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‘TRINDBERG & SCHOLNICK, LLC employment and labor law November 4, 2014 sue big Hand Delivered gle Ben Ysura wt, A \? Secretary of State of Idaho wl Secretary of State’s Office P.O. Box 83720 Boise, Idaho 83720-0080 Re: Notice of Claim for Brandon Eller To Whom It May Concern: Enclosed herewith is a copy of the Notice of Claim Mr. Eller served on December 20, 2013 and to which he received no response. This is further Notice pursuant to 1.C. §6- 906 of ongoing and continuing illegal retaliation by Idaho State Police (“ISP”) due to Mr. Eller’s whistleblowing activities and protected speech. FACTUAL ALLEGATIONS Subsequent to service of the first Notice of Claim the following events have occurred which Mr. Eller believes to be part of a pattem of ongoing and continuing retaliatory acts. ‘¢ No response to concems raised in the Notice of Claim (see pages 6-7 for specific demands). ‘© After Mr. Eller was told that the Crash Reconstruction Unit was being restructured, he was taken off his day shift schedule and placed on a patrol team where he rotates between night and day shifis. This change of schedule occurred in January 2014. © Inearly January, Mr. Eller’s Lieutenant, Bradley Doty, told Mr. Eller’s direct supervisor, Sgt. Fred Rice, that he was a “disgruntled employee.” Lt. Doty discouraged Sgt. Rice from providing Mr. Eller with a “significant accomplishment” rating. Had Mr. Eller received that rating, he would have been eligible for a performance bonus. ura {801.359.4149 (1) © 801.359.4319 (F) 208.336.1728 (1) + 208.287.3708 {F) G7SE 2100S « Suite 350, £802 W. Bannock st. + Site 303 Solt Lake City, UT 4106 Boxe, 1D 83702 worm IDAHO * On January 10, 2014, Mr. Eller was informed that ISP was investigating allegations against him related to conduct involving a Trooper that occurred in May and June of 2013. These allegations were ultimately not sustained. However it took the department nearly 60 days to notify Mr. Eller that the allegations were not sustained, causing him needless stress in the workplace. © On January 13, 2014 Mr, Eller was told that he had been relieved of his duties as interim Statewide Program Manager. * Due to his ongoing concerns about unethical and possibly illegal activities as it related to crash reconstruction work, including, and perhaps most shockingly, the Department's direction that all draft reconstruction reports be destroyed, Mr. Eller asked permission to withdraw from performing further reconstruction work at the end of May 2014 In June, Mr. Eller applied for a pay increase pursuant to ISP’s Project Choice plan and tied to his certifications and experience in teaching ISP Specialty and POST courses. * On July 3, 2014, his application was rejected for this pay increase without explanation. * Despite requests in multiple venues for the rationale behind ISP’s denial, ISP has continued to conceal information, which should be transparent, about its denial of this pay increase. © ISP's denial was arbitrary, capricious, abused its discretion, and was part of the ‘on-going retaliation against him for his protected activity. CLAIMS The Idaho Whistleblowers Act prohibits ISP from taking “adverse action against an employee because an employee participates or gives information in an investigation, hearing, court proceeding, legislative or other inquiry, or other form of administrative review.” LC. § 6-2104(2). It further protects an employee who “communicates in good faith the existence of . . . suspected violation of law, rule or regulation.” LC. § 6-2104(1).. ISP’s actions, as detailed above and as set forth in the December 20, 2013 Notice of Claim, constitute an on-going adverse action for Mr. Eller’s participation in the investigation and the preliminary hearing related to the Sloan matter, and for his ongoing communications regarding suspected violations of laws/rules in violation of the Whistleblowers Act. Mr. Eller reserves the right to bring other claims and causes of action based on the facts set forth above and in his original Notice of Claim. DAMAGES The extent of Mr. Eller’s damages to date are unknown but include the lost pay increase from the Choice point, out-of-pocket attorneys’ fees and expenses, damage to his career advancement, and emotional distress. Sincerely, STRINDBERG & SCHOLNICK, LLC Erika Birch ts Enc, Ce: Client RINDBERG & SCHOLNICK, LLC y employment and labor law i December 20, 2013 Ben Ysura Secretary of State of Idaho Secretary of State's Office P.O. Box 83720 Boise, Idaho 83720-0080 Colonel Ralph Powell Idaho State Police Headquarters 700 S. Stratford Drive Meridian, Idaho 83645 Re: Notice of claim for Quinn Carmack and