[00:00:00] Speaker 00:
I just wanted to publicly, on behalf of the panel and the court, thank the Court of International Trade and its Chief Judge Stansu for hosting our argument this morning.

[00:00:11] Speaker 00:
This is a first for our court.

[00:00:13] Speaker 00:
We've sat in New York before, but I believe never at this particular courtroom.

[00:00:17] Speaker 00:
So we're very pleased to be there and we thank them very much.

[00:00:20] Speaker 00:
The first case for argument this morning is 16-2300.

[00:00:26] Speaker 02:
a lab versus dvd i'm not mispronouncing the name of your client mister love please proceed with it

[00:00:54] Speaker 02:
the center in Spokane, Washington.

[00:00:58] Speaker 02:
Mr. O'Rourke appealed essentially based on the fact that he believes there was a lack of substantial evidence and also the search was not reasonable.

[00:01:11] Speaker 02:
Essentially what you have here is a

[00:01:14] Speaker 02:
the hearing that was held in Washington in October of 2015.

[00:01:21] Speaker 02:
Initially then, after that, after Mr. Olay, after some of the charges were sustained on the board.

[00:01:27] Speaker 02:
Mr. Olay?

[00:01:28] Speaker 00:
Well, let me interrupt you there.

[00:01:30] Speaker 00:
The problem, it seems to me, the difficult hurdle you have in this case, is not only do we have substantial evidence review, but we've got a series of credibility determinations made by the administrative judge

[00:01:43] Speaker 00:
which in many circumstances are virtually unreviewable.

[00:01:49] Speaker 00:
So you've got the testimony of some of the witnesses, including Officer Bright.

[00:01:55] Speaker 00:
How do you get past that hurdle in reversing the AJ's findings and conclusions?

[00:02:01] Speaker 02:
We would ask the court to seriously consider the decision of Chauvin v. Department of State, a 38M3, 563566, which essentially states for sound reasons based on the records works contrary.

[00:02:16] Speaker 02:
yeah we're having a hard time hearing sound reasons based on the record for its contrary evaluation of the evidence essentially what you have here is you have on the specifications of the charge and falsification the first three essentially what you have is you have the testimony of a single officer, Officer Brighton

[00:02:35] Speaker 02:
who, based on the evidence or lack of evidence, was not testifying for personal knowledge.

[00:02:41] Speaker 02:
He was making assumptions.

[00:02:43] Speaker 02:
And the court should have taken that, the ALJ should have taken that into consideration.

[00:02:48] Speaker 03:
Was there any record in the, or any evidence in the record that Mr. Lough actually swapped keys with Officer Huffman-Parent on any of the relevant days?

[00:03:03] Speaker 02:
His explanation was that it was done.

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That it was a practice.

[00:03:15] Speaker 03:
Was there any evidence in the record that he actually did it?

[00:03:19] Speaker 02:
There wasn't any evidence in the record that he specifically set up that date.

[00:03:23] Speaker 02:
He recalled swapping keys.

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But there was negative evidence.

[00:03:29] Speaker 02:
There was also a lack of evidence from the agency of having Officer Huffman-Parrant corroborate what Officer Brighton had said.

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This is a very large campus, Officer Brighton admitted on cross-examination.

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So you have a lack of evidence on one side, and you have evidence which you say is questionable on the other side.

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But given that the trier of fact

[00:03:55] Speaker 03:
is observing those two things, something that you say, well, it should have been corroborated, and something where there's absolutely no testimony the other way, why isn't that enough?

[00:04:06] Speaker 02:
Well, I don't think it's enough, because if you look at evidence rule 602, this is a he said, he said, with no corroborated testimony from the other officer that they could have elicited.

[00:04:16] Speaker 04:
So doesn't it come down to an issue of credibility at that point?

[00:04:20] Speaker 04:
Who's telling the truth?

[00:04:22] Speaker 04:
You got to, he says, she says.

[00:04:23] Speaker 02:
It comes down to an issue of credibility, but again, I understand.

[00:04:26] Speaker 04:
We can't, we, this, going back to Judge Apros, um, question, we can't review the issues of credibility.

