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> 3 JOHN L. RUNFT (ISB # 1089) JON M. STEELE (ISB # 1911) RUNFT & STEELE LAW OFFICES, PLLC 1020 W. Main Street, Suite 400, Boise, Idaho 83702 Phone: (208) 333.9495 Fax: (208) 343-3246 E-mail: JSteele@runfstele cor Attorneys for Plaintitt IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF ‘THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA FRED RICE, an individual, ) } CASENO. CV OC 1406434 Plain, ) ) ws. ) SECOND AMENDED AND VERIFIED ) COMPLAINT. IDAHO STATE POLICE, an Executive) Department ofthe State of Tdsho and COL, ) RALPH POWELL, Director of the Idaho”) State Police in both his official and ) individual eapacity, ) ) Defendants ) COMES NOW, the Plinitf and for causes of action against the Defendants complains and lege as follows 1 PARTIES |. Pliner Fred Rice was employed as an Idaho State Police Trooper for 31 years The Idaho State Police is an Executive Department ofthe State of Kato, 3. Colonel Ralph Powell is the Director of the Idaho State Police and scted under color of state authority with respect tothe actions deseribed herein, ‘SECOND AMENDED AND VERIFIED COMPLAINT. Page 1 > > 44. Colonet Ralph Powells being sued in his individual and oficial capacities. u JURISDICTION AND VENUE 5. Jurisdiction is proper under Idaho Code § 1-705. This matter is properly before this Court because the amount in conuovesy, exclusive of costs and attomey fes, exceeds this Cour’sjurstictonal requirement 6 Venue is proper in Ada County ldsho, pursuant to Idaho Code § 5-404 7. The [daho Personnel Commission has no jutisd ton over the subject matter of this Complaint um DEFINITIONS 8. As used in this Second Amended Complain the following tems are defined as “Rive” refers to Plaintiff Fred Rice, b. “ISP” refers tothe Defendant Idaho State Police. © “Powell” refers to the Defendant Colonel Ralph Powell. 4. “ISP Handbook” refers to the Handbook which contains the expectations, uidetines, and regulations for activities while employed by the SP. ©. “ISPA” refers to the Idaho State Police Association, a non-profit ISP ‘mployee association whose members are ISP sworn officers and civilian cmployees. Approximately 96% of eligible employees belong to ISPA, “whichis approximately 280 members E_“OPS" reltrs to the Office of Professional Standards, ‘SECOND AMENDED AND VERIFIED COMPLAINT. Page 2 > > & “AD” cefers to Administrative Incident fnvestigation whichis defined in the ISP Handbook a act or omission that, if proven tue, constitutes ‘wif or wanton disregard for ISP Conduct Expectations and procedures.” h. “POST” refers to the Maho Peace Officer Standards and Training Council, a division of ISP, whose principle purpose isto establish and enfore the training, education, and employment standards of Idaho peace officers, i. SIPPEA" refers to Idaho Potetion of Public Employee's Act, daho Code § 62101 w9 62109, js “Bllingion 2011" refers to the Rice OPS Administrative Ineident Investigation 2011-00. k. “Sloan 2013” refers to the Rice Administrative Incident Investigation 2013-004. |. “Hassani 2013" refers to the Rice Administrative Incident Investigation 2013-009 m. “Dunn 2017 relers to the Rice Administrative Incident Investigation 2014-004 1. “Recon Report” refers toa Traffic Collision Reconstruction and Analysis Report which is the result of a process using specialized skills beyond typical police rash reporting t0 document and analyze the event leading to acollsion andlor cause ofa collision, © “IVER” refers to an [daho Vehicle Collison Report which gathers Statistical information forthe Idaho Transportation Department and the U.S, Department of Transportation. SECOND AMENDED AND VERIFIED COMPLAINT, Page 3 wv. STATEMENT OF FACTS ‘This action is brought pursuant to 42 USC § 1983 and isan action for injunctive and declaratory ele and for damages due tothe adverse action and retaliatory conduet of the Defendants, which resulted inthe constructive discharge of Rice. ‘The Defendants have taken adverse ction and retaliated against Rice, which violate his "igh asa clasified employee of the State of Idaho, and which violate the IPPEA and his rights protected by the US Constitution. In summary, Ree alleges that Defendants have violated the following a Hisrights asa classified employee of the State of Kaho; His sights under the covenant of good faith and la dealings © His rights under the IPPEA. 4. His ights of procedural due process under the U.S. Constitution; © His rights ot substantive due process under the US. Constitution f.Hisrights orequal protection under the US. Constitution. & His rights office speech under the US. Consititien; Rice has been the subject of four (4) Als during the past three and oneal (3 ) years They are the following 8 Ellington 2011 b Sloan 2013; Hassani 2013 4 Dunn 2014, ‘SECOND AMENDED AND VERIFIED COMPLAINT, Page 4 20, 24 2, 23, 25, 26. > > ‘These Als ar attacks upon his honesty, integrity, and commitment, and have token their toll upon Rice and his family (On September 27,2014, Rice reed from ISP. To place Rice's claims in the appropriate context its necessary to give a detailed account of is ISP history At the time of his retirement Rice was the Sergeant over a patrol team and was highly decorated and experienced ISP trooper. Rice had testified in over $00 criminal cases and more than 400 civil eases Io his 31 years with ISP Rice was consistently avarded pay increases based upon his annual performance evaluations, Rice's ISP annual performance evaluations have consistently evidenced his deicaton, Skil and achievements At the time of his retirement Rice was a POST Master Instructor in the following subjects: a. Emergency Vehiele Operation b. Accident Reconstruction © Accident investigation. ‘At the time ofhis retirement Rice had been in the IP reconstuction program since 1983 At the time of his retirement Rie had been a member ofthe [SPA for 31 yeas. Rice was elected and served asa Chaper President of the ISPA for 4 years. Rive waa ted and served asthe Vice-Chairman ofthe ISPA for 2 yen. Rice was elected and served as the Chairman othe ISPA for 16 years. Following his etrement Rice was again elected as a Chapter President ofthe ISPA. SECOND AMENDED AND VERIFIED COMPLAINT, Fase 5 21. 