Brandon Filler Dear Colonel Powell: Please be advised that we have been retained by Quinn Carmack and Brandon Eller, both of whom are employed by Idaho State Police (“ISP”), in regard to the retaliation that they have been subjected to because of their whistleblowing activities and Protected speech. I write in hopes that this matter can be resolved quickly and professionally without the need for further action, To the extent that it cannot, this letter will also serve as a Notice of Claim, to the extent required, pursuant to LC. §6-906, FACTUAL ALLEGATIONS Both Corporal Carmack and Master Corporal Eller have had long and fruitful careers with ISP. Master Corporal Eller has been employed by your department since 1997 and in 2012 received an “exceeds” rating in his evaluation and was the most recognized Trooper in District 3. Corporal Carmack has been employed by ISP since 1999 and in 2012 also received a favorable evaluation, Master Corporal Eller joined the Crash Reconstruction Unit (“CRU”) in District 3 in 2004, Corporal Carmack joined the same CRU the following spring, in 2005. Prior to the accident at issue, neither officer’s work on the CRU unit had been questioned or found to have been substandard nor had there been any question about their honesty and integrity, Unfortunately, because they UraH TT OO i IDAHO 601257-4169 (+ 801.388.4915 (F] 208.336 17HP g298.2872708 Grenieas uie ts Sol onsen Sait Loke Ci, UT ettog Bote, 10 83702 ‘eww =. refused to change their testimony and opinions about an accident involving a law enforcement officer to support the outcome desired by the administration, both are now under severe scrutiny and have had their integrity directly put at issue. The accident which has led to the current state of events occurred on October 18, 2011, on US Highway 30 in Payette County. It involved a Payette County Deputy Sheriff, Scott Sloan, who, while responding to a 911 call, hit a vehicle being driven by Barry Johnson. Mr. Johnson was killed as a result. Trooper Justin Klitch was the investigating officer and Corporal Carmack was assigned to perform the collision reconstruction and analysis report. Corporal Carmack was on duty af the time of the accident and responded to the scene, along with Trooper Klitch and others. Corporal Carmack's presence at the scene enabled him to take his own measurements of things such as the skid marks, post accident location of the vehicles, and to personally observe the condition of both vehicles. This facilitated his preparation of the accident reconstruction report. Master Corporal Eller did not respond to the scene and had no involvement in or with the accident until he was directed by the District Lieutenant on or about November 21, 2011, to interview Deputy Sheriff Scott Sloan. For some unknown reason, and contrary to ISP’s well established practices, Trooper Klitch, the investigating officer had neglected to interview Deputy Sloan. According to ISP’s practices such an interview should have taken place within a few days of the accident. ‘As por normal practices, Corporal Carmack prepared a draft of his report and on or about November 28, 2011, contacted Sergeant Fred Rice to have peer reviewers assigned. Sergeant Rice directed Corporal Carmack to have the report reviewed by Corporal Terry Murdock and Corporal Steve Smith. Again, Corporal Carmack followed all required procedures and practices in regards to these reviews, which were performed approximately during the first week of December. Corporals Murdock and Smith submitted a number of comments and suggestions to Corporal Carmack, who incorporated them into the report. Importantly, neither Corporal Murdock nor Corporal Smith, nor Sergeant Rice who ultimately approved the report towards the end of December, questioned Corporal Carmack’s conclusions that Deputy Sloan had made an “unsafe pass” and was operating his emergency vehicle in an “unsafe manner.” Corporal ‘Carmack's report dutifully listed the blood alcohol levels of the deceased as reported by the Coroner. However, Corporal Carmack could not determine or conclude that the deceased's blood alcohol level caused or even contributed to the accident, and therefore he did not list it as a causational factor. His conclusion was apparently concurred in by Corporal Murdock, Corporal Smith and Sergeant Rice, Itis not known at this time exactly who reviewed Corporal Carmack's initial report, but it must have included, in the least, Captain Steve Richardson and Lieutenant Sheldon Kelley. They called Master Corporal Eller into a meeting on December 17, 2011, and began to aggressively question him as to whether he believed that the deceased’s blood alcohol level had caused