[00:04:35] Speaker 02:
But under Chavez, you can still reverse if what was assessed as far as credibility is simply contrary to the evidence.

[00:04:45] Speaker 04:
Wasn't there some video showing that the squad car never moved from position during the time that he claimed he was out on patrol?

[00:04:53] Speaker 02:
There is evidence according to what Mr. Bright said that he claimed that he saw.

[00:04:57] Speaker 02:
But the acting Chief Kinsfather, and this is very important because this entire case

[00:05:02] Speaker 02:
filled with the spoilage of evidence, evidence that was lost, evidence that the agency relied upon, that the agency at the hearing, the Acting Chief Kinsfather, even admitted in the record, and this is at Appendix 130 and Appendix 131 of the record, he admitted that the critical documents were lost, he admitted that when they reviewed the video, he and Lieutenant Voltaire, they couldn't make out anything.

[00:05:27] Speaker 02:
and that that video then was later sent to HR, which they were supposed to produce and have part of the evidentiary file, and that was lost.

[00:05:35] Speaker 02:
And at the hearing, Sergeant Kim's father, when asked the question whether there were serious issues, asked whether Corporal Oleg had ever falsified any information.

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He acknowledged that there were serious issues on that.

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As far as falsifications, he acknowledged that critical documents were lost, and the agency had the burden to prove.

[00:05:56] Speaker 02:
So based on that testimony, essentially what you have is you have one officer write, but then his own acting chief is contradicting his assessment of that video, which, again, is lost.

[00:06:11] Speaker 03:
So what you're saying is there's contradictory evidence.

[00:06:14] Speaker 02:
There's contradictory evidence, and the agency has the burden of proof.

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And the trier effect is the opportunity to weigh

[00:06:21] Speaker 02:
the evidence you're relying very heavily on that opinion what is the

[00:06:34] Speaker 00:
What is the legal premise of that decision?

[00:06:37] Speaker 00:
What do you read the rule of that case to be?

[00:06:40] Speaker 02:
What I read the rule of the case to be is that sometimes you can have a situation where, you know, someone sees a light and they think it's red, but the evidence is so contrary to what that person has evaluated that it simply makes no sense when you look at the totality of the evidence in the case, especially if you take into consideration the agency having to work with it.

[00:07:02] Speaker 00:
So you're asking us to glob those facts onto the facts of this case and what if there's daylight?

[00:07:10] Speaker 00:
I mean unless the two sets of facts are identical I don't see why that precedent, you're using that precedent as if we're somehow compelled by that case.

[00:07:18] Speaker 02:
to rule in one way in our case, and I'm not saying... When you take Chavez, and then you look at the record, the entire record of this case, and the fact that Officer Bright was testifying from assumption and not personal models, the fact that the other officer did not corroborate what Officer Bright was saying, and then most importantly, gives violation of evidence.

[00:07:36] Speaker 02:
You've got the acting chief, who, by the way, there was never any investigation that was done in this case.

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Neither one of those officers were ever going to be put on the roll, you know, neither one of them was ever going to be.

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And you have the acting chief, under oath, saying that there are serious issues whether, whether, uh, Corporal Lola Lake ever entered any false information through the battery agenda.

[00:08:00] Speaker 02:
On the issue having to do with the sleeping on duty, Officer Oley acknowledged, based on the nature of the shift, the fact that it's a night shift, that there may have been times that he had dozed off.

[00:08:15] Speaker 02:
The record is also clear, though, that at no time did he, in this break room, which, by the way, is a break room that officers use, it's not open to the public, the facility at night is entirely closed,

[00:08:28] Speaker 02:
And this incident of sleeping on duty, the other officers were in there when that occurred.

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That entire place is locked.

[00:08:36] Speaker 02:
There's no evidence at all that by dozing off on a couple of occasions, which he acknowledged, did he endanger either persons or property.

[00:08:44] Speaker 03:
Couple means two?

[00:08:46] Speaker 03:
Excuse me?

[00:08:46] Speaker 03:
I said a couple means two?

[00:08:50] Speaker 03:
Couple means two.

[00:08:51] Speaker 03:
Two occasions?

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because I thought it was more.

