Individually, DEFENDANT and in his official capacity as Sheriff of Gunnison County, CO --------------------------------------------------------------- DEPOSITION OF TRAVIS DOOLEY --------------------------------------------------------------- Taken on Wednesday, April 27, 2016, in the County Court Jury Room in the Gunnison Combined Courts Courthouse Gunnison, Colorado A-P-P-E-A-R-A-N-C-E-S ROGER F. SAGAL, Attorney at Law Sagal Law Group, LLC Ridgway, CO REPRESENTING SCOTT JACKSON, Plaintiff JENNIFER KEMP, Attorney at Law Senter, Goldfarb & Rice Denver, CO REPRESENTING RICHARD BESECKER, Defendant ALSO PRESENT: Scott Jackson, Plaintiff REPORTED BY: DEBORAH A. HARRIS, RMR, CRR, CSR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 TABLE OF CONTENTS DIRECT EXAMINATION------------------------------------------ 3 CERTIFICATE OF COURT REPORTER------------------------------- 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 WHEREUPON, * * * TRAVIS DOOLEY, was called as a witness, and having been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. SAGAL: Q. Sir, please state your name. A. Travis Dooley. Q. Mr. Dooley, my name is Roger Sagal and I'm here to talk to you because there's a pending lawsuit brought by Scott Jackson against Sheriff Besecker, and I understand you may have some information related to the claims in the case, which is why you're here today. Do you understand that you're under oath? A. Yes. Q. Okay. Have you ever given a deposition before? A. No. Q. Have you ever given sworn testimony before? A. Yes. Q. In what context? A. Through my job in the criminal side and once in my parents' divorce proceeding. Q. Okay. Have you ever been convicted of a crime? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 A. Deferred. I'm not sure if that's a yes-or-no, so... Q. You received a deferred sentence? A. Yes. Q. For what? A. DUI. Q. What was that? A. 1998. Q. Do you know whether or not the deferred sentence was -- did you complete the terms of the deferred sentence? A. Yes. Q. Do you know whether or not the case was dismissed? A. No. I don't. Q. Okay. Any other criminal history? A. No. Q. Where was the DUI? A. Chaffee County. Q. Okay. Have you given sworn testimony in any other circumstance other than what you just described, your criminal cases, in the course of your work and your parents' divorce? A. No. Q. Have you ever been a party to a lawsuit? A. No. I was never -- I was never called to testify for it, so... Q. Have you ever been a party to a lawsuit, named in a lawsuit? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-6 Filed 07/20/16 USDC Colorado Page 1 of 3 29 off and life gets in the way on the days off from work, I suppose. But I don't believe there's been one in several weeks. Q. Do you know if one is scheduled to occur any time soon? A. They are Thursdays at 3:00 and everybody knows I have court tomorrow, so I -- if there is one, I don't know about it. Q. Okay. When was the last time, if you can remember, that there were regular supervisor meetings that were attended? A. Let me do some math here. Are you accepting guesses? MS. KEMP: No. BY MR. SAGAL: Q. Yeah, you shouldn't -- A. (Witness gestures.) I can be approximate, but I'm not sure I can do any better than that. Q. Do the best you can. A. If I had to guess I would say June, maybe July of 14. Q. Is when they stopped? A. At least they certainly stopped being a weekly event on Wednesdays or Thursdays. Q. Do you know why? A. I don't. Q. Did anyone tell you why? A. No, sir. And I do apologize if that's not the right time frame. Q. Okay. A. That's the best recollection I can come up with. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 Q. If they were stopped, and I understand this is a general guess, essentially, but if they were stopped in June, July, 2014, do you remember when they picked up again? A. They never have. Q. They never have? A. No. We will go, you know, for maybe a month or two and they will have those meetings and then just general busy-ness will prevent them from happening for maybe a few more weeks. So they're real intermittent anymore. Q. Okay. Do you have an understanding of whether the position of patrol lieutenant still exists? A. It exists in the policy manual. We have a new policy that we're currently working on through an outside vendor and I don't know if that's going to appear in there. I've not -- I've got a log-in for this particular website, but I've never gotten on it to see if it's still in there. Q. The new policy you're talking about specifically relates to patrol lieutenants or is this another type of -- A. A whole new policy. Q. Okay. A. Start to finish. Q. All right. Has that been adopted? A. No. No. Q. Do you know why, after just recently revising your policies in 2014, that they are being looked at again? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 A. This company -- MS. KEMP: Lexapol. BY THE WITNESS: A. Lexapol, Lexapro, I guess they are the new thing in law enforcement policies. It's my understanding that they offer maybe three different options of best practices, okay? And then there's -- you can free text in policy. BY MR. SAGAL: Q. Uh-huh. A. And then it's -- so it's more of a, based on my understanding, I have a real limited knowledge on it, it's a way to get vetted policies through Supreme Court, state courts, things like that, and this company, Lexapol, will update a suggested policy based on a Court decision, for instance. Q. Uh-huh. A. And then we get notification, we review it, if we want to adopt that, we can. If we decide not to, we don't have to. Q. Is that work currently taking operation? A. As far as I know right now it's only on the detention side. The patrol side I know is coming. It may have been started -- in fact, I think Sergeant Mykol has done some work on that, but to what degree, I don't know. Q. Okay. So back to, is it your understanding that there is an open position for patrol lieutenant? A. No. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 Q. There is not one? A. I don't know. There's not been any announcements on the promotion board or anything like that. Q. Okay. Are you anticipating that there will be a position for patrol lieutenant opening up? A. Not that I'm aware of, no. Q. Has anyone told you that it would open up? A. No. Q. Has anyone told you one way or the other whether it would open up or whether that position will not exist anymore? A. No, sir. Q. No one's told you that? A. No. Q. Okay. I wanted to ask you a little bit about the election of 2014. A. Okay. Q. Prior to the election, did you continue to -- excuse me. When did you learn that Scott Jackson was running for sheriff? A. I want to say it was March. I heard -- I heard that he had decided to run maybe a day or two before the paper came out announcing it. Q. Okay. And prior to your learning, did you continue to perform your duties in the Sheriff's Office? MS. KEMP: Object to form. You can answer. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-6 Filed 07/20/16 USDC Colorado Page 2 of 3 33 BY THE WITNESS: A. I'm not sure I understand what you're -- what you mean by that. BY MR. SAGAL: Q. What I mean is did you continue to show up? Did you show up to work? A. Yes. Q. Okay. Did you do what you were supposed to do? A. Yes. Q. After the announcement, did you show up for work? A. Yes. Q. Did you continue to do what was asked of you? A. Yes. Q. Did you perform your duties? A. Yes, sir. Q. After Mr. Jackson announced his intent to run -- A. Uh-huh. Q. -- did you refuse to do any duty assigned to you? A. No. Q. Did you refuse to work with Mr. Jackson? A. No. Q. After the election itself, which took place in November 4, 2014 -- A. (Nods head up and down.) Q. -- did you continue to show up for work? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 A. Yes. Q. Did you continue to do the duties assigned to you? A. Yes. Q. Did you refuse to work with Mr. Jackson? A. No. Q. In light of Sheriff Besecker's victory in the campaign -- A. (Nods head up and down.) Q. -- had Mr. Jackson not been terminated, would you have continued to work with him? A. Yes. Q. Would you have continued to perform your duties? A. Yes. Q. Did you ever receive any complaints about Mr. Jackson from anyone outside the Sheriff's Office? MS. KEMP: Object to form. You can answer. BY THE WITNESS: A. I don't recall. I don't recall anybody making a complaint about Scott. BY MR. SAGAL: Q. Okay. I'll ask you a series of questions and again, I'll try to break it down in terms of a time frame. A. Okay. Q. Okay? To make this a little bit clearer, hopefully. A. Okay. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 Q. After Scott Jackson announced his intent to run for sheriff, did anyone ask you about any issue regarding any poor performance by Mr. Jackson? MS. KEMP: Object to form. You can answer. BY THE WITNESS: A. Who are you referring to? BY MR. SAGAL: Q. Anybody. A. Anybody at all? Q. Yeah. A. I don't recall anybody, no. Q. Okay. What about after the election itself, did anyone approach you and ask you about any issues regarding Mr. Jackson's poor performance? A. Not that I can recall. I'm sorry. Q. When did you learn that Mr. Jackson was terminated from his employment? A. December of 14? January? I -- It was -- It was a while after the election. Weeks. But I don't -- I couldn't tell you how many. Q. Who told you? A. I don't remember. Q. Do you remember where you were when you learned it? A. I was at work. Q. Okay. And you think if the election took place on 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 November 4, 2014 -- A. (Nods head up and down.) Q. -- is