the accident. Ironically, Master Corporal Eller 2\Page had not at the time even read Corporal Carmack’s report, but he was familiar with the alcohol issue because of conversations in the office and because of his interview with Deputy Sloan. Master Corporal Eller made it clear to Captain Richardson and Lieutenant Kelley that based on what he knew ISP could not prove that alcohol caused the accident. It was readily apparent that this was not what Captain Richardson and Lieutenant Kelley ‘wanted to hear as they argued vociferously with him to try to get him to change his opinion, He refused to do so, ‘That same day, Corporal Carmack tumed in his report to Sergeant Rice. Three days later Corporal Carmack was called into a meeting with Captain Richardson and Lieutenant Kelley. Sergeant Rice was also in attendance. Both Captain Richardson and Lieutenant Kelley made it abundantly clear they were unhappy with Corporal Carmack’s conclusions that the deputy was responsible for the accident, which put him in a position where he might face prosecution. Captain Richardson and Lieutenant Kelley were extremely hostile towards Corporal Carmack and Sergeant Rice, and the Lieutenant in particular started yelling and screaming at Corporal Carmack claiming he had ignored the blood alcohol level of the deceased. In fact Corporal Carmack had not ignored this issue, and had included it in his report; he just did not believe that it had caused the accident. Captain Richardson and Lieutenant Kelley also wanted Corporal Carmack to include information in his report about the turn signals on the deceased’s vehicle, although Corporal Carmack explained that the left turn signal had been completely destroyed and it therefore was not possible to determine if it was operational, They also wanted Corporal Carmack to include more information in the report about site distances and conclude that the deceased had seen the deputy but failed to yield. Again, Corporal Carmack stated that he could not reach such a conclusion based on the evidence he had uncovered, In short, both Captain Richardson and Licutenant Kelley wanted the report modified so as to place blame for the accident on the deceased and if not exonerate, at Jeast minimize, the responsibility of the deputy. Corporal Carmack believed that changing the report to reach a predetermined ‘outcome or conclusion was wrong and unethical, even though he was effectively being ordered to do so. Finally, to appease his superiors, and because he felt he had no option, Corporal Carmack agreed to include some information about the turn signal bulb in the report and to modify the last section of the report to include facts that were already contained in the report (the deceased’s blood alcohol level and that the deceased had turned left in front of an emergency vehicle). He agreed to such a change only after Sergeant Rice got Captain Richardson and Lieutenant Kelley to agree that the ttle of that last section would be changed from “causational factors” to “conclusions.” After the meeting Corporal Carmack made the changes as directed, and had it re-reviewed by Conporals Murdock and Smith on December 27, 2011. He then submitted it to Sergeant Rice on December 28, 2011. 3[Page a ‘The Gem County Prosecuting Attorney decided to move forward with charges against Deputy Sloan and a preliminary hearing was held on April 13, 2012, Corporal Carmack and Master Corporal Eller testified, as did Trooper Klitch. Corporal Carmack truthfully testified that he had been directed to change the report by his supervisors, but mado clear that he believed his original conclusions were accurate ~- that alcohol was not a cause of the accident, or at least that he could not determine that it was a cause of the accident. Corporal Carmack reiterated that he believed that the deputy had caused the accident by operating the vehicle in an unsafe manner, Master Corporal Eller testified consistently with Corporal Carmack, and that based on his interview with Deputy Sloan, and given the location and the speed at which Deputy Sloan was driving, he believed Deputy Sloan was driving in a reckless manner. Trooper Klitch testified to the contrary, claiming that he did not agree that the deputy had operated the vehicle in an unsafe ‘manner, and contended that he did not know how such e statement had gotten into his, ‘own report. In fact, in November of 2011 Trooper Klitch had directed Corporal Carmack to add the phrase “unsafe operation” in Trooper Klitch’s report and specifically had ‘concurred with the conclusion. In short, Trooper Klitch failed to tell the truth in his testimony, but since it apparently supported the “story” the ISP administration