[00:08:54] Speaker 02:
Well, there was about three occasions where they were sleeping on duty.

[00:09:00] Speaker 02:
He acknowledged on at least two out of the three that yes, it looks like he was dozing off based on the cell phone pictures that they had taken.

[00:09:08] Speaker 02:
The important point though is that the agency acknowledged at the hearing, it's in the record that other officers had also engaged in that behavior and that they had not been removed.

[00:09:20] Speaker 02:
The important point, looking at downing

[00:09:22] Speaker 02:
American Citizen Protection Board cases is that without the lack of evidence as far as endangering persons or property, the penalty of removal simply was not reasonable.

[00:09:36] Speaker 00:
The other specification... Oh, so there's a rule that you're not allowed to sleep on the job and then you say that's only enforceable or are you saying only enforceable with the penalty of removal?

[00:09:50] Speaker 00:
if there is some negative consequence that results.

[00:09:53] Speaker 02:
When you look at the case law and it talks about there has to be a nexus to support a removal of sleeping on duty that somehow that as a result, that consequence of the behavior resulted in danger to either persons or property.

[00:10:10] Speaker 02:
And the agency acknowledges and the board acknowledges that that was not an issue.

[00:10:17] Speaker 00:
So you can't have a rule that says

[00:10:20] Speaker 00:
you can't sleep on the job and you can't enforce that rule unless something heaven forbid happens and so therefore you say this caused that.

[00:10:30] Speaker 02:
You can enforce the rule.

[00:10:32] Speaker 02:
I didn't mean to say that, Your Honor.

[00:10:34] Speaker 02:
What I mean to say is that as far as going to a penalty of removal as opposed to a lesser penalty, you have to have that nexus there.

[00:10:43] Speaker 02:
And that's another part of our argument.

[00:10:46] Speaker 02:
Not only is what we're all like saying there's a lack of substantial evidence, but also the penalty of removal if you look at the Douglas Factors was sent in for no reason.

[00:10:55] Speaker 02:
I would like to preserve some of my time.

[00:10:57] Speaker 00:
Judge Raymond, it's your turn.

[00:10:59] Speaker 00:
Okay.

[00:10:59] Speaker 00:
Why don't we hear from the government.

[00:11:00] Speaker 00:
Thank you.

[00:11:18] Speaker 01:
The board properly weighed evidence and made credibility determinations before sustaining the charges of inappropriate behavior and sleeping on duty.

[00:11:31] Speaker 01:
Furthermore, the VA's decision to remove Mr. Oleg was reasonable.

[00:11:34] Speaker 01:
Now, in regards to the evidence that the administrative judge considered for the charges of inappropriate behavior, the administrative judge considered the testimony of Officer Bright, and she also acknowledged that Mr. O'Lake had noted that he believes there was a credibility issue with this particular witness.

[00:11:56] Speaker 04:
the removal was unreasonable because there's no evidence of any type of endangerment to property or to people.

[00:12:05] Speaker 01:
Yes, Your Honor.

[00:12:06] Speaker 01:
Now, the Downing case that Mr. Oleg's counsel referenced did note that if there was a first offense under the VHP or penalties for sleeping on duty, then that may not necessarily be sufficient if there was not any sort of endangerment.

[00:12:20] Speaker 01:
And so in the Downing case, there was the petitioner had to prosecute me.

[00:12:25] Speaker 04:
Do you have to have a showing of endangerment?

[00:12:29] Speaker 04:
Wouldn't sleeping on the job also be falsification of information?

[00:12:33] Speaker 04:
that you worked X amount of hours, but yet you slept less, you know, less than that or you slept part of that?

[00:12:40] Speaker 01:
Well, I think the falsification charge has a different standard in terms of what the agency needs to show for conduct evidence.

[00:12:48] Speaker 03:
Take counsel, move that mic a little closer.

[00:12:50] Speaker 01:
Oh, I'm sorry.

[00:12:52] Speaker 01:
There's an intent component to the falsification, but the issue here in terms of the removal and the... You need to move the mic over a little more.

[00:13:00] Speaker 00:
I'm so sorry, can you do that now?