it your recollection that someone told you he was terminated in December of 2014? A. It was when -- I believe it was -- he had a meeting with the sheriff and I was working that day and so I guess it would have been right after that. Q. Okay. But you can't narrow -- can we narrow it down to a month? A. No. Q. All right. A. I'm not sure how long Scott was with the Sheriff's Office after the -- after the election. That last meeting that they had, or that I'm aware of, that I know that they had, it was after that. Q. Okay. How do you know that they even had a meeting? Did you actually see it? A. No, no. It was -- it may have been Jill that told me that Scott was coming in to meet with the sheriff and that -- I had no context of the meeting, of course, and then afterwards I was told that Scott had been terminated. Q. Okay. After Mr. Jackson announced his intent to run, are you aware of anyone who refused to perform the duties assigned to them because of his decision to run for sheriff? A. No. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-6 Filed 07/20/16 USDC Colorado Page 3 of 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. 15-cv-01182-JLK RICHARD SCOTT JACKSON PLAINTIFF Versus RICHARD BESECKER, Individually, DEFENDANT and in his official capacity as Sheriff of Gunnison County, CO --------------------------------------------------------------- DEPOSITION OF MARK MYKOL --------------------------------------------------------------- Taken on Wednesday, April 27, 2016, in the County Court Jury Room in the Gunnison Combined Courts Courthouse Gunnison, Colorado A-P-P-E-A-R-A-N-C-E-S ROGER F. SAGAL, Attorney at Law Sagal Law Group, LLC Ridgway, CO REPRESENTING SCOTT JACKSON, Plaintiff JENNIFER KEMP, Attorney at Law Senter, Goldfarb & Rice Denver, CO REPRESENTING RICHARD BESECKER, Defendant ALSO PRESENT: Scott Jackson, Plaintiff REPORTED BY: DEBORAH A. HARRIS, RMR, CRR, CSR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 TABLE OF CONTENTS DIRECT EXAMINATION------------------------------------------ 3 Exhibit 101------------------------------------------------- 19 CERTIFICATE OF COURT REPORTER------------------------------- 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 WHEREUPON, MARK MYKOL, was called as a witness, and having been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. SAGAL: Q. Good morning sir. Could you please state your name for the record. A. Mark Mykol. Q. And, Mr. Mykol, my name is Roger Sagal and I represent Scott Jackson in a pending lawsuit against Sheriff Rick Besecker and the reason why -- which is the reason why you're here. So I wanted to ask you a couple of questions. Do you understand that you are under oath? A. Yes. Q. Okay. And have you ever had your deposition taken before? A. Not that I know of. Q. Have you ever given sworn testimony before? A. Yes. Q. When have you given sworn testimony before? A. In, like, court cases. Q. Okay. Would those be circumstances where you were a testifying witness? A. Yes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 Q. Have you ever been a party to a lawsuit? A. Not that I can think of right now. Q. Have you ever given sworn testimony in any other context other than as a testifying witness in a criminal case? A. Say that one more time. Q. Have you ever given sworn testimony in any other circumstance? A. Not that I remember. Q. Okay. And what did you do, if anything, to prepare for your deposition today? A. Not too much. I talked with Jen a little bit about the process here today. Q. Talking about Ms. Kemp sitting next to you? A. Yes. Q. Is she your lawyer in this case? A. No. Q. What did you talk about? MS. KEMP: I'll jump in there. I think that what we talked about is still subject to the attorney-client privilege even if he's not my client. He's a representative of the sheriff and the Sheriff's Office and so those are attorney-client privileged communications. MR. SAGAL: Okay. So are you telling him not to answer that question? MS. KEMP: I am. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-7 Filed 07/20/16 USDC Colorado Page 1 of 5 21 A. Kind of a religious thing, you know. BY MR. SAGAL: Q. Okay. The date of this letter is March 24, 2015. Other than you being a magnificent person, does that refresh your recollection as to why you got this letter at that time? A. No. Q. Okay. Were you the only person to receive this or did other people receive a letter referencing an Armor of God Award? MS. KEMP: Object to foundation. Go ahead. BY THE WITNESS: A. I don't know. BY MR. SAGAL: Q. Do you know if other people got a necklace with a saint on it? MS. KEMP: Same objection. Go ahead. BY THE WITNESS: A. I don't know. BY MR. SAGAL: Q. Did you talk about this with anybody? A. Maybe my wife. Q. Okay. Anyone else? A. Not that I know of. Q. Okay. Did you ever talk with Sheriff Besecker about what an Armor of God Award is? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 A. No. Q. Did you ever talk with anyone else within the Sheriff's Office about what an Armor of God Award is? A. No. Q. Have you ever received any other Armor of God Awards? A. Not that I know of. Q. Okay. Were you surprised when you got this? A. I don't know. Q. You don't know because you don't remember or -- A. That's correct. Q. Okay. And you don't remember the specific reason why you were given this or a necklace with a saint on it? A. I don't. Q. And you've never talked about it with Sheriff Besecker? MS. KEMP: Object to the form. I think he's answered that. BY THE WITNESS: A. I probably said: Hey, that's cool. Or something like that. But as far as sitting down and talking about what Armor of God Award it is or that little emblem necklace deal, I don't think we talked at that kind of length. BY MR. SAGAL: Q. Okay. Did you do defensive tactics trainings? Did you teach defensive tactics trainings in 2014? A. Yes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 Q. Do you recall when you taught them? A. I don't recall. Q. Do you recall whether Scott Jackson was present in the classes? A. I think he was, yeah. Q. Okay. Do you recall anything unusual occurring while you were teaching the class and Scott Jackson was there? A. Not really. Q. Do you recall him being -- following the class as opposed to being obstructive or, I guess, not following the class? A. I recall him following the class. Q. Okay. Did he follow your instruction? A. Yes. Q. Okay. Do you recall there being classes both during -- were there any classes during the election or the campaign season between, say, early in 2014 -- let me ask a better -- A. Yeah. Q. You're aware of the election for sheriff that occurred in 2014? A. Okay. 2014 was the election; right? Q. Yeah. A. Some of this stuff I can't remember the exact dates. Q. That's why I'm trying to give you a little bit of an orientation. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 A. Okay. Q. So the election was in November of 2014. A. Okay. Q. Okay? Do you recall teaching a class prior to that, in November of 2014? A. You know, yeah, I'm sure I did. I don't do a lot of classes so I don't remember really a specific class. Q. Our record shows there was a class in September of 2014, September 16, 2014. A. Okay. Q. Does that sound right to you? A. Could be. Q. All right. A. Yes. Q. And do you recall Scott Jackson being present in that class? A. I would have to look at the roster and see exactly who was there. Q. What about after the election on November 4, do you recall teaching a class after the election? A. You know, I teach a lot of classes. I don't remember that exact November 4 date class. I would have to check back and see what we did. Q. Our records show that there was a class in November, on November 20, 2014, and December 11, 2014. Does that right to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-7 Filed 07/20/16 USDC Colorado Page 2 of 5 25 you? A. Pretty good chance, yes. Q. Okay. Do you recall Scott Jackson being present in any of one of those classes? A. Again, I would have to take a look at the roster to prod my memory a little bit if he was there or not. Q. Sitting here today, do you remember him being there or not being there? Or you just don't remember? A. I just don't remember. Q. Okay. A. I do a lot of stuff. Q. Do you remember him ever being disruptive in any classes that you taught where he attended? A. No. Q. Do you recall him ever not following orders during those classes? A. No. Q. You said that -- do you -- well, let me ask you -- try to ask you a better question. Do you recall whether the purpose of those classes, whether they be in September of 2014, November of 2014, or December of 2014, were for the purposes of recertification? MS. KEMP: Object to form. You can answer. BY THE WITNESS: A. They are all part of the recertification process. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 BY MR. SAGAL: Q. Okay. Do you know whether or not Scott Jackson was recertified in whatever qualifications that he needed to have in terms of defensive techniques? A. I can't answer that. I would have to take a look at the records. I know he was out for a little bit and I don't know when that was, so... Usually, if you're out with an injury you've got, like, a medical release, so I can't answer that. Q. Okay. Do you recall him, and maybe this isn't the right terminology, but failing any of those classes? A. No. Q. Do you recall anyone else refusing to attend a class that you taught because Scott Jackson also attended that class? A. I don't recall it. Q. Do you recall anyone telling you that they didn't want to -- Let me ask a different question. Do you recall anyone telling you that they were not going to attend the class because Jackson was going to attend the class? A. No. Q. How closely did you work with Scott Jackson while you were both employed with the Sheriff's Office? A. I'm not sure how to answer that. Q. Did you work with him? A. On occasion. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 Q. And the occasions would be dictated by what? Scheduling? A. Yes. Q. Were there times where -- let me back up for foundation. You're both within the Patrol Division; correct? A. Yes. Q. Did you go out on calls together? A. None are really jumping out at me, but I'm sure we did a time or two. Q. Okay. Did you work with him prior to 2014? MS. KEMP: Object to form. You can answer. BY THE WITNESS: A. I would say yes. BY MR. SAGAL: Q. Okay. Did you work with him during the calendar year of 2014? A. During what? Q. The calendar year of 2014. A. Yes. Q. Did you work with him after the election of 2014, which took place on November 4, 2014? A. Yes. Q. Did you ever refuse to work with Scott Jackson? A. No. Q. To your knowledge, did anyone else ever refuse to work 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 with Scott Jackson? A. Not to my knowledge. Q. Okay. And that's true even after the election; correct? A. Correct. Not to my knowledge. Q. Okay. Are you aware of anyone failing to do their job or failing to perform any specific job responsibilities as a result of Scott Jackson? MS. KEMP: Object to form. You can answer. BY THE WITNESS: A. Repeat that question. BY MR. SAGAL: Q. Sure. It was a bad question. I'm aware that -- Let me try to do it again. After Scott Jackson announced his candidacy for sheriff, he continued to work in the Sheriff's Office; is that correct? A. Yes. Q. And after the election results were final, he also continued to work in the Sheriff's Office until he was terminated in March of 2015. Does that sound right to you? A. Yes. Q. Okay. Either during the campaign season in 2014, or after the election, to your knowledge, did anyone within the Sheriff's Office fail to perform any of their duties because of Scott Jackson? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-7 Filed 07/20/16 USDC Colorado Page 3 of 5 29 A. I believe so. Q. Okay. What examples do you have? A. I know Warren Taylor completely fell off the face of the earth as a patrol deputy. Q. What's that got to do with Scott Jackson? A. It appeared as if he was possibly coached or promised something or -- What it's got to do with Scott Jackson is the time frame of the campaign and everything else that was going on. Q. What does that mean, he fell off the face of the earth? A. You know, when you're on duty you're kind of in the zone and you know what's going on all around you, okay? And Warren was a pretty OK worker for a while, and then, all of a sudden, you didn't hear anything whatsoever out of him. No self- initiated work. Just would disappear. Just mark time. Q. What do you mean mark time? I'm not sure what you mean. A. Come in to work, get a paycheck, and do nothing. Q. And did anyone, did you -- you were his supervisor? A. No. Q. What position did Warren have? A. Warren? Q. Yeah. A. Patrol deputy. Q. And so Warren, you say he just wasn't working as hard? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 Is that, do I understand what you saying correctly? A. Yes. Q. And you attribute that to Scott Jackson? A. Yes. Q. How? A. I thought I kind of explained that. That maybe it appeared he was coached or maybe promised stuff and told just, you know, You don't have to do anything for these guys. I don't know exactly how, but it was pretty obvious it was during that time frame and he kind of slacked off on all his work. Q. Do you have any specific information sitting here today, under oath, that Scott Jackson promised or coached Warren Taylor? A. No. Q. Do you have any specific information sitting here today under oath that Warren Taylor changed the way he was doing his job because of Scott Jackson? A. I do, because I worked with him and it was very notable. Q. Okay. Do you have any specific information sitting here today, sitting here today under oath, that Warren Taylor didn't do something as a result of his job because of Scott Jackson? MS. KEMP: Object to form. Go ahead. BY THE WITNESS: A. I don't have anything like that, but -- no, I don't. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 BY MR. SAGAL: Q. And you say it appeared to you, right? A. (Nods head up and down.) Q. That was your belief? A. Uh-huh. Q. Did you report your observations of Warren Taylor to anybody? A. I think I talked to Sergeant Dooley a little bit. Q. Okay. Did you write a report about it? A. No. Q. What did you talk with Dooley about? A. I don't recall exactly, but it was probably something like: What's happened to Warren? He ain't doing anything. He used to be a pretty good officer. Something like that, you know. Q. Did you talk to Warren Taylor about it? A. No. Q. Did Dooley talk to Warren Taylor about it? MS. KEMP: Object to form. BY THE WITNESS: A. I don't know. BY MR. SAGAL: Q. Do you know if Dooley wrote a report about it? MS. KEMP: Object to form. BY THE WITNESS: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 A. I don't know. BY MR. SAGAL: Q. Do you know if Warren Taylor is still with the Sheriff's Office? A. I do know that. Q. What's the answer? A. No. Q. Why not? MS. KEMP: Object to form and foundation. Go ahead. BY THE WITNESS: A. I don't know. BY MR. SAGAL: Q. Other than your unsubstantiated belief that Warren Taylor somehow stopped doing his job because of Scott Jackson, do you have any other actual information that someone within the Sheriff's Office did not do their job because of Scott Jackson? MS. KEMP: Object to form, you can answer. BY THE WITNESS: A. Can you repeat that. MR. SAGAL: Debbie, can you read that back, please. (COURT REPORTER read back as directed.) BY THE WITNESS: A. That's like a two-part thing, isn't it? Because you threw in the unsubstantiated. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-7 Filed 07/20/16 USDC Colorado Page 4 of 5 33 BY MR. SAGAL: Q. Uh-huh. A. Okay. You know, I don't have those records and all that, but, you know, I got a pretty good gut feeling which I would say would substantiate me listening and knowing what was going on with Warren Taylor, okay? So as far as anyone else? No. Q. So your gut feeling about Warren Taylor wasn't based on anything you actually talked to Warren Taylor about; right? A. I didn't talk to Warren Taylor about it. Q. All right. And no one else did, to your knowledge; right? A. Not to my knowledge. Q. And so was there a point in time where you complained to anyone within the Sheriff's Office about Scott Jackson? A. I don't recall. Q. When did Warren Taylor leave the Sheriff's Office? MS. KEMP: Object to foundation. Go ahead. BY THE WITNESS: A. I'm not sure. BY MR. SAGAL: Q. If Scott Jackson had not been terminated would you have continued to work with him? MS. KEMP: Object to form. Go ahead. BY THE WITNESS: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 A. He -- MS. KEMP: I -- go ahead. BY THE WITNESS: A. Repeat that question one more time. BY MR. SAGAL: Q. If Scott Jackson was not terminated from the Sheriff's Office would you have continued to work with him? MS. KEMP: If he had been a patrol lieutenant? BY THE WITNESS: A. As a patrol lieutenant? MS. KEMP: I'm just confused about if you're asking if he won the election or if he just continued as a patrol lieutenant as was. MR. SAGAL: In light of the -- okay. MS. KEMP: Sorry. MR. SAGAL: That's okay. BY MR. SAGAL: Q. In light of the election result, Sheriff Besecker continued on as sheriff, right? A. Uh-huh. Q. Scott Jackson, at least for a period of time, continued on as patrol lieutenant; correct? A. Correct. Q. If he was not terminated as patrol lieutenant would you have continued to work with him? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 A. Yes. MR. SAGAL: Thank you for the clarification. MS. KEMP: Sure. BY MR. SAGAL: Q. Same question. Same line of questioning. Sheriff Besecker wins, Scott Jackson stays on as patrol lieutenant and is not terminated, would you have continued to go on calls with him? A. Yes. Q. Would you have continued to do your duties, the job assignments that were assigned to you? A. Yes. Q. Would you have continued to train him in defensive techniques classes? A. Yes. MR. SAGAL: Let's take a break for a second. MS. KEMP: Sure. (SHORT BREAK TAKEN.) BY MR. SAGAL: Q. Were you involved in any of the disciplinary issues involving Warren Taylor? A. No. Q. Are you aware of any disciplinary issues involving Warren Taylor? A. No. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 Q. Are you aware of why he left the Sheriff's Office? MS. KEMP: Object to form. Asked and answered. BY THE WITNESS: A. No. MR. SAGAL: I don't have any further questions. MS. KEMP: Okay. I don't have any questions. THE WITNESS: And I don't have any questions. MS. KEMP: Well, that's good. (DEPOSITION CONCLUDED.) * * * 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-01182-JLK Document 42-7 Filed 07/20/16 USDC Colorado Page 5 of 5 Case 1:15-cv-01182-JLK Document 42-8 Filed 07/20/16 USDC Colorado Page 1 of 2 Case 1:15-cv-01182-JLK Document 42-8 Filed 07/20/16 USDC Colorado Page 2 of 2 Case 1:15-cv-01182-JLK Document 42-9 Filed 07/20/16 USDC Colorado Page 1 of 2 Case 1:15-cv-01182-JLK Document 42-9 Filed 07/20/16 USDC Colorado Page 2 of 2 Case 1:15-cv-01182-JLK Document 42-10 Filed 07/20/16 USDC Colorado Page 1 of 2 Case 1:15-cv-01182-JLK Document 42-10 Filed 07/20/16 USDC Colorado Page 2 of 2