Transcript of the Testimony of Daniel Johnson

Date: November 14, 2013 Volume: I Case: In Re: Joplin Critical Investigation

Printed On: November 27, 2013

Holliday Reporting Service, Inc. Phone: 417-358-4078 Fax: 417-451-1114 Email:daholliday@hotmail.com Internet:

Daniel Johnson

In Re:

Joplin Critical Investigation

Page 1

IN RE:

JOPLIN CRITICAL INVESTIGATION

SWORN STATEMENT OF

DANIEL JOHNSON

Taken on Thursday, November 14, 2013, from 4:48 p.m. to 5:30 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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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 AND AGREED 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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Page 4 I N D E X Page/Line DIRECT EXAMINATION BY MR. LORAINE . . . 5-4

E X H I B I T S

Exhibit #A.

6-14

Advice of Rights

Note:

Exhibits in separate binder

(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. DANIEL JOHNSON Having been first duly sworn and examined, testified as follows: DIRECT EXAMINATION BY MR. LORAINE: Q. Sir, do you understand what this Advice of Rights form is? Yes, I did. Basically I'm going to read it to you so you can listen to it again. You are an employee Have you read it?

of the City and by law I've been commissioned to ask you questions and you have to tell me the truth. That's where we're at. "I wish

to advise you that you are being questioned as part of an official investigation by the City of Joplin. You will be asked questions

related and specifically directed to the performance of your official duties of fitness for office. You are entitled to all

the rights and privileges guaranteed by the laws of the Constitution of the State and the Constitution of the United States, including the right not to be compelled to incriminate yourself. I further with to advise you that

if you refuse to testify or to answer questions relating to the performance of your

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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 A. A. Q. A. Q. A. Q. A. Q. A. Q. official duties, you will be subject to department charges, which could result in your dismissal from your official duties. you do answer, these statements may be used against you in relation to subsequent departmental charges, but not in any subsequent criminal proceedings." Basically If

you have criminal immunity, but you have to answer me and answer me truthfully. understand? I do. All right. And you have printed your name, Do you

Daniel Johnson, and you have executed Daniel Johnson on Exhibit #A. That is correct. Mr. Johnson, can you tell me how long you've worked for the City? I started in May of 2005. And what is your position with the City? I'm a Civil Engineer II. What department do you work? Public Works Department. I assume you have Civil Engineer II. head of that department? No, sir. Are you Is that true, sir?

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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 A. Q. A. Q. A. Q. A. Q. Q. A. Q. Have you ever been? No, sir. And you're a graduate from an accredited college and you have an Engineering Degree? Yes, sir. Do you have actually a P.E. stamp or anything? I have a stamp and I have a license. So you passed the exams necessary for professional certification? Yes. Sir, I've been directed to ask you questions about your official duties. It's my

understanding that there was a matter involving the creation of a sewer line that you came up with to save the City substantial money in front of a fire engine building, a new fire engine building. I'm talking about? I believe I do. Then explain the building. And there was a Do you know what

question about whether or not a new piece should be procured or whether or not an engineering design would be sufficient on the existing system. Is that a correct

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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 Q. A. A. A. Q. A. Q. characterization of this problem? That would be correct. And it's my understanding that you performed your engineering responsibilities and came up with a cheaper way to solve the problem? That is correct. And the cheaper way would have been within the standards of your engineering profession or else you wouldn't have suggested it? Yes, the meeting that I suggested the method that I recommended as the engineer in charge of the storm water systems the theme of that meeting was we really don't have enough money to build this fire station at this site, so they looked at me and they said, we have to follow Jack Schaller, the Assistant Director at the time stated, well, Dan, what do we have to do per our standards at this site to take care of storm water? And what he meant

by that to me is if it was a developer building a commercial building there they had to follow certain standards and we would be following the same standards. As the City? As the City.

