Transcript of the Testimony of Brian Head (Continued)

Date: November 7, 2013 Volume: I Case: In Re: Joplin Critical Investigation

Printed On: November 13, 2013

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Brian Head (Continued)

In Re:

Joplin Critical Investigation

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IN RE:

JOPLIN CRITICAL INVESTIGATION

CONTINUED SWORN STATEMENT OF

BRIAN HEAD

Taken on Thursday, November 7, 2013, from 11:51 a.m. to

12:13

p.m., at the law offices of Juddson H. McPherson, LLC, 626 S. Byers, in the City of Joplin, County of Jasper, State of Missouri, before SHARON K. ROGERS, C.C.R.650, a Certified Court Reporter and a Notary Public within and for the County of Jasper, and State of Missouri.

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Joplin Critical Investigation

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APPEARANCES

MR. THOMAS E. LORAINE Loraine & Associates, LLC 4075 Osage Beach Pkwy., Suite 300 Osage Beach, MO 65065

tellaw@loraineandassociates.com

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S T I P U L A T I O N

IT IS HEREBY STIPULATED that this Sworn Statement may be taken by steno-mask type recording by SHARON K. ROGERS, a Certified Court Reporter, and afterwards reduced into typewriting. It is further stipulated that the signature of the witness is hereby waived, and that said Sworn Statement of said witness shall be of the same force and effect as though said witness had read and signed Sworn Statement.

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I N D E X

Page/Line

DIRECT EXAMINATION BY MR. LORAINE

5-2

E X H I B I T S

(sic) - typed as spoken (ph.) - phonetic

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Page 5 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 A. Q. A. Q. A. Q. A. Q. A. Q. BRIAN HEAD DIRECT EXAMINATION BY MR. LORAINE: Q. Sir, I want to remind you that you're still under oath. Do you agree to that? Yes, sir. And would you state your name? Brian Head. You're City Attorney? That's correct. I already interviewed you concerning this investigation that we've had so far, is that right? Yes. We've talked about a lot of issues. I want

to go into one additional issue that has troubled me during some of these interviews. It's come to my attention that City Manager Rohr may, in fact, be difficult to deal with. I know from our earlier discussion we talked about the fact that he excluded you from some early negotiations with Wallace-Bajjali, is that true? Yes. And from what period of time do you think those exclusions occurred?

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Joplin Critical Investigation

Page 6 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 Q. Q. A. A. A. Q. A. Q. A. Q. A. Q. Oh, probably the first couple of months. So the first months of an 80 million dollar contract the City Attorney was excluded by intent by the City Manager? That was my interpretation. Well, he told me when I talked with him that you were negative on sticking matters, whatever that means. I'm not sure I know what that means either. So I guess he dealt with sticking matters for the first two months. conclusion. That would be my

But in any case you were

purposely excluded? I believe so. Had you at any time requested to be in those meetings? I did make a request, not directly to him, I made a request of my bosses, the Mayor and the Mayor Pro Tem. Was that during these two months? Toward the end of the two months I made that request and made my complaints to those members of the Council. And you're an independent office from the City Manager?

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Page 7 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 Q. A. Q. A. A. Q. That's correct. Can you think of any good reason why the City Manager would exclude the City Attorney from possibly an 80 million dollar contract? I don't understand it. I consider having

legal counsel present when you're making these momentous decisions if nothing else to cover your own back side very worthwhile, especially when the person is available and in the building every day, full-time legal counsel. was. You must have dealt directly with the City Manager about these thoughts about being included during that two month period, didn't you? We talked a few times about it and never really seemed like I got anywhere because I would see meetings occurring that I wasn't invited to. Didn't know what they were, And I don't know what the reason

didn't know why they were, but it was clear that we had the master developer, the manager, and other members of staff sitting in on meetings. That you were not invited to?