[00:13:02] Speaker 00:
Yes, thank you.

[00:13:03] Speaker 01:
The issue here in terms of why Downey is distinguishable is that in the Downey case there was one count of sleeping on duty.

[00:13:12] Speaker 01:
Here the VA made very clear in its Douglas Factor analysis that's in the record that the agency was also considering a number of other charges, most importantly the seriousness of the falsification and the fact that there were multiple counts that, taken together, they removed the appropriate

[00:13:27] Speaker 00:
So you're acknowledging if it was exclusively the sleeping on the job twice with no consequences than looking at the other kind of cases the agency has had.

[00:13:39] Speaker 00:
Perhaps under the Douglas factors, that would not be sufficient for removal.

[00:13:42] Speaker 01:
It potentially would not be sufficient, Your Honor.

[00:13:44] Speaker 01:
The court would likely need to remand the case back to the agency to consider whether or not, for example, whether or not there were other similarly situated employees.

[00:13:54] Speaker 01:
And Mr. Oleg had offered evidence before the board that there were several other employees that were caught sleeping on duty but only were seeking reprimand.

[00:14:02] Speaker 01:
And the board and the agency distinguished those individuals because they did not have other serious allegations of misconduct.

[00:14:08] Speaker 01:
So if it was just sleeping on duty, there would likely need to be a remand.

[00:14:11] Speaker 01:
However, the agency made clear that when it was imposing the penalty, it was facing it.

[00:14:16] Speaker 01:
In large part, no falsification.

[00:14:19] Speaker 03:
That's pure speculation because if it was just sleeping on duty, it might not have gotten anywhere until it got to three, which you allege, or four, or whatever.

[00:14:31] Speaker 03:
But at some point, sleeping on duty has to be enough.

[00:14:34] Speaker 01:
That's correct, Your Honor.

[00:14:36] Speaker 01:
And my only point was that there potentially needs to be a remand just to reweigh the factors and the guidelines.

[00:14:42] Speaker 04:
Well, under the VA table of penalties, it does provide the guidelines right for situations.

[00:14:48] Speaker 04:
And on the second offense of sleeping on duty,

[00:14:51] Speaker 04:
It's removal.

[00:14:54] Speaker 04:
There's no other penalty, just flat out removal.

[00:14:57] Speaker 01:
That's correct, John.

[00:14:58] Speaker 04:
Other than the incidents that we're dealing with in this instance, were there other prior incidents of sleeping on duty that he had been reprimanded for?

[00:15:07] Speaker 01:
Not to my knowledge, based on the record you're on, this was the first disciplinary misconduct that took place within the force.

[00:15:13] Speaker 04:
Do you look at all the instances as disciplinary misconduct?

[00:15:19] Speaker 04:
in this situation or does there have to be higher instances?

[00:15:23] Speaker 04:
Because I'm looking at the table now and for the first offense it says seven days or removal.

[00:15:29] Speaker 04:
So he could have been removed at this point.

[00:15:33] Speaker 04:
What's your position?

[00:15:34] Speaker 04:
Is this first offense or second offense?

[00:15:37] Speaker 01:
Well, it was three separate offenses because they were three separate days and so there would be three offenses.

[00:15:42] Speaker 04:
That's what I was asking.

[00:15:43] Speaker 04:
So every day is a

[00:15:45] Speaker 01:
Yes, that's correct.

[00:15:46] Speaker 04:
But he was not previously reprimanded for that first day.

[00:15:49] Speaker 04:
They're all treated in terms of penalty as one in this case.

[00:15:53] Speaker 01:
That's true, Your Honor.

[00:15:54] Speaker 03:
They were pretty close together in time, weren't they?

[00:15:56] Speaker 01:
They were.

[00:15:56] Speaker 01:
They were.

[00:15:58] Speaker 01:
All of the misconduct, both the falsification and also the sleeping on duty, took place over the course of a single week.

[00:16:04] Speaker 01:
And so after he was found sleeping on duty by his fellow officers, they both provided written statements to the VA within a few days of the sleeping on duty.

[00:16:15] Speaker 01:
And so it was all sort of considered together because there was such a tight time frame.