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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 A. Q. Q. A. Q. A. Q. A. Why not? We have to. Yes. And he said what do we need to do here? Well, I said it's good news. We have an

existing open ditch that runs diagonal across half of the property. That would normally be

a hassle, but we don't even need that area. We don't have to have anything on it and it's already an open channel. Now I think for

maintenance we just put in a concrete bottom in the bottom of the channel, we put an outlet structure at the downstream end where the water goes in an existing culvert under the intersection, that controlled structure meets my requirements for detention, and -Also gives you access to that canal? And the whole thing is totally open. And

then we also remove even more of the dirt around it to make it into kind of a pond area and then we replant new grass. That way it's

easy to mow, it was a pretty cheap project. Cheap as being what would that project have cost you from an engineer standpoint? I would say the outlet structure and the pipe

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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. A. Q. A. Q. A. Q. Q. A. A. Q. maybe $20,000.00. That was what you had projected and suggested? Yes, I was proud of myself. Q. Of course. It was a good -Isn't

Saved money for the City.

that your job to do that? Yes, it is my job for the City and I would have made the same recommendation if it would have been a commercial project. So if you were representing the City and a commercial building whether it be built there you would have said the same thing? Yes. Still lived up to your engineering standards? A. Correct.

Still maintaining what the purpose of the storm water is, and getting the job done an inexpensive as possible? Yes. All right. What then happened?

At that point I looked over and I noticed Mitch Randles was in the meeting. Who? Mitch Randles, the Fire Chief, and Jack Schaller, and there was some other folks

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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. there, Dave Hunt was there, but Mitch looks over at Jack and he shakes his head and he says, you know he's not going to go for that. And Jack said - he looks over at me and he says, all right, he said, the City Manager wants the whole lot level and I said why? I

said you're talking about putting this into a culvert now? I said one thing that's And Mitch

following our own regulations.

says, hey, I would be fine with an open pond. Doesn't bother me a bit. I don't care. But

I'm telling you we've already met with Mark once, he wants the whole thing smoothed off. I said, well, for one thing it wouldn't be meeting our standards and for another you are adding a tremendous amount of money to this project and the first fifteen minutes of the meeting was complaining about the fact you don't have enough money to build it. This was Mitch Stephens? Mitch Randles. Randles. And they said, look, they said we will take your recommendations to Mark, we just don't think he will go for it. And they said what

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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 Q. A. Q. Q. A. Q. A. Q. A. would the cost be to put a culvert through there? I estimated I said just the cost of

the materials alone would be $120,000.00, and as it turns out when it was bid out and we purchased the box culvert it was $100,000.00. So you were wrong by 20 grand? Yeah. On the hard equipment? That's just the cost of the box culvert. Would it be a private contractor to do that? Well, it ended up to save money we used City forces. We still had to rent pieces of

equipment that were big enough to handle that large box culvert, specialized pieces of equipment for the compaction around it, and then also a lot of rock backfill materials. Can you give me a final cost in your estimate as you're sitting here today? I would estimate it as roughly as $150,000.00. Okay. So would it be fair to say that you

could have saved the City, your employer, $150,000.00 by designing this area the way you intended to design it? fair statement? Would that be a

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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. A. Q. Q. A. A. It would be about $125,000.00 because we're going to have to put in a concrete channel. So $125,000.00? $125,000.00. $125,000.00. I'm going to ask you to a reasonable degree of certainty within your profession, this is getting into your expertise, was your standard that you had designed it, would it have been according to the standards that you understand you to be bound by, the way you proposed to do it? The way I proposed to do it was within our standards, within meeting our own code. You said it was brought to Mr. Rohr. then occurred? At the end of the predevelopment meeting Jack and Mitch both said, look, we will try to get by with the open pond. And they came back What Yes, it would have saved

and Jack said, okay, he wants us to put in the culvert and he said and we're going to use - I said whose paying for it? And he

said, well, we're going to use out of the storm water fund, the storm water sales tax. And I immediately pointed out that is not an

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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 Q. A. approved project. That's not on the list of

projects approved by the voters, and he said, yes, he said, I know, but Mark wants us to do that. So he said, but I did win one I said, look, we've got

concession from him.

to try to do something to replace this money and Mark said, we will sell in the future the remaining pieces of property there that we don't really need, we will sell that and the money from that sale will go back to help replace the cost of the box culvert. To

which I said I'm not an expert in the cost of property, but I can tell you you only have one driveway in and out off of Schifferdecker, you're sharing it with the Fire Department, and though it is on a corner of a nice intersection it's still a terrible lot and you're building it on very poor soil conditions that we would have to disclose. We couldn't sell it without disclosing the fact that you're basically going to be stuck with a pier design because we would get in trouble if we didn't. What's a pier design, sir? It's drilled piers for your foundation.