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Page 8 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 A. Q. A. A. Q. That I was not invited to. Have you had any experiences with the City Manager where you saw tendencies by the City Manager exhibited that would be threatening or maybe a better word would be intimidating to you personally? I can think of a couple of instances, yes. Explain those for me. Well, the first one, and I'm not sure of the year and the date, the first one was during we had a couple of ice storms, consecutive ice storms, and I don't remember if it was the first or the second ice storm, but some sort of an email had gone out from the Manager's office about something to ensure that we were providing appropriate response to the citizens and the victims of the ice storm. And just thinking I was being nice I

sent out a similar email that said, but also remember that our employees are victims of this ice storm, too, and if we can be flexible with them let's try to do that. I

just thought it seemed like a decent thing to do because most of our employees were impacted as well. In fact, I was at home, I

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Page 9 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 Q. A. didn't have power for seven days or something like that during an ice storm. I was under

my house rewiring something on the furnace so I could plug into a generator and I get a call from the Manager's office saying that he's looking for me and he's hot, wants to talk to me. So I jump back in, went back to

the office, and he was very angry with me and told me that there appeared to be a shadow government operating within City Hall and that it appeared that I was at the head of it. I really didn't even understand what it

was about, why I was being told that I was some sort of threat, I assume, something. didn't understand that. That was one I

instance, but he was very angry. Visibly? Visibly angry, yes, visibly angry. You know,

slamming hand down on the desk kind of angry. Now the second time - now I'm not a shy person and I have a forceful personality and I won't back down to a threat. There was

another meeting, and this was more recently. This was after Wallace-Bajjali started. I don't even remember what the argument And

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Page 10 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 Q. A. started about, but it was in front of a little group of people. It had to do with

what I perceive is just a lack of respect for the office. For your office? For my office. I've never felt like, number

one, he knew how to use full-time legal counsel because he had never had that in any other place he'd been. And number two, was

never understanding that I had a role and a great deal more of my opinion than he felt. And it had to do with some scheduling of meetings and I have a real aggravation with people who demand instead of ask. I think

all it was was the fact that I was being told when this whole series of meetings was going to be instead of a simple email saying are you available for these meetings, this is when we would like to have them. aggravates me and frustrates me. to be a lack of respect issue. That That seems And that's

how the issue started and it escalated into a shouting match, me on one end of the table, he on the other, in front of I know Leslie Haase, I know Gary Box and possibly Bruce

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Page 11 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 Q. A. Q. A. Anderson, and part of it I know was in front of David Wallace as well. Of Wallace-Bajjali? Of Wallace-Bajjali. And we were shouting I complained

down the table at each other.

about the fact that I was not included and I didn't know what was going on and it was difficult for me to do my job. He retorted

that I already knew way more than I should and that had I been a man I would have come to him and talked to him about being excluded back when I went to members of the Council about being excluded, and you know, slammed his hand down on the table a couple of times and at one point did not stand up, but looked like he was going to. Looked like he was going to come after you? Looked like he was coming out of his seat. Now I'm not shrinking violet. Somebody comes

at me like that I don't back down so he could probably make the same statement about me, that he felt threatened. I'm not shrinking violet. I don't know, but If somebody comes

at me like that I'm not just going to back down and run away. That's just not my

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Page 12 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 A. Q. A. Q. personality. I mean the situation was created not by you as I understand it but by him? I went into the meeting irritated because I was being told as opposed to just some simple basic respect of being asked. And I went

into the meeting aggravated and I intended to ask the questions as to why this was happening. You had repeatedly asked him to invite you to these meetings? I had. And it wasn't so much about I was

being asked to the meeting, but instead of being asked I was being told this was when the meetings were going to be and it doesn't matter what else you have on your schedule, this is when the meetings are going to be. mean it felt to me like for a period of time that it was a way to try to pressure me out of going to the meetings because you give them to me on short notice, you don't tell me until a few hours before or maybe the evening before some sort of meeting early the next morning or something like that. It's a way I