28 29, 30, 31 32, 33 {Wdaho State Potice Proc {SP procedure concerning an Al complaint requires the complaint to be forwarded tothe sppropriate supervisor for review. I the complaint cannot be resolved by the employee's supervisor the complaint is refered to OPS. An investigator is assigned to interview ‘witnesses, gather evidence, and prepare factual Findings. ISP procedute cals tor the investigators factual findings tobe reviewed at thre separate levels, Each reviewer is to come toa conclusion of sustained, not sustained, unfounded, or exonerated, ISP procedure requires that if the complaint meets the detntion of an adminiseative investigation the supervisor forwards the information tothe OPS Coordinator within two (2) business days ISP procedure requires thatthe OPS Coordinator nis the accused employee within five (5) business days using the OPS-00 Administrative incident Report form. ISP procedure requires tha axiministative leave with pay pending the investigation is considered the complaint is reviewed by the ISP legal services offic, for proper wording and content; and b, the Director of his designee for approval ISP procedure requires that upon a finding thatthe complaint is “sustained ane that Aiscilinary action is contemplated, the process outlined in ISP procedure 03.13 Disciplinary Due Process is implemented ‘State V. Elington, 1S1 Waho $3,253 P.3d 727 2011) In August of 2006 Rice test asa witness the ease of Stare v. Ellington (hereinafter ‘State, Ellington”). The wil took place in the courtroom of Judge John Patrick Laster. SECOND AMENDED AND VERIFIED COMPLAINT, Page 6 34, 35, 36, 37, 38 SECOND AMENDED AND VERIFIED COMPLAINT, P 3 ) Rice's testimony rebutted the testimony of the defense accident reconstruction expert. ‘The jury found Ellington guilty of second-degree murder and two counts of aggravated battery. Ellington was sentenced to 25 years in prison. Following his conviction, Ellington's attorneys requested a new trial based upon what they claimed was newly discovered evidence concerning Rice’s tral testimony. Rice was never informed and had no knowledge that his testimony was challenge in this motion for new til, The trial court denied Ellington's request for a new trial and Ellington appealed that denial to the dah Supreme Court (On appeal, the Kaho Attomey General's Office defended Rice's trial testimony inthe Uistiet cour, However, after the ease had been briefed, but prior to the klsho Supreme Court's Published decision, the Idaho Attorney Generals Office filed a complaint agains Rice alleging violation of ISP Conduct Expectations. On April 8, 2011, which was six and one-half (6 4) wecks prio tothe publication of the ‘aho Supreme Cour’s decison in State v. Ellmgion, ISP began its Al of Rice (ington 20117, On May 27,2011 Captain Rollins emailed Rice thatthe Ellington 2011 investigation was extended for two (2) weeks 10 allow the Idaho Supreme Court to publish is Str». Ellingzon decision 39, 40. 4 2. 4a, "lington was red and convited a seca time fr sco dee om Rice didnot testy inthe econ ra Ellington a 2 > Later that same day, May 27, 2011, the ldsho Supreme Court vacated Ellington's convietion and remanded the ease for a new trial, The Idaho Supreme Court's published Uecision stated that Rice had “...tesifed falsely...” and that: * is extremely disturbing... that an officer of the law would present false testimony in any case, especially a murder case. In this case, hhowever, itis impossible to believe there was any teut to the testimony of Cpl. Rice. It is abhorrent to this cour, as it would be to any other court, that @ man can be sentenced to twenty-tive years for second-degree ‘murder based primarily on the false testimony ofa troqper of this state" ‘State v. Ellington, 151 Idaho $3 at 76,253 P.3d 727 at 750 (2011), (On the day the State v. Ellington decision was published (May 27, 2011), Major Ralph Powell (now De it Colonel Powell) came to Rice's home and announced that Rice was “Brady dead.” Powell stated the following: “Whether you lied or no, Fred, and I don’t think you led, You won't be a state trooper anymore because you won't be able to testify in eout, so you won't bea viable trooper.” In Ellington 2011 the Fist eviewer concluded that Rice shouldbe exonerated an that the daho Atorey General's complaint was not sustained. The second and thin! level reviewers concluded that Rie shoud be terminated. ‘On August 1, 2011, Powell (hen Major Powell) signed the Notice of Contemplated Disciplinary Action in Ellington 2011, which advised Rice that he was about to be terminated ‘tppaled his conviction othe avo Supreme Court and is second conviction ws opel, Ste. Elingon 3014 Opinion No. 11 SECOND AMENDED AND VERIFIFD COMPLAINT. Page 8 4. 4s, 46, 41. 48, 49, > > Despite the Sia » Ellington Idaho Supreme Court decision and the teouunernations OF termination, on September 8, 2011 the Ditector of the Idaho State Police, Colonel Jerty Russell, exonerated Rice o all wrong doing and expunged his personnel record ‘The Rice Ellington 2011 investigation took ive months. Nt stated on April 8, 2011 and ‘ended on September 8, 2011. During those five months Rice was restricted to his home Monday ~ Friday, 8:00 AM ~ 5:00 PM, [Rice Returns To Active Duty Following his return to active duty in October of 2011, Rice was a Senior Specialist ‘assigned to {SP Headquarters asthe ISP Crash Reconstruction Program Coordinator. ‘The Crash Reconstruction Unit vas a specialized unit within ISP, used to investigate complex, multiple vehicle, serious injury, and fatal crashes. ‘This unit was also tasked with maintaining quality control and approving all crash reports generated by the Region's woopers, as well as counseling, teaching and improving ersh investigation to individuals or groups of officers. As the Crash Reconstruction Program Coordinator, Rice felted the peer review process of erash reconstruction reports prepared by ISP troopers To fait the peer review process, he ISP trooper who has prepared the Recon Report \would place it on a common drive so that it was available to the econstuctionist doing the peer review, The peer reviewing