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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. A. Q. Q. A. Q. A. A. Q. Q. Okay. Costs a lot of extra money for the

buyer to build? It does. And you knew that as an engineer that would require piers at that location? Yes, it's terrible, terrible property. So you disclosed that to Mark personally? I did not. Jack Schaller and Mitch Randles, I don't know

they're the ones that went.

what took place at that meeting, I just know the result coming out of that meeting was we were building this very expensive box culvert system with the one caveat that the future sale of the remaining parcel would go back to help replace that. And they told you that was Mark's suggestion to use those funds? Yes. Now as I understand it the storm water fund is a separate tax? There's a sales tax, part storm water sales tax. Doesn't that require Council vote to approve a project under that? It does.

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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. A. A. Q. A. Q. A. Q. Q. Q. A. A. Q. A. Q. And did you have Council - was that ever brought to Council for vote? You know, it was -At the time -I'm having a hard time remembering whether I brought to Council the purchase of the $100,000.00 box culvert. I cannot remember It should

whether I brought that to Council. have been. I can verify that.

Can you get back with me? Typically I would do a green sheet and take it to Council. Well, but Council would not have known that that was not necessary in that project? No, they wouldn't. Would you have disclosed that? Not if I wanted to keep my job. They would have said why would you do it the expensive way as opposed to saving us money? That's right. So you did this under order of Mark Rohr basically? Passed through Jack Schaller, but yes. What's Jack Schaller's position? He was the Assistant Director of Public

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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 A. Q. A. Q. A. Q. A. Q. A. A. Q. Q. A. Q. Q. A. Q. A. Works. Is he gone? Yes. Did he get fired for this? No, he left the City after the City Manager demoted the Director of Public Works. Who was the Director? David Hertzberg. Should I talk to Mr. Schaller? Would he

confirm what you've just told me under oath? I believe he would have to. I mean certainly you would expect that he would. Would he lie, for example, to me?

No, Jack wouldn't lie. How can you get hold of Schaller? He now works for Olson Associates Consulting Firm. Is he getting money from the City in his - I mean would that affect his -As a consultant, yes. So he may not want to talk about this? He may not. That's true.

Does he still get projects from Mark Rohr? Yes. Well, we selected, myself and the other

consultants and the new Director of Public

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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. A. Q. Q. A. Q. Works, we have selected Olson Associates to do work for the City. Because they're capable of doing that business? Well, and specifically Jack Schaller who was handling key projects before leaving the City, you couldn't grab another consultant that could step in and do it as well as the guy that was already running it. Right. So if I talk with Schaller there is

the possibility he wouldn't want to talk with me. And I certainly don't have any right to I do have a right to make you

make him. talk. Okay.

And I have a right to make Mark talk, and I have a right to as you know to discipline somebody through the Council if they don't talk with me, but I can't do that with Mr. Schaller because he doesn't work there. about this other guy, Hertzberg, does he still work for the City? Yes. Would he speak honestly to me? Yes. What

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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. Q. A. A. Q. A. Q. Q. A. Q. A. Do you know him? David Hertzberg is honest to a fault and -Does he know about this situation? Yes, he knows because I was pretty vocal about everyone involved. I would think you would be upset. Well, right. You know, it's your duty, I mean sworn duty and you've got an engineering responsibility and someone is stepping on your fingers. Would that be a proper assessment here? It is, and the thing that bothered me the most about it is I have to go and require if you were building an office in the City of Joplin I would require you to follow our -Yes. And no one wants to. No, of course not. It costs you extra money. Absolutely. In the interest of treating everyone the same I would make you do it. I had to make

people, churches, commercial properties, you know, development, I had to treat them all the same and I pride myself on treating them

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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 A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Q. the same so it was very aggravating. Well, it's against your sensibilities and your professional responsibility. This guy

is sitting over the top of you basically. Now you don't believe that Schaller and Hertzberg made those decisions? No, sir. You don't believe that the Fire Chief made that decision? No, sir. Would the Fire Chief support your position that this is what happened? If he was answering honestly. Does he still work for the City? Yes, he does. Mitch Randles? Uh-huh. Do you know Mitch Randles? Yes. Do you trust him? Yes. Could you contact him and ask him to come and talk with me about this? Would he support

your position or is he going to support Mark? I think he would support the position because