[00:16:20] Speaker 00:
So doesn't that suggest something other than a penalty of, I mean this guy had a pretty long and distinguished record and when you have multiple occurrences but all occurring within a short period of time, does that not suggest that maybe some sort of counseling or something is going awry that would not necessarily compel a penalty of removal?

[00:16:41] Speaker 01:
It does, Your Honor.

[00:16:42] Speaker 01:
Under the facts of this particular case, the agency looked at a number of aggravating and mitigating factors such as his prior history, but found that ultimately the seriousness of the offense was really what was important here as a VA officer.

[00:16:57] Speaker 01:
He's a federal law enforcement officer.

[00:16:59] Speaker 01:
He can be called as a witness on behalf of the United States.

[00:17:02] Speaker 01:
His integrity is incredibly important.

[00:17:04] Speaker 01:
And the fact that there was falsification of official documents and also that the falsification centered on whether or not he was conducting security patrols over the VA facility.

[00:17:14] Speaker 01:
The fact that he was not conducting these patrols could put VA personnel, patients, and members of the public at risk.

[00:17:20] Speaker 04:
But he really was removed for sleeping on duty.

[00:17:23] Speaker 04:
I mean, he was actually removed for sleeping on duty.

[00:17:30] Speaker 04:
And other aggravating circumstances were taken into account.

[00:17:34] Speaker 04:
But when I look at the table of penalties, it says, item 17, sleeping on duty.

[00:17:39] Speaker 04:
And then B, where the safety of patients, beneficiaries, members, employees, or property may be endangered.

[00:17:48] Speaker 04:
And here there's no proof of that.

[00:17:50] Speaker 01:
That's correct.

[00:17:50] Speaker 01:
And he was also moved for declassification.

[00:17:53] Speaker 01:
And in the agency's Douglas Factor analysis, they specifically state that given the combination of offenses and the egregiousness of the falsification of official records, they felt renewables appropriate.

[00:18:05] Speaker 01:
So it was for more than just sleeping on duty.

[00:18:09] Speaker 01:
I've got another question.

[00:18:12] Speaker 00:
Sorry.

[00:18:14] Speaker 00:
You seem to argue that multiple officers reported that he never had keys.

[00:18:20] Speaker 00:
But as I think, as I review the record, it's just one officer, I guess it was Officer Bright, that testified about that.

[00:18:27] Speaker 00:
But when you read through Bright's testimony, there's really no foundation laid as to

[00:18:36] Speaker 00:
the basis for his testimony.

[00:18:38] Speaker 00:
Am I wrong about that?

[00:18:39] Speaker 00:
Do you understand what I mean about his testimony?

[00:18:41] Speaker 01:
I do, Your Honor.

[00:18:42] Speaker 01:
There's a couple of things I want to point out on the record in regards to that.

[00:18:46] Speaker 01:
One, he did say on several occasions that he was confident and sure that there was no swapping of keys that night, but also there was a written statement that he provided to the agency earlier that's on the record as well, and in that statement he noted that both he and

[00:19:00] Speaker 01:
Huffman-Parrant were reviewing, they were in the system and they saw a number of injuries pop up showing that Officer Leigh had, or statement Officer Leigh had conducted searches and that they were suspicious of that.

[00:19:14] Speaker 01:
And now that wasn't flushed out before the administrative judge, but there were no further questions on either, either from Mr. Leigh's counsel or from the DA's counsel

[00:19:23] Speaker 00:
Yeah, but who's got the burden to flush those things out?

[00:19:26] Speaker 00:
I mean, you've got a witness, you're relying on his testimony, and doesn't the foundation have to be laid by you all?

[00:19:31] Speaker 00:
I know what you're saying, and I understand that they could have come back on cross and tried to undermine him or asked about the foundation, but that's not their burden, it's yours, isn't it?

[00:19:42] Speaker 01:
Well, the burden is that the agency doesn't need to prove quite 100 evidence, and that's a reasonableness standard, and here they did offer testimony from an officer stating that there was no swapping of keys, that was not refuted.