reconstruetionist could pull the Microsoft Word soc and conduct a peer review on their Microsoft Word doc. ‘The peer reviewer could ‘ask questions and make comments on that document. ‘SECOND AMENDED AND VERIFIED COMPLAINT, Page 9 50, sk. 32, 56 37, 38 39, 2 > That document was then placed on the common drive, and then the original trooper who had prepared the Recon Report, and Rice as Program Coordinator, could access the peer review document isting uestions and comments ‘The Recon Report was then finalized, ‘The peer review documents were retained as past ofthe oficial investigation us the peer review questions and comments were used to complete the final Recon Report The orignal Recon Report may or may not have changed during the peer review process. ‘The peer review process was a standalone review of the Recon Report to assist the author of the report. Peer review was used to support that the reconstruction was done correctly o to find any problems that might be changed or why they were not changed. in October of 2011 Rice was notin ISP District Three's chain of command The actions deseribed herein tok place in ISP Distit Thee. (On October 18, 2011, ISP troopers investigate a tal crash in Payette County involving Payette County Sherif's Deputy Sloan (hereafter “Sloan. Sloan responding 10911 call, was diving his marked vehicle at an approximate speed Of 115 miles per hour with lights and sten activated, AAs Sloan was attempting to pass a vehicle ckiven by Barry Johnson (hereafter “Johnson”, Johnson made a elt hand tum fom the highway int his driveway infront of Sloan Sloan's vehicle stack Johnson's vehicle on the driver's side, Both vehicles. were destroyed Johnson ded a a result of injuries sustained i the each The crash was investigated by ISP Trooper Klitch (asthe primary crash investigator and ISP Trooper Carmack (asthe technical analyst) SECOND AMENDED AND VERIFIED COMPLAINT, Page 10 6 a, 6 64, 66. a. 68, 69, 70. D > “Trooper Klitch was responsible for preparing the IVCR of the Sloavohnson crash Trooper Klitch and Trooper Carmack exchanged emails coreerning the draft SloanJohnson IVCR prepared by Trooper Klitch ‘Trooper Klitch, by email dated November 10, 2011, agreed with Trooper Carmack’s comments conceming the Sloanohnson IVCR and requested that Trooper Cammack ‘make those changes inthe (VCR. | the orginal Sloanfohnson IVCR prepared by Trooper Klitch, the section entitled “Contributing Circumstances” ited “Unsafe Operation of an Emergency Vehicle.” Trooper Carmack prepared the Reson Report of the Sloan/Johnson erash, It was submited on November 28,2011 Rice had no direct responsiblity for the investigation or crash reconstruction of the Sloar/Johnson crash, It was Rice's esponsibility to ensure thatthe Sloan/fohnson Recon Report had been propery vetted in the peer review process. “Trooper Carmack’s Recon Report of the Sloar/Johnson crash was peer reviewed by Trooper Terry Murdoch on December3, 2011 Trooper Carmack’s Recon Report of the Slar/Sohnson crash was also peer reviewed by ‘Trooper Steve Smith on December 20, 2011 Following the peer reviews, he SloarJohnson Recon Report was finalized by its author, Trooper Carmack, and approved by Rice on December 20,2011 Subsequently Lt, Kelley and Capt, Richardson questioned the accuracy and eompleteness Of the Slosn/Johnson Recon Report and ordered the technical analyst {Trooper Carmack) ‘o make changes inthe previously poe reviewed, approved, and final zed Sloan/fohnson Recon Report SECOND AMENDED AND VERIFIED COMPLAINT, Page 11 1 RB. m, 8. 76, ‘Trooper Carmack was also ordered to change the Sloan/Johnson IVCR, {mn the second Sloamohnson IVCR, the section entitled “Contributing Circumstances” listing “Unsafe Operation of an Emergency Vehicle” was removed and replaced with the Following: “The Ford was traveling with its lights and sirens activated at approximate speed of 115 miles per hour on a posted 50 mile an hour rural highway while attempting to pass another vehicle traveling in the same direction. ‘The Jeep made a left tun infront of an emergency vehicle with its lights and sirens activated.” ‘The changes ordered to be made in the already peer reviewed, approved and finalized ‘Sloan/Johnson Recon Report included the Following: Light Bulb Examination, b. Emergency Equipment, ©. Occupant Kinematics and Injury Concerning Johnson's BAC level. Vehicle Dynamics. © Causational Factors became Conclusions. £ Sloan made an unsafe pass” was deleted, & “Sloan was operating an authorized emergency vehicle in an unsafe ‘manner by driving without due regard for the safety of all persons and reckless disregatd for the safety of others” was deleted hh, “The coroner fisted a ranye for Johnson's BAC level between .053 and 1271" was deleted i, “Johnson hada femora artery blood alcohol level of 080” was added, On December 28, 2011, after a second poe review process, Rice approved the second Sloan/Johnson Recon Report, which included the changes ordered to be made by Lt Kelley and Capt. Richardson, Soon alter Trooper Carmack and Captain Richardson delivered paper copies ofthe ISP Sloan/Johnson crash investigation filet Prosecutor Linville These paper copies included the second Sloan/Johnson Recon Report and the second Sloan/Johnson IVCR but didnot include the first Sloan/Johuson Reon Repor oF the Hist Sloan/Johnson VCR. SECOND AMENDED AND VERIFIED COMPLAINT, Page 12 n, 78, 79, 80. 81 82, 8. 