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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. A. Q. Q. A. Q. A. Q. A. Q. A. Q. -It's the truth. Yeah, it's the truth. Well, you know guys lies, some guys lie? Uh-huh. Is he directly under Mark at this point? Yes, as Fire Chief. As you are? Yes. You are admonished not to discuss anything we talked about to anybody except if you will take that lead for me and see if the Fire Chief will confirm this matter. Would you do that? I can do that. I'm going to give you one of my cards and if the Fire Chief would support your position on this I would like to have the Fire Chief come in tomorrow. I'd like you to have him come

in and talk to me at the end of the day, maybe 5:00 o'clock or something like that. Would you do that? Yes. I want to admonish you not to talk to anybody else except the Fire Chief and maybe Mr.

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Page 22 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. A. Q. Hertzberg, if you can. Okay. Would you be able to do that? Yes. This is the topic I'm wanting to talk about. Just tell them that if they don't - I mean I can ask them to come in here, but there's no sense of me asking if I'm going to have to end up firing one of them for not talking. Right. Do you understand what I'm saying? Uh-huh. So nobody else other than those two and they cannot talk to anybody. Okay. Will you tell them that? Yes. And I'd like to see them tomorrow, if I could. I can do that. All you have to do is they can come over, they can get off work and come over and see me at any time. Mr. Head is my contact, he's

the Attorney, the City Attorney, and if there is anybody that gives anybody grief I call

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Page 23 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. A. Q. A. Q. A. Q. A. Q. Q. A. Brian Head, okay? Okay. For instance, if one of them can't be

here like - if I find out that the Fire Chief is out of town -Yeah, I'll talk to him some other time. But

I still don't want anybody talking about this stuff. Right. It's a very confidential matter. why? Yeah. Let's be honest about it, Mr. Rohr could fire you? Uh-huh. At this point if he finds out, and he will at some point find out, it is my hope that he's no longer in a position where he would fire you and if he did it would possibly be retaliation. Right. So there's where we're at, okay? questions? I don't have any problem with that because it's wrong, you know. A lot of money involved there that shouldn't Any You can see

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Page 24 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. A. A. Q. have been. To the best of your knowledge could you also find out whether or not you did take that authorization? Yes, I can find that out. There should be some kind of paperwork to support that. Yeah, I keep a file on the projects I bring to Council. I cannot remember whether I took it to Council. It's just under $100,000.00.

Mark could have approved it. Oh, he could have approved it? authority to approve it? If it is under $100,000.00 he can approve it. Q. Yes. But he shouldn't be approving it? No, that only happens - we have made requests occasionally to have Mark approve stuff that's under $100,000.00 without going to Council. Usually it has to do with being in And what typically when Without Council? He had

a big time crunch.

we do it we say can you approve this, can you sign that, and then we tell Council about it at the following, whenever the following meeting was.

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Page 25 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. Of course in this case it appears to me it was about $125,000.00 additional. But the purchase of the box culvert, the box culvert, the precast items, that's just the cost of the box culvert. equipment rentals -Do they consider those separate items? Yes, they'll all separate. So he may have jurisdiction to do that without Council? A lot of the other stuff - well, I know that we didn't take the rental of equipment, I know that didn't go to Council, and I know that all of it because I said, look, I don't have a project number, I can't issue a P.O. without a project number, what project number do you want me to use? And I emailed that to Then you have

Leslie Jones and said, look, you know this isn't a project, it's not on the approved list, how am I supposed to write a P.O. for that? And she emailed back and said there's Typically the

a general number that we use.

general number is for stuff that just comes up and usually it's small stuff or it's an emergency repair, a hole that's fallen in in

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Page 26 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. the street and it's because a pipe is broken, we have to replace that pipe, it could be $25,000.00, $30,000.00 to do that, you use the general number to do that. Well,

typically I don't see anything that big on the general number and so, yeah, and it makes it hard. I've tried to put comments on each

purchase order so you know it went to the fire station. Because if somebody came in

and said, well, how much did the fire station cost, they wouldn't really know the number. Because that was not assigned to the firehouse? Yeah, unless an auditor was -Pretty sharp. -- really sharp and looked at the - if he was just looking at the purchases to that project number he'd have one number unless somebody told him, oh, by the way, all these purchase orders here which you have to look through one-by-one and kind of know which ones they are. Would you be able to get that purchase order for me, also? Yes.