wanted, he never suffered any repercussions, even when his deceptions were pointed out by the prosecutor. In contrast, the testimonies of Corporals Carmack and Master Corporal Eller were immediately noted and reccived with extreme disfavor, According to Lieutenant Kelley’s testimony during his OPS investigation interview on May 2, 2012, a Sergeant Ketchum attended the preliminary hearing, and sent text messages back to him (Licutenant Kelley) at headquarters regarding Corporal Carmack’s and Master Corporal Eller’s testimony. ‘The negative reaction was instantaneous. While the preliminary hearing was still going on, Sergeant Rice was called into a meeting at headquarters which we believe included Captains Brian Zimmerman and Steve Richardson, Lieutenant Sheldon Kelley, Major Clark Rollins, Major Kevin Hudgens, Major Kederick Wills, and yourself, Sergeant Rice was told that Corporals Carmack and Eller “have laid us out” and that they might be removed from the reconstruction team. ‘Three days later Sergeant Rice was called into another meeting with Colonel Powell, the three majors, Captain Zimmerman, Lieutenant Kelley, and Deputy Attorney General Grunke. At this meeting statements were made that because of their testimony Corporal Carmack and Master Corporal Eller could not be ‘rusted, that they should be taken off of the CRU and that they might not even have a job. Importantly, there were no accusations that either Corporal Carmack or Master Corporal Eller had lied during their testimony; rather the sole issue was that the administration did not like the substance of their testimony, Less than a month later, Master Corporal Eller received an evaluation that indicated he caused dissention, that he needed to improve his communications skills, and that he did not complete all of his work. None of these accusations were true, and ISP apparently had no documentation to support any of them. Indeed when Master Corporal 4|Page Eller confronted Sergeant Duggan, who had given him the evaluation, and repeatedly asked to see the documentation in support of the evaluation, Sergeant Duggan stated he had no such documentation and had been told to write the evaluation by headquarters, Apparently over the course of the next year, as the Sloan prosecution moved forward, Trooper Klitch was communicating and cooperating with the defense attomey, unbeknownst to the prosecutor. Trooper Klitch’s conduct apparently undermined the prosecutor's ability to move forward with the case, and he agreed to dismiss charges sometime in March of 2013. Then on April 24, 2013, the day the case had been scheduled to go to trial, Corporal Carmack was placed on administrative leave and along with Sergeant Rice, became the subject of an OPS investigation. During his administrative leave Corporal Carmack lost approximately $5,000 in overtime wages. This investigation ran through the end of October of 2013, and culminated with ISP giving Corporal Carmack a letter of reprimand for failing to maintain a high standard of integrity, honesty and respect for others, and for inefficiency, incompetence or neglect of duties. He was also taken out of CRU and reassigned to patrol duties. His new supervisor has already criticized him as not being a team player, not spending time with his team cating lunch or having coffee, told him he needed to stop more cars and write more tickets and if he did not make the changes it would be reflected in his 2013 evaluation. Master Corporal Eller was brought in and told that the perception from headquarters was that he had a negative attitude and did not support the crash reconstruction program and that if he did not change this perception he would be removed as a crash reconstructionist. While Master Corporal Eller was not subjected to an OPS investigation, he has been removed from the CRU and has been reassigned to patrol starting the first of the newyear. CLAIMS ‘The Idaho Whistleblowers Act prohibits an employer such as ISP from taking “adverse action against an employee because an employee participates or gives information in an investigation, hearing, court proceeding, legislative or other inquiry, or other form of administrative review.” I.C.