to pressure me into not being there because I

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Page 13 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 A. Q. Q. A. A. Q. A. Q. Q. have other things that I've already scheduled to do. Also assuming you may have some preparation as a lawyer for those? Correct. He certainly wasn't being sensitive to those needs, is that true? Yeah, I believe so. Are there other instances where you have witnessed his conduct of slamming doors and things of this nature? I heard the slamming door things a few times, but I don't know that - I mean I've heard that in the hallways. I mean I've heard a

door slam, but I never related it to one thing in particular necessarily. I have

never seen him, I've never really seen him with anyone else, you know, making those kinds of statements or being threatening. I've never really witnessed that except those two instances with me. You're aware of the term hostile work environment, aren't you? Certainly. As a lawyer that's a term of art, I guess,

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Page 14 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 A. Q. A. Q. A. Q. A. but would you think that this is the kind of element that leads to that? I think it certainly can in the right circumstances. Have you heard complaints that would indicate that's developing with this City Manager? I've never heard anybody use those terms. have heard people who indicated they felt like they could not make statements in opposition to his policy or his desires because they had either been threatened to be fired or they thought they would be threatened to be fired. kind of statements. I've heard those I

But as far as a hostile

work environment from a legal term of art I don't know that I've ever heard anyone attempt to use that or I don't know that I'm aware of any facts that would lead me to believe that necessarily exists. If the proposed merger, the charter review goes through, Ms. Hogelin's department would be under the City Manager? Yes. Are you aware of her position on that? Yes.

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Page 15 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 A. Q. A. Q. A. A. Q. Q. Q. A. Q. A. Does she want that? No. Why not? She feels like that if that were to happen that she would be fired immediately. And I

don't know what basis she has for that, but I know that's how she feels. You would understand if the Police Department isn't removed from that I anticipate that same kind of issue might lie in that area, also? Yes, potentially so. And he's gathering departments under him as I understand it? He's gathered some divisions of the Public Works Department under his direct authority. Is that the division that controls the purchase of tires? I believe the central garage does do the purchase of tires. Are you aware of a complaint about the tire company with Goodyear? I have heard rumors on that, although I've never confirmed any of that story. I have

one thing that I'd like to add that I don't

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Page 16 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 A. Q. Q. A. Q. Q. A. think you're aware of. Yes. Within the last year Mrs. Hogelin wasn't the only person who it was proposed to go under the authority of the City Manager. It was

also circulated behind the scenes by Mr. Glaze, Council member, that my office be placed under the authority of the City Manager. All right. I assume that you wouldn't be in

favor of that? Absolutely not. My legal opinion of City

Attorneys working for City Managers is you set yourself up for conflict. You set

yourself up for a true legal conflict very easily. There are cities that do it and

there are places that it works, however there must be some separation so that the attorney is able to recognize precisely who their client is and not have that conflict. I don't know of any specialized legal training that the City Manager has, do you? I'm not aware of any. And if he's never had full-time City Council in any of his job employments before that are

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Page 17 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 Q. A. Q. A. Q. A. Q. A. you certain of that? I'm not certain. That is my belief, but I

can't say that I know that for certain. That's based on you think your conversations with the City Manager? Conversations with him and just simply knowing the size of the previous cities that he had, they were all substantially smaller. Okay. Based on your experience of the last

nine years working with the City Manager would you be able to render your job correctly for the City if you worked under this particular City Manager? No, I could not. In fact, when that was

circulated I told Mr. Glaze very bluntly that the day I was placed under his authority was the day I resigned. Do you think this matter should be brought to the attention of the City Council by my investigation? I have to leave that to you. I have felt for

a long time that there was something amiss with not being included, but I have no concrete facts to determine what those were. Well, let me ask you along those lines, are