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Page 27 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. Q. A. A. A. Q. A. Q. A. Q. So we want a copy of the purchase order. What was the other item I asked? Talking with David. And there was another item. Mitch Randles. BY COURT REPORTER: brought it to Council. Yes. (By Mr. Loraine) those notes. Let's wait until you make Then whether you

Hertzberg and Randles, see if

they'll confirm your suggestion that they knew what was done to you in that regard. And the costs that were assigned to the general as opposed to the firehouse. Okay, green sheet and P.O.s for fire station, culvert. Will they have Mark's signature on them? No, typically the Director of Public Works does it. Who is the Director of Public Works? At the time it was David Hertzberg. Did David ever tell you that this should not have been done in this fashion? tell you that? I would say this is completely wrong. Did anybody

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Page 28 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. Q. A. So you know yourself? Yes, I know. right. I said you know this isn't

It's not fair to the voters because I really don't

they didn't approve this.

have a problem with telling the voters we didn't specifically plan on using this money, but we are. That I don't have an issue with

as long as you tell them through Council. What aggravates me the most is the fact that, one, we're not telling anybody about it, two, the whole reason for putting in this stupid culvert is just so the damn lot can be flat, you know. It's to placate his whim on

appearances, you know, because he just doesn't like the looks of a pond. Shit. That's a lot of tax dollars, too. Let me ask you this question. Did you ever

talk with Rohr and tell him this was inappropriate? No. While we're on this topic I'm going to diverge just a little bit. Have you ever

experienced Mr. Rohr's demeanor when he's upset concerning dealings with people that are under his supervision?

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Page 29 1 2 3 4 5 6 7 8 Q. A. I've been pretty insulated from him. Only

been in his office - considering I've worked here eight years it's kind of weird, I've only been around him less than - other than Council meetings I have only been in the same room with him for, I don't know, maybe an hour and a half. Anything learned during that hour and a half

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Page 31 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. Q. A. reasoning is, you know, the only information he gets about building folks is people calling to complain. Well, I'm a contractor

and I'm mad about this or I'm mad about that. Well, so he doesn't give them funding for hardly anything, and yet that building handful of people bring in through their fees a tremendous amount of money and so it with not enough people, not enough equipment, almost no training. We'll all complained You can't get

about the lack of training. into paper training. For any department? Yeah, for any department.

Anything in Public That

Works is the only thing I know about.

stupid software, our accounting software, Navaline, you know, I've been there for eight years and have never actually received Navaline training. I'm able to authorize and

in the loop and have to approve requisitions, big ones, and I have never received any training on that software. Have you complained about that -Yes. -- to Mr. Rohr?

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Page 32 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. A. A. Q. A. Q. Q. A. Yes, and I have not - but Jack Schaller stated several times that he did and David Hertzberg said we need to spend more money on this training. We need to do some training.

It seems like he's wanting to save money, but then you just gave me an experience where he flaunted the saving of money? Yes. In the project that you gave me? Uh-huh. Have you heard anybody complain about him demeaning or screaming at employees? you witnessed that? I heard complaints about him being short with employees and being harsh with employees, and it's always the same ones, the ones that actually have contact with him. Who are they? You're looking strictly at your department heads, your Fire Chief to a certain extent. I don't get around him very often, but the Fire Chief, definitely I see Dan Pekarek or the Health Department, you know, Dan is like, oh, boy, I'm meeting with Mark, oh, that's going to be terrible. Jack Schaller, Troy Have

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Page 33 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. A. Q. A. Q. Bolander, everyone that has to deal with him just don't want to. And that's been your experience? Yes. Is it a fear of losing a job, a fear of his demeanor? It's a fear of losing your job, a fear of his demeanor, and also it's kind of his way or the highway. I know Robert Lolley was very

uncomfortable with funding sources, what we were being pushed to do with one of the street scape projects. With one of the what? Street scape projects. I know the very first

street scape project and the ones after that until I finally stopped doing it the lights that are out in the radius of the curve if you go up to 4th and Main you'll notice that there's streetlights at each of the four corners. A couple of them I've been able to move, but some of them are still right out in the radius. That's because that's how he did

it in Peekwa (ph.) and he told us to do it that way. We said that is a bad idea, we

don't want to do it that way.