§6-2104(2). The actions of ISP as detailed above violate this provision. Both Corporal Carmack and Master Corporal Ellet have participated in an investigation and have given testimony at a court proceeding, specifically a preliminary hearing, Starting in December, ISP made it clear that it wanted the report to emphasize the blood alcohol of the deceased, and to minimize the misconduct of the deputy. While never enunciated, itis apparent that the ISP administration felt it necessary to protect a fellow officer, even if the evidence showed he had possibly engaged in criminal misconduct. Corporal Carmack and Master Corporal Eller refused to bend the truth and as a result have suffered adverse consequences by not going along with the wishes of the administration, Additionally, we know that Trooper Klitch lied on the witness stand and then worked with Deputy Sloan’s defense counsel to undermine the prosecution against Deputy Sloan, Such conduct is reprehensible and S|Page should have led to Trooper Klitch losing his certification. Yet as far as we know Trooper Klitch has received no discipline, and in fact has not even been the subject of an | investigation. The only logical explanation for this is that his perjured testimony and his subsequent misconduct supported the outcome desired by ISP ~ the dismissal of the charges against Deputy Sloan, ‘The above evidence incontrovertibly supports but one conclusion: they have been disciplined and effectively demoted because the administration of ISP was unhappy with the conclusion reached in Corporal Carmack’s reconstruction report and with the testimony of both Corporal Carmack and Master Corporal Eller that alcohol could not be proven to have eaused the accident involving Deputy Sloan, The actions taken against Master Corporal Eller and Corporal Carmack also violate their right to free speech as guaranteed under both the U.S. constitution and the constitution of the State of Idaho, They have testified truthfully in a court of law about a matter of great public concern. As a result they have been targeted and thrown out of their positions, The actions of ISP has subjected both of our clients to great distress and have damaged their careers and reputations. Both are extremely concerned that they will suffer further indignities, adverse consequences and ongoing harassment in the future, Both Corporal Carmack and Master Corporal Eller are fully prepared to proceed with litigation if necessary to protect theit interests and to prevent their careers and reputations from being destroyed, However, if ISP were to take the following appropriate remedial action this could be avoided: 1, Rescind Corporal Carmack's letter of reprimand and remove all references toit from his personnel file(s); 2. Remove all references to this matter from Master Corporal Eller’s personnel file(s); 3. Restore both Corporal Carmack and Master Corporal Eller to their former positions, schedules and supervisor in the CRU department; 4. Give them both reasonable assurances that they will not be subjected to any future retaliation for their actions; 5. Reimburse and restore Corporal Carmack for any financial fosses he suffered while on administrative leave; 6. Compensate Master Corporal Eller for being assigned the duties and responsibilities of the statewide program manager during Sergeant Rice’s absence; 7. Prepare and distribute to all members of ISP a policy which affirms that the administration will not interfere with crash investigations conducted by its members, even when those investigations lead to “undesirable” results; 6{Page 8. Rescind the directive issued on July 29 by Major Kevin Hudgens directing CRU troopers to destroy all draft reports as well peer review comments in the official case files. Master Corporal Eller has raised concerns about this directive with Lieutenant Kelley and Captain Richardson and has explained that such destruction might be illegal. So far his protestations have been ignored. This directive is designed to prevent a full and complete exchange of ideas, to hide differing points of views that might emerge, and quite bluntly may constitute improper destruction of evidence which might be exculpatory in nature; 9, Conduct a complete and thorough investigation into the matter of ‘Trooper Klitch’s conduct and his testimony given at the preliminary hearing, The allegetions brought forward by the Gem County Prosecuting Attorney require an investigation as set forth by ISP's current ethics and OPS standards, 10, Conduct a complete and thorough investigation, per ISP's current ethics and OPS standards, into whether Licutenant Sheldon Kelley and Sergeant Ketchum, properly complied with a subpoena duces tecum issued the 21° day of February 2013, in the Fourth judicial District of the State of Idaho in and for the County of Payette; and 11. Reimburse Corporal Carmack and Master Corporal Eller for the attorney fees they have been forced to incur. In the absence of a prompt and positive response, my clients are prepared to file suit to protect their interests. Sincerely, STRINDBERG & SCHQLNICK, LLC 2x2 Erik Strindberg ‘bAcurrentcllentsichispinotice of claim working final docx 7\Page