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Page 18 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 A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. you aware of the City Parks Director? know who that is? Yes. Who is it? Chris Cotten. Are you aware that he suffered a complaint by his supervisor, Mr. Rohr, for independently seeking the independent ball club, the matter that's presently pending before the City, did you know he got censured by Mr. Rohr on that? I was not aware of that. Who would I investigate? If I wanted to get Do you

ahold of that record who would I call? The Human Resources Director, Dave Allgood. And Mr. Allgood would have the existence of such a record, is that right? He would. Is he under the City Manager's authority? Yes, he is. Now, City Attorney, would you make an effort to procure that because I won't be back here on my behalf. I don't know if there's a way

to eradicate a record, but I want to make sure I get that record before the next visit. Would you be able to do that today?

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Page 19 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 Q. A. Q. A. A. Q. Yes, I will. All right. If I told you the City Public

Works man, Chris Cotton, testified here the difference between the City acquiring someone and running it through Bajjali would be probably 20 to 25 million dollars, would that surprise you? It wouldn't surprise me that it was higher, but that amount is a surprise. That's what he testified. I don't know what

the basis for that was, but it seems to me depending on what I've learned under you, there's been some vestige of secrecy involving the Wallace-Bajjali contract. At

least to your exclusion by the City Manager. I think early on especially there was. And

with regard to this baseball thing I have had no briefing, no involvement in it whatsoever. Didn't know it existed, in fact, until was told that we were going to have a work session on it Monday night. seen any documents on it. I assume that - no, I don't assume. I know I still haven't

that Mr. Cotten told me that he was directed - the reason he was subject to discipline is

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Page 20 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 Q. A. Q. A. A. Q. that it had not been run through Wallace-Bajjali rather than directly through the City. your part? Yes, I believe so. Given the background that you know concerning the secrecy or at least the exclusion of you that troubles me as a lawyer. trouble you? It does. I would see no reason to reprimand Does it Does that raise some awareness on

or otherwise take employment action on an employee for - you know, even if ultimately you felt that you had to follow through with the Wallace-Bajjali contract for that I would be very interested to know what the basis for that reprimand was. And further is the matter that's being brought up is that being brought up through Wallace-Bajjali? I thought it was to the

exclusion of Wallace-Bajjali. I don't know. documents. Well, keep your eye on that because my understanding talking with Cotten was that this proposal was followed through to the I have not yet seen any

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Page 21 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 A. Q. Q. A. A. Q. A. exclusion of Wallace-Bajjali which further heightens my suspicions. The only thing that I have been told was that it came from the Chamber of Commerce. I

haven't heard any Wallace-Bajjali discussion on it at all. And just because if it came from the Chamber or came from Cotten or whatever does Wallace-Bajjali get some kind of a fee associated with it? They would get a fee if it was one of the projects that they had initiated and found for the City. Well, they didn't obviously find this. Right, if the City had a - now they did propose early on some sort of a ball field and that may be what the Manager is relying on. But as far as the use of Joe Becker

Stadium I don't think that was ever proposed as part of their overall redevelopment effort for the City. I think as a City Attorney I'm interested in that aspect of this investigation and I would caution you to be aware of it. Yes, sir.

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Page 22 1 2 3 4 5 6 7 (SWORN STATEMENT CONCLUDED) Q. A. That's all I have, sir. All right. Thank you.

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REPORTER'S CERTIFICATE

STATE OF MISSOURI ss. COUNTY OF JASPER I, SHARON K. ROGERS, Certified Court Reporter in the State of Missouri, do certify that pursuant to the foregoing Stipulation the witness came before me on the 7th day of November, 2013, was duly sworn by me, and was examined. That examination was then taken by me by

steno-mask recording and afterwards transcribed; said Sworn Statement is subscribed by the witness as hereinbefore set out on the day in that behalf aforesaid and is herewith returned. I further certify that I am not counsel, attorney, or relative of either party, or clerk, or stenographer of either party or of the attorney of either party, or otherwise interested in the event of this suit.

________________________ SHARON K. ROGERS, CCR-650

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