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Page 34 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. Q. A. Q. A. Why is that? You're putting it out in the radius so that when trucks take a corner they hit it. They

can't take as much of a corner because it's right on the radius and that's already a tight intersection. The engineering staff

says, no, we don't want to do it that way. We were overrode and that was back when it was Rob Smith and David Hertzberg at the very beginning. That was because of Mark? That was Mark overriding the engineering staff's recommendations. Mark is not an engineer, is he? No, no. No, and it was all about - I mean it

wasn't even - you can't even appreciate how the look was, but he was dead set on it out in the radius. Since then we've probably

replaced a dozen of them where they've been knocked over. If I were a truck driver and I I

hit one of those I would sue the city.

would lawyer up and sue the city, and I think they would win. Doesn't make sense from an engineering standpoint?

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Page 35 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. Q. A. Q. A. Q. A. Yeah, being an expert witness on that would be very easy. You would look at it and say,

okay, you put a light right out at the radius, right out on the corner. This is one of those, what do you call it, radius section where your back tire of the truck is going to top on it? Yeah. That's designed, the radius? You do expect the trucks, when they do the turning radius on there you expect the trucks to get over on it. So it's not a normal curb, it's a small curb? A. It's a ramp, an ADA ramp.

A ramp, okay. And you smooth out the ramps on the corner and sometimes you can't help that kind of stuff, but this was just - and what tears us up about that is I know that your average public person drives through there and says those idiot engineers. were overruled on that. Okay. You mentioned a name of somebody that And it wasn't us. We

was really afraid of talking with him at a meeting. What was that guy's name that you

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Page 36 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. A. Q. Q. A. A. Q. Q. Q. A. Q. A. Q. A. A. said? I know that Robert Lolley was not real thrilled with -Lolley? How do you spell that?

L-O-L-L-E-Y, Robert Lolley. What does he do? He's in charge of the buses, the trolley service. And he's a department head? No, he's underneath Public Works. Operations. You'll talk to the Chief and Hertzberg about what we've talked about on the other issue? Yes. And is it your opinion that was an illegal use of that money? Yes, because it wasn't brought up to the Council. But you said you subsequently brought something to the Council on it? It sure wasn't explained. So you think that if it would have been explained the Council would not have gone along with it? It depends on how you frame the explanation. Actually

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Page 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 A. Q. A. Q. A. A. Q. Q. If I was to frame the explanation, no, I don't think they - if you went to the Council and you said, well, we have two options. costs this much, one costs this much, and this one results in this pond area next to it and this one results in it being flat, you know. For the amount of money they would One

have said -Well, let me ask you this. Is there

something environmentally wrong with having a pond? No, no, that's what you want. I mean esthetically that would have been pleasing? Well, it's a dry detention pond. When it

rains it fills up with water, then it drains off and it's just kind of a dipped in grassy area. You drive around and see them all the

time, you just don't know it. So it's standard operating procedure as far as you're concerned? It's required. Standard? Yes, standard requirement. mine, St. Louis -In your city,

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Page 38 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. Q. A. Q. A. Q. Okay. Let me ask you this question. Is

there something with the creation of the pond would be a mosquito breeding area? No, you control the amount of time that it takes for it to drain. So you don't really see why Manager Rohr would come to this conclusion? have a real reason for that? He likes things to be - his preference is everything mowed very neatly like a giant golf course. I mean I realize that's his preference, but I mean from a City Manager standpoint I mean you've never been a City Manager, -No. -- so from an engineering standpoint there was no reason to spend the extra money? Oh, absolutely not, you. And you did recommend against it? Yes. And you still would recommend against it? Yes. And retroactively you would say if called to a stand publicly you would say that was a bad move and I was forced to do it? You don't

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Page 39 1 2 3 4 5 6 7 8 9 10 11 (SWORN STATEMENT CONCLUDED) A. Q. Q. A. Yes, I didn't have any choice. to do it and I didn't like it. Okay. Thank you and I appreciate you coming I was ordered

in here. Sure. We're off the record.

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Page 40

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 14th 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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