84, 85, 86, > > Trooper Carmack then asked Rice ithe peer reviewed dacunents were to be provided to Prosecutor Linville, Rice told Trooper Carmack thatthe entte ISP Sloaa/Johnson investigation file was to be provided to Prosecutor Linville Rice explained to Trooper Carmack that pursuant to Brady obligations ISP wes required to provide Proseeutor Linville with the enti ISP Sloan/hnson crash investigation fie, Rice, as ISP Reconstruction Program Coordinator, had alvays provided the prosecuting attorney the entre ISP fle of any crash investigation done by an ISP reconstructions Rice explained to Trooper Carmack that the ISP crash investigation file always included the poe review documents ‘Trooper Carmack then called Prosecutor Linvlle’s office and was told that Prosecutor file Linville wanted everything in he ISP Sloan/Tohnson rash investigat Trooper Carmack then burnt two (2) CDs of the ene ISP SloaJohnson erash investigation ile (which included both SloanJohason Recon Reports andthe per review documents) “Trooper Carmack placed one ofthese CDs in the ISP fit anc delivered the second CD to 'SP Trooper Nesbit, who delivered that CD to Proseetor Line's oie. ‘There was now disagreement among certain ISP officers as to whether they must Produce, pursuant to their Brady obligations, both Sloan/Johnson Recon Reports tothe investigating county attorney, roseeutor Linville Rice held fim that Brady obligations required the production of both Sloan/fobrson Recon Reports and peer review dacuments. ‘SECOND AMENDED AND VERIFIED COMPLAINT. Page 13, 87, 88, 89, 9 92, > 9 During the investigation of the Sloan/fohnson crash Prosecute Linville met with ISP ‘Trooper Klitch on January 30,2012. At this meeting, held in Prosecutor Linville’ office, Trooper Klitch secretly, without permission trom Prosecutor Linville, recorded the meeting On March 7, 2012, Stoan was charged with felony vehicular manslaughter by Prosecutor Linville, Before and alter Sloan was charged, Rice was approached by a numberof ISP troopers and officers who expressed concern and/or disagreement i Sloan be charged with a Rice's response to the ISP troopers and officers, who expressed concem and/or > Before Rice could speak with his Commanding Officer, Sergeant Duggan td Rice and Trooper Carmack that they need not report Trooper Carmack’s meeting with Prosecutor Linville and tha he (Sergeant Duggan) would take care of this mater. (On April 13, 2012, ISP Troopers Carmack, Biller, Smith, and Klitch (none of who were subject to Rice's supervision) tested at Sloan's preliminary hearing held before Judge Peat ofthe hind Judicial District in Payette County [Atte preliminary hearing, Trooper Carmack tstifed that [SP superiors hal tld him to make changes in his orginal peer reviewed Sloan/fohnson Recon Report [At the preliminary hearing ‘Trooper Klitch testified that he had not approved or authorized the inclusion of the section entitled “Contributing Circumstances” that listed “Unsafe Operation of an Emergency Vehicle.” “This testimony contradicted his emil approval and authorization given to "Trooper Carmack on November 10,2011 During the Stoan preliminary hearing ISP Sgt. Sam Ketchum, who was in cudge Pears courtroom, used his el pone lent wesoayes Cnerng the testimony of ISP troopers. (0 ISP headquarters. AS a result of Sgt. Ketchum’s text messaging, ISP olicers Zimmerman, Richarson, Kelley, Wills, Hudgens, Rollins, and Powell leaned for the first time that both Sloan/Johnson Recon Reports had been delivered to Prosecutor Linville At the same time that the Sloan preliminary hearing was taking place, Rice was called to meet with ISP officers ‘mmerman, Richardson, Kelley, Wills, Hudgens, Rollins and Powell in Major Hudgens office at ISP headquarters in Meridian. SECOND AMENDED AND VERIFIED COMPLAINT, Page 15, 103. 108, 105, 107. 108, 19, no. D> 3 ‘These ISP officers told Rice that Prosecutor Linville should not have gotten the two different finalized Sloan/Johnson Recon Reports, and that alcohol had to have something, 'o do with causing the Sloan/Fohnson crash, Rice held firm that their Brady obligations required the produstion of both Sloan//ohnson. Recon Reports; only Roltins agreed with Rice Wills stated that he could not believe that ISP was going to serd a deputy to prison. Zimmerman, referring to Troopers Carmack and Elle, stated tat “if these two boys have job they willbe lucky to work weekends and nights.” ‘The ISPA White Paper ‘Asa result of Rice's experience in the Ellington 2011 investigation, the ISPA reviewed the applicable [SP procedural and substantive standards by which its members were/are judged. In April of 2012, the ISPA (of which Rice was Chaitman) presented a White Paper to ISP ‘management concerning OPS Als. The ISPA White Paper questioned Al procedures, standards, delays, and costs ISPA's White Paper also raised the issue of selt-egulation and pointed out that POST hd independent and experienced investigators and had adopted rules specitcally forthe purpose ofthe investigation of Idaho Polce/Peace Oicrs. ISPA's White Paper also stated and advised IPS managsment that ssigning. ISP employees as investigators was.a waste of public funds and/or manpower. POST rules comply with statutory and constitutional seqsirements coneeming the investigation and discipline of (daho Police/Peace Officers (which include ISP employees), SECOND AMENDED AND VERIFIED COMPLAINT, Page 16 D > 111, POST rues state tht procedures provided within section 092 Due Process Procedures are designated and promulgated to specially meet the unique needs and requirements ofthe law enforcement profession for expeditious decision ~ making and handling of petitions for review in order to assure public salty and to secure a just, speedy, and ‘economical determination ofall contested 1 ters presented tothe POST Council 112, POST has been a member of the Intemational Association of Disectors of Law Enforcement Standards and Training (IADLEST) since 1988, 113, IADLEST Model Minimum Standards are found at: bupu/sww pos idaho so vero fesionastandards documents iadlestprovisionst | 114, POST is authorized to conduct investigations of any Idaho Police/Peace office. Rice s Promoted To Sergeant 11S, On April 29, 2012, after testing, Rice was promoted to Sergeant and on that Jate became Trooper Carmack's supervisor. 116. Not until December 19, 2012, eleven months after Trooper Klitch had reconled his interview with Prosecutor Linville, did Stephanie Altg, an attorney inthe Idaho Aorney General's Office, provide Proscetor Linville «copy ofthe recording made by Trooper Klitch 117. On February 01, 2013, attorney Alig emailed Trooper Bakken. ‘The email stated the following: ‘As you know, Joe Filiceti represents Sloan inthis ease, Sidhe has tried 'o contact you to interview you, but gets no response. ISP has an obligation to provide any possible exculpatory evidence (sce ISP Employee Handbook section 02.20), and Joe think you two, of one of you. ‘may be able to provide some. Please voniact him at 941-0250 (eell).” ‘SECOND AMENDED AND VERIFIED COMPLAINT. Page 17 ug, 120. 121 122. 123, 124, 125, 126, > ) ‘On February 15, 2013, in preparation forthe State v. Sloan tial, Prosecutor Linville met ‘with ISP Troopers Carmack, Bakken, Snell, Klith, Capt, Richardson, Lt Kelley, the Deputy Prosecutor, and the Vitim Witness Coordinaor. During this meeting Trooper Klitch announced that his attorney was Joe Filicet, who also represented Sloan, During this meeting Trooper Klitch announced that he had spoken to attomey Filcett about the IP Sloan/Fohnson eras investigation During this meeting Trooper Klitch announced that he told attomey Fiicett to talk to Troopets Bakken and Snell a they might have someevidence he needed During this meeting Trooper Klitch announced thet attorney Filieti had called ISP Colonel Russell about the ISP Sloan/Johnson crash investigation, During this mecting Trooper Klitch announced that his atomey Filet had told him (Kitt that he might be the target ofan ISP investistion. On February 27, 2013, attorney Flieeti posted tothe Idaho Trial Lawyers Association listserv “..anyone have any new information en Fred Rice or the ISP Crash Reconstruction Unit?” On Mareh 04, 2013, Rice met with Prosecutor Linil, attomey Filictti, and attomey Ken Stingletd (both attorney Filiceti and attorney Sringtield represented Sloan) at ISP headquarters. At this meeting Rice described his tte asthe Reconstruction Program Coordinator. On March 08, 2013 attomey Filiceti posted to the Maho Trial Lawyers Association History that he had sucessfully defended Sloan and hat exculpatory evidence had been withheld by IP. SECOND AMENDED AND VERIFIED COMPLAINT. Page 18 121, 128. 129, 130, 132. 133. o > ‘On March 11,2013, Prosecutor Linville wrote to Captain Richardson explaining thatthe felony vehicular manslaughter charge against Sloan had been dismissed because ofthe ‘inconsistent versions ofthe IVCR..” that he believed had been prepared by Trooper Klitch, Prosecutor Linville also complained that Trooper Klitch had been communicating with Sloan's defense atomey Filicett and that Trooper Klitch hal recorded his interview with Prosecutor Linville Prosecutor Linville identified Trooper Klitch as the source ofthe ISP foul-up of the State Sloan ase On March 26, 2013, attorney Fiticetti wrote to Powelt alleging that Rice had withheld exculpatory evidence and that Rie had lied about the existence of such evidence On April 23, 2013, Channel 7 TV Reporter Jamie Gray interviewed Sie w Stoan defense attorney Joe Filet (On April 24,2013, asthe result of attomey Filiceti’s complaint, Rice was suspended and placed on administrative leave with pay. Rise was assigned to his residence and was expected to be available by telephone from 0800 hours to 1700 hours, Monday through Friday On April 24, 2013, Rice was served with the loan 20/3 Administrative Incident Report Complaint which alleged that Rige had lated the following: 8 ISP Procedure 02.20 Exculpatory Evidence, b. ISP Procedure 01.02 Conduet Expectations. © Tellthe uth, SECOND AMENDED AND VERIFIED COMPLAINT, Page 19, D 2 Moiniin a high standard of personal and profesional responsibility including integrity, honesty and respect for others. IDAPA 15.04.01,190.1(a) Failure to perform the duties and carry out the obligations imposed by the state constitution, state statutes, or rules of the agency othe Division of Human Resourees and labo Personnel Commission IDAPA 15.0401.190.1(6) Inefficiency, incompeteney, or negligence in Performing duties, or job performance that fils to meet established performance standards, 134, OPS then designated [SP Lieutenant Fred Swanson as its investigator, 135; 136, ‘On May 7, 2013, ISP Major Hudgens responded to Prosecutor Linville's March 11, 2013, letter, which identified Trooper Klitch as the source of the ISP foul-up. Major Hudgens? response includes the following “Its clearly apparent, with all the individuals involved in the Sloan case that differences in opinion existed. As we are all aware this was an emotionally charged ease, which contained varied postions taken by all those involved." Following Lt. Fred Swanson’s completion of his investigation prompted by attorney Filceti's complaint on uly 25,2013 fst level review of the investigation was assigned to Liewenant Weadick On July 29, 2013, Captain Gardner forwarded this email to Lt Doty, Lt. Catin, ad La Graham: Captains, Several of you have brought to light the practice of CRU Troopers keeping drat accident reconstruction reports in the oficial case file housed at each district. It has never been the policy of the Idaho State Police to include raft copies of reports in the official ease file. The official cae file should only contain finalized copies of any reports submitted. SECOND AMENDED AND VERIFIED COMPLAINT, Page 20 a8, 139, 140, ua 142, SECOND AMENDED AND VERIFIED COMPLAINT, Alter reviewing several ISP procedures we could not find procedure which tives CRU this authority ‘The practice of CRU submitting reports for peer review is no different ‘han troopers submitting day-to-day reports to their supervisors for review ‘and final approval. The draft copies ofthese reports are not retained Effective immediate CRU members will not keep draft copies of theit reports in the official case file. As is current practice within ISP, those reports should be destroved, ‘We will diseuss this further atthe upcoming Captains meeting. ‘Majors Hudgens and Richardson.” On July 29, 2013, Lt Doty forwarded this email 10 Troopers Eller, Szeles, Carmack, and Rice, it, Weadick’s review was completed on August 26, 2013, and recommended that Riee be terminated, The second level review of the investigation was assigned to Licutenant Haight, who ‘recommended that Rice be terminated, ‘The third level review ofthe investigation was assigned to Captain Bunderson who, on September 17, 2013, recommended that Rice be demoted in rank and removed as CRU supervisor; and/or Rice maintain his rank, but is removed from CRU and receive a ‘ninimum of ten (10) hours, up to forty (40) hours, leave without pay, and that the sustained sanctions be documented in his year-end performance appraisal (On October 31, 2013, Lt Colonel Wills issued an ISP Letter of Reprimand to Rice, ‘The Letter of Reprimand states the following: “The Idaho State Police Is fost falth in your ability to manage the CRU program and is working to regain and restore the respect, trust, reputation, tnd integrity to the CRU through a restricturing of the entire prosram You will maintain you rank and pay as Sergeant." rage 21 > 3 143. Lt Colonel Wills after the decision had been made to discipline Rive, assigned Captain Reese to meet with Rice in what was designated as “Problem Solving.” 144, ISP Captain Reese, alter meeting with Rice, submitted to Powell his Feed Rice Problem Solving report dated December 16, 2013 145. Captain Reese's Fred Rice Problem Solving Report states the following under Recommendations: 1) Res the Letter of Reprimand (LOR) When you consider the totality of the circumstances, if this ease went to trial, do we have sufficient documentation and evidence to sustain the charges? | am not sure we do. I suggest, at a minimum, the department molly the LOR, Removal of the LOR and Any Referenees from Sergeant Rice's Personnel File - This isa decision the department needs to make. There has been nothing mentioned in the prior three evaluations. The founded leyations occurred during that time period. Restoring Sergeant Rice to his formally held positions ~ Removing Sergeart Rice as the CRU program coordinator is a decision the department can make. That decision, in itself, isnot punitive, Iowever, the department should allow Sergeant Rice to continue doing crash Feeonstiuction with management oversight and direction, 2) $2,000 bonus, CHOICE point increases, and 1% CEC raise — Sergeant Rice was only eligible for a $1750 bonus. He has received all back pay ineludirg the bonus, CHOICE points, and 1% CEC raise. “This issue is resolved 3) Retroactive payment of wages for one hour per day for those days during which he was assigned to his residence between April 24,20 ‘and October 31, 2013 ~ When Sergeant Rice received his ist paycheck, after being placed on administrative leave, he could have let the department know he was only being paid for 8 hours esch day. This pattem continued until he fled the problem solving after eveiving the LOR on October 31, 2013, After each paycheck, he had 10 days to file a problem solving. He missed those deadiines until he filed the problem solving when he retumed to work. Because we are two weeks behind on ‘our paytol, when he returned 10 work, two pay periods were affected. 1 recommend paying Sergeant Rice for 20 hours of eomp time to cover (wo pay peri (4 weeks). ‘This would be 30 hours if paid at time and a half SECOND AMENDED AND VERIFIED COMPLAINT, Page 22 146, 147, 148, 49, 150, 131 152. Iss. > > Captain Reese in his Fred Rice Problem Solving Report also states the following: 'No longer allowing Sergeant Rice to do crash reconstruction, even though he is Keeping his CHOICE point, has the appearance of being a veiled, punitive punishment, It is also evident that Joe Filiceti has a Personal issue with Sergeant Rice. [isnot just this erash, Filiceti did not identify any specitic exculpatory evidenes in his complaint. This issue arose because ofthe intemal problems with the (Sloan) investigation and the personal issues several of our officers had with the deputy yetting charged.” ‘Captain Reese in his Fred Rice Problem Solving Report also detail factual eror inthe Sloan 2013 AL andthe ISP review process that, in his opinion, supported emoval ofthe Rice Letter of Reprimand fom all ISP personnel ils. Rice then met with Powel to review Captain Reese's Fred Rice Problem Solving Report. At that meeting Powell told Rice that he (Powell) was not aware of the March 11, 2013 Jeter trom Prosecutor Linville t9 Captain Richardson explaining the dismissal of the felony charge against Stoan and identifying Teooper Klitch as the source ofthe ISP foul up. Rice told Powell that he would email Powell a copy of Prosecutor Linille’s March 11, 2013 letter concerning he dismissal oF State» Sloan, and Rige did so Powell, alter reviewing the Fred Rice Problem Solving report prepared by ISP Captain Reese, submited his review ofthe Problem Solving to Rice on January 03, 2014 Powell rejected Captain Reese's recommendations conceming Restssion of the Rice Letter of Reprimand and Removal of the Rice Leter of Reprimand from Rice's personnel file Povell ejected Captain Reese's recommendation that “..the department should allow Sergeant Rice to continue doing erash reconstruction with management oversigh: and direction SECOND AMENDED AND VERIFIED COMPLAINT, Page 23, 155. 156, > > ‘The result ofthe Sloan 2013 Al of Rice was a Letter of Reprimand which found Rice had violated: ISP Conduct Expectation, section 5: “Maintain a high standard of personal and professional responsiblity including integrity, honesty, and respect for others,” and Administrative Rules of the Division of Human Resoures and Pesonnel Commission, IDAPA 15.0401.19001.: “Inefficiency, incompeteney, of seligence in performing duis or job performance tha fl fo meet established performance standards” ‘The Sloan 2013 AI stated on April 24, 2013 and concluded on January 4, 2014, “The investigation took 8 months. During those 8 months, Rice was restricted to his home, 8:00 AM ~ 5:00 PM, Monday through Friday, As the result of Sloan 2013: Rice as made the scapegoat for the ISP foul-up of Sate»: Sloan, an averse ation. Rice had been targeted for investigation because of his statement and Position that both Sloaniohnson Reson Reports and Slo/Johnson VCRs were exculpatory evidence and bad to be given to Prosecutor Linville an adverse ation Rice was resicted to his home during normal working hours, an adverse action, Rice was removed asthe Cash Reconsiton Program Coordinator, an adverse action, SECOND AMENDED AND VERIFIED COMPLAINT, Page 24. 137, 1539, 161 162, 163, 164, > 3 & Rice was no longer allowed to do crash reconstruction work, an adverse Rive was reassigned to rotating shit patrol duties, an adverse action. Rice suffered loss of pay, an adverse action h. Rice suffered lost opportunity for furthering his reconstruction experience, anadverse action. i, Rice suffered the stigma of an OPS investigation, an adverse action, mack, Kelly, Richardson Administrative Incident [avestigations Trooper Carmack was also the subject of an OPS Al concerning the investigation oF the Sloan/fohnson crash “Trooper Carmack received a leter of reprimand a3 a result of his OPS Al of the Sloar/Johnson eras, Lt. Kelley was the subject of an OPS AL conceming the investigation of the SloaSohnson eras Captain Richardson was the subject of an OPS Al concerning the investigation of the SloawJohason erash, Neither Lt Kelley nor Captain Richardson was disciplined as a result of their onder to change the completed and final StoanJohnson Recon Report Trooper Klitch was not investigated or disciplined conceming his role in the investigation ofthe SloawJohnson crash, Trooper Klitch was not disciplined for his false testimony given in the State ¥. Sloan preiminary hearing of April 12,2012 ‘Trooper Kiiteh was not disciplined for recording Prosecutor Linville during his State v. [COND AMENDED AND VERIFIED COMPLAINT. Page 25 166, 167, 168, 169, 170, im. 1m, 173, 174, > 3 Stoan investigation, Trooper Klitch was not disciplined for speaking to Sloan defense attorney Filicetti concerning the Sloan/fohnson investigation. Trooper Klitch was not investigated oF disciplined despite Prosecutor Linvile's March 11, 2013 lever identifying Trooper Klitch as the source of the ISP foul-up inthe State» Sioun case. Hassani 2013 While Rice was under investigation in Sloan 2013, ISP OPS commenced another Al of Rice, The Hassani 20/3 Al of Rice was the result of a reconstruction report prepared by Rice a private investigatorreconstructionist during his off-duty time, ym of District 4 ‘The complaint against Rice was filed by ISP Cp ‘The OPS designated investigator was Lt, Fred Swanson, Rice since 1988, had performed private acident investigation and reconstruction on his own time with ISP approval Rice, as a private accident investigator was retained by attomey Steve Muhonen to nd in which Twin investigate and reconstruct a erash which happened on July 14, 201, Falls County Deputy Sheriff Hassani had been exitcall injured, tn the ISP investigation ofthe Hassani crash, Deputy Hassani was Found tobe the cause othe erash Deputy Hassani was cited by ISP and ped guilty on September 16, 2010, Deputy Hassani subsequently fled a personal injury case conceming the crash, Hasan! » NALCO, SECOND AMENDED AND VERIFIED COMPI.AINT, Page 26 176. im, 178, 179, 180, 11 Dd a While offuy, Rice, in his private investigation of the erash several years later, found ‘evidence in the ISP file that Deputy Hassani was not the sole cause of the eash, ‘The evidence found in the ISP file was a publi service video deseribing the Hassani crash, Based upon his private off-duty investigation, on May 29, 2013 Rice presared a writen «expert report to be used by Deputy Hlassan's personal injury attomey,Stere Miuhonen, The Hassani 2013 Al was concluted to be unfounded and resulted in exeneration. ‘This Al had been commenced on September 25, 2013 and concluded on January 3, 2014 During this time Rice was already resteted to his home because of the Sloun 20/3 investigation {As the result ofthe Hassani 2013 investigation: © ioe had been targeted for investigation because of his private tTduty investigation profession, an adverse action, . Rie was restricted 1 his home during notmal working hours, an adverse Rice suffered loss of pay, an adverse action, 4. Rive suffered loss of opportunity for furthering his reconstruction experience, an adverse action, © Rice suffered the stigma of an OPS investigation, an adverse aetion AAS a further result of the Hassani 20/3 investigation, ISP adopted a new procedure ‘Outside Employment.” See ISP Handbook 3.06 Outside Employment. SECOND AMENDED AND VERIFIED COMPLAINT, Page 27 132, 183, 34, 186, 187, 188, Dunn 2014 The Dunn 2014 Al of Rice was the result of complaint filed by an Ada County Deputy Prosecutor Shavina Dunn, ‘The complaint concerned an investigation and aes made by Riee of Chad Bicknell The OPS designated investigator was again Lt. Fed Swanson. This Al commenced on August 25, 2014, AC this time Rice was again restricted to his hhome 8:00 AM ~ 5:00 PM, Monday through Friday [As Rice resigned on September 27, 2014, he has no knowledge ofthe status or outcome ofthis OPS Investigation However, asthe result ofthe Dunn 2014 OPS investigation: a Rice, agai wad been targeted for investigation, an adverse action, b, Rice, again, was restricted to his home during normal working hours Monday through Friday, an adverse action, © Rice, agin, suffered loss of pay, an averse ation. Rice, again, sulfred lost opportunity for furthering his reconstruction experience and adverse action © Rice, again, suered the stigma of an OPS investigation, an adverse Rive Files An Appeal With The Idaho Personnel Commsso On October 31,2014, Rice filed an appeal withthe Kaho Personnel Commission ‘On December 02, 2014, Deputy Attorney General Kenneth M. Robbins faxed a copy of the writen devision issued by the hearing officer in Eller v, llaho State Police, Case No. SECOND AMENDED AND VERIFIED COMPLAINT, Page 28, ss, 191 3 > 14-10, t0 Rice's attorney. In Eller, the IPC, under similar Facts as this ease, concluded it lacked subject matter jurisdiction {ihe Idaho Personnel Commission has no jurisdiction aver the subject matter of this Complaint loan/Johnson Crash Rice has engaged in protected activities which resulted in adverse action taken by Defendants aguinst Rice because of those protected activities Rice's protected activities in the investigation of the Sloan/Johnson crash included the following Rice in yood faith communicated and performed his duties in vecordance With ISP policies, procedures, and standard police practices, and all applicable rules, regulations and laws, a protected activity . Rice in yoo faith communicated and followed standard ISP procedures in the SloanJohason crash investigation, a protected activity. Rice in good faith communicated with ISP peer reviewers of both Sloan/lohnson Recon Reports a protected activity 4. Rice in yoodfuth followed the onder of his superior officers that changes be made in the completed and finalized Sloanohnson Recon Report, protected activity © Rice in good ith communicated Grady obligations requiring the Production of both Sloanohason IVCRs and Sloantlohnson Recon Reports, a protected activity, SECOND AMENDED AND VERIFIED COMPLAINT, Page 2, > 3 Rice communicated in yood faith the waste of his manpower, a protected activity, Adverse Actions —Sloan/Johnson Crash 192, Defendants" adverse actions taken against Rice as the result of his protected activities in the Sloan/Johnson crash investigation included the following: AAS a resut of pantcipating in protected activities Rice was made the subject of an OPS Al, an adverse action The comphit fled by atomey Filcet did not allege willful oF wanton disregard for ISP Conduet Expectations and Procedures, Defendants had no just ease to intate an AL of Rice, an adverse action ISP initiated the AF against Rice because he objected to withholding the frst SloaJohnson crash Recon Report from Prosecutor Linville, an adverse ation, Defendants fled to comply with ISP notice requirements, an averse action, Detendans filed to provide Rice withthe due process required by ISP procedure 3.13 Disc ry Due Process prior to making the decision to impose discipline against Rice, an adverse action, Defendants, for reasons which are arbitrary andor capricious, disbanded adverse action, the ISP Crash Reconstruction Unit, Rice was removed as the Program Coordinator of the Crash Reconstruction Unit, an adverse wstion, Rice was reassigned to rotating shifts on patrol, an adverse action, SECOND AMENDED AND VERIFIED COMPLAINT. Page 30 9 9 J. Rive was refused the opportunity to reconstruct crashes, an adverse action, k. Rice was accused of lying, an adverse action, tected Activities = Hassani Crash 193, Rice's protected activities in the investigation of the Hassani crash included the following: 4. Rive in good faith communicated and performed his duties in accordance With ISP policies, procedures and all applicable rules, regulations and laws protected activity , Rise in good faith communicated to ISP and obtined ISP approval for his engagement as ‘expert witness andlor investigator during his off-duty hours, protected stivity © Rice in good faith communicated to ISP his engagement as an expert witness who had been retained by Deputy Hassai’s atomey, Steve Mubonen, in the personal injury ease Hassani ». NALCO, a protected activity Crash 194, Defendants adverse actions taken against Rice as the result of his protected activites in bis investigation ofthe Hassani eras include the following: Asa result of participating in protested activites Rice was made the subject ofan OPS Al. an adverse action 5. {SP initiated the Al because Rie had participated or provided information inthe court proceeding of Yassani v. NALCO, an adverse action, SECOND AMENDED AND VERIFIED COMPLAINT, Page 31 196, 197, @ > © The complaint filed by Cpt. Storm did not allege wilt or wanton lisregard for ISP Conduct Expectations and Procedures 4. Defendants had no just eause to initiate an Al against Rice, an adverse Protected Ag Duna Rice's protected activities in the Dun matter include the fllowing ‘8. Rice in good faith communicated and performed his duties in accordance With ISP potieies, procedures standard police practices, and all applicable lows, a protected activity Adverse Action - Dunn Defendants’ adverse ations taken against Rice asa result oF his protected activities in the unm matter inclu the following: As a result of participating in protect activites Rice was made the subject of an OPS Al, an adverse ation, b. The complaint fled by Prosecutor Dunn did not allege willful or wanton isegard for ISP Conduct Expectations and Procedures. © Defendants had no just cause to initiate an AL against Rice, an adverse action Defendants’ Additional Adverse Actions Detendants’ atonal adverse actions taken against Rice include the following 8. ISP failed to provide Rice oral or written warnings prior to initiating its OPS Als, an adverse action, SECOND AMENDED AND VERIFIED COMPLAINT. Page 32 > b. ISP fails to use the progressive discipline provided for in the ISP Handbook, an adverse action, ISP has investigated Rice without just cause, an adverse action. 4. ISP had no objective grounds to discipline Rice, an adverse action © ISP blatantly ignored and/or disreyarded its own procedures, an adverse £ Rice has sulfered the stigma of multiple Als, an adverse action, 198. _ Rice in yood faith communicated to Defendants ISPA's White Paper concering AIS inadequacies which yave Defendant the reasonable opportunity to correct the following: 4 “The waste of public fund or manpower by restricting its employees to house arest, b, The waste of pubic funds or manpower by fling to use POST investigators, procedures, and standards © The waste of public funds or manpower by assigning ISP employees as investigators 4. The violation of ISP employee right. © Deprving its own employees of honest, meaningful review prog to ‘imposing discipline. 199. Rive participated in and gave information in bis Als which are defined in the ISP Handbook as act or omission tha, if proven, constitutes willl or wanton > ‘The Defendants Sloan 2013 investigation, the investigators finding of fac, the three (3) levels of review, the reviewer's conclusion, the Letter of Reprimand, and Powell's refs to rescind the Leter of Reprimand were all adverse ations. 'SP, in its Als including the investigations of Rie, incorrectly, unlawfully, and unjustly Subject its employees to the Rules ofthe Division of Human Resources despite the fact that these rules are inappropriate and inadequate forthe investigation of an Idaho Police / Peace Officer, an adverse action, ‘The complaint against Rice fled by attorey Fillet, Sloan's defense lawyer, was factually basles. ‘The complaint against Rice fled by ISP Captain Storm conceming the Hassani crash investigation was factually basees. The complaint filed aginst Rice by Dunn of the Ada County Prosecutors Office was actually baseless. {SP had no just cause to initiate the Sloan 2013, Hassani 2013, 0 the Dunn 2014 Als. In each ofthe loan 2013, Hassani 2013, and Dunn 