[00:19:54] Speaker 01:
Mr. Oleg also had an opportunity in writing to refute that testimony after receiving the notice of proposed removal, and he did not at any point in time actually say,

[00:20:03] Speaker 01:
No, that's not correct.

[00:20:05] Speaker 01:
I did actually swap keys with one of the officers and did conduct the controls.

[00:20:09] Speaker 01:
And so in that sense, the agency didn't need its work to show that it was preponderant evidence supporting the falsification.

[00:20:15] Speaker 00:
And what about your friend's argument with respect to spoliation and the absence of evidence in the missing records?

[00:20:21] Speaker 00:
What impact, if any, does that have on the analysis?

[00:20:24] Speaker 01:
There's little impact in this particular case, Your Honor.

[00:20:27] Speaker 01:
He's referring to, I believe, specification number seven.

[00:20:30] Speaker 01:
On a separate instance, he was also found to be falsifying records.

[00:20:34] Speaker 01:
And there, Officer Bright testified that he

[00:20:38] Speaker 01:
He physically observed Mr. O'Lake at a time that he was supposed to be conducting a patrol, which prompted him to review video surveillance.

[00:20:46] Speaker 01:
And yes, while the video surveillance was ultimately destroyed, he testified before the administrative judge that he had observed that footage.

[00:20:53] Speaker 01:
And in addition to that, Sergeant Kint's father, his supervisor, also offered testimony that's noted in page 30 of the Joint Appendix that he also observed the footage.

[00:21:05] Speaker 01:
So while, yes, the footage was destroyed, and it's unclear what exactly happened to it, there still was direct testimony from police officers indicating that they had seen the footage and that the police car did not move.

[00:21:21] Speaker 03:
In the reply

[00:21:23] Speaker 03:
questioning of your opposing counsel, I'm going to ask if evidence comes in without objection, whether the trier fact can consider it, even though it might be objectionable.

[00:21:36] Speaker 03:
So I want you to respond to that now, since you won't have a chance later.

[00:21:41] Speaker 01:
Yes, Your Honor.

[00:21:43] Speaker 01:
I would note that the evidence can be considered.

[00:21:45] Speaker 01:
There was no objection lodged before the administrative judge, and there was no sort of objection lodged during the discovery process before the board meeting on public hearings.

[00:21:56] Speaker 01:
The Court has no further questions.

[00:21:58] Speaker 00:
Thank you.

[00:22:06] Speaker 03:
Thank you.

[00:22:06] Speaker 03:
Mr. Love, you know my first question.

[00:22:09] Speaker 02:
While I was there for the hearing, Your Honor, we had the opportunity to cross-examine the witnesses.

[00:22:20] Speaker 03:
I'm sorry, can you talk into the mic?

[00:22:26] Speaker 03:
So the question was, can the Trier effect then consider that, since it's not deemed objectionable?

[00:22:34] Speaker 02:
Well, I guess they can consider it, but what you're dealing with, again, is evidence of essentially assumption, again, and speculation.

[00:22:45] Speaker 03:
So you're talking about what my law professor used to say in evidence that goes to weight and not admissibility.

[00:22:51] Speaker 02:
Correct.

[00:22:52] Speaker 02:
But, again, this case

[00:22:56] Speaker 02:
As the court was raising its questions to counsel for the government, there was no foundation that was laid for Officer Rice testimony.

[00:23:07] Speaker 02:
He was their only witness.

[00:23:09] Speaker 02:
That was the witnesses they were relying on.

[00:23:12] Speaker 03:
The foundation is an objection as to admissibility.

[00:23:17] Speaker 03:
You've already conceded an invincibility.

[00:23:19] Speaker 02:
That's correct, but it goes to our argument of lack of substantial evidence.

[00:23:23] Speaker 02:
I mean, they had an opportunity to have Officer Huffman's parent corroborate that either in a sworn statement or in his testimony, and that was never done.

[00:23:34] Speaker 02:
And again, I come back to the fact that as you look at it... What would corroboration have done in your view?

[00:23:42] Speaker 04:
I mean, why do you keep going back to that?

[00:23:44] Speaker 02:
Because we're talking about tipping of the scales.

[00:23:47] Speaker 04:
No, no, we're talking about substantial evidence.

[00:23:49] Speaker 04:
There are no scales there.

[00:23:51] Speaker 04:
The question is whether the evidence is sufficient.

[00:23:56] Speaker 04:
We're not tipping the scales.

[00:23:57] Speaker 04:
We're not measuring.

[00:23:59] Speaker 04:
We're not weighing evidence.

[00:24:01] Speaker 04:
That's not substantial evidence.

[00:24:03] Speaker 02:
Well, if you take it from the context of, again, the agency had the performance of the evidence to prove these charges.

[00:24:11] Speaker 02:
And by having a single witness who then was not even corroborated by another officer and then was even at his own assessments of the evidence,

[00:24:24] Speaker 02:
not supported by the acting chief.

[00:24:27] Speaker 02:
As far as the video goes, in appendix 129 to 131 of acting chief Kim's father's testimony, both he and officer Lopez essentially admitted that the video was of such poor quality, it was of no use, they couldn't see anything.

[00:24:46] Speaker 02:
And then of course, the video is then subsequently destroyed, efforts given to Lee Charm.

[00:24:52] Speaker 02:
So what you're left with, as far as these specifications of alleged falsification, you've got an officer who had no prior history of issues about his honesty or integrity.

[00:25:04] Speaker 03:
Did you have a sanctions motion?

[00:25:07] Speaker 02:
I did not bring a sanctions motion.

[00:25:09] Speaker 03:
That is, under the discovery rules, if there is spoliation of evidence, you can make a motion to have something taken as an admitted fact.

[00:25:18] Speaker 02:
Yeah, I had done that before in the context of an injuried situation, but we made the decision that we weren't going to do that since we'd been recruited from the Ministry of Law.

[00:25:32] Speaker 02:
But if you look at the record, appendix 129 to 131, the testimony of Acting Chief Ginsburg, it reveals simply the lack of substantial evidence as far as the falsification.

[00:25:48] Speaker 02:
You've got you've got specifications where he's accused on three occasions of entering

[00:25:53] Speaker 02:
false information into the BAP DOJ.

[00:25:56] Speaker 02:
But that's based on evidence only from Bright that is making the assumption that on a Wednesday when there's three officers on a very large campus that there's no way that Hank Olay and Officer Huffman Bright ever saw Keith.

[00:26:10] Speaker 02:
But he admits, he admits in his own testimony that that could have happened.

[00:26:14] Speaker 02:
He doesn't know because the officers are not, the officers are not joined together.

[00:26:18] Speaker 02:
They don't control the three of them together.

[00:26:21] Speaker 02:
And then the last specification on falsification charges is the video, which was destroyed and Acting Chief Kinsfather admitted himself that it was of such poor quality it was of no use.

[00:26:32] Speaker 02:
So he contradicts the single officer right that the agency is relying on for the removal under the falsification.

[00:26:42] Speaker 03:
How does that contradict?

[00:26:44] Speaker 02:
How it contradicts is that Officer Bright says he viewed the video and that the car never moved at that time.

[00:26:51] Speaker 02:
I think Chief Kent's father reviews the video and he says, well, it was such a poor quality we couldn't tell what was on it.

[00:26:58] Speaker 02:
And the other important point is there was no investigation.

[00:27:01] Speaker 02:
Neither one of these officers were ever interviewed.

[00:27:03] Speaker 02:
And then when they went to make their decision as far on the penalty, they never considered progressive discipline, but yet progressive discipline was their practice.

[00:27:12] Speaker 02:
How can you possibly prevail on that argument?

[00:27:24] Speaker 00:
Even though they said they did, they didn't.

[00:27:27] Speaker 00:
They said they did and they discussed it and they were under oath.

[00:27:31] Speaker 00:
then if your case rests on our believing you an attorney argument versus what was said in the record, that's a pretty high mountain to climb.

[00:27:40] Speaker 02:
Well, it's in the record that the medical director, Ronald Johnson, testified that the practice was progressive discipline and they did not engage in progressive discipline.

[00:27:50] Speaker 00:
Thank you.

[00:27:51] Speaker 00:
We thank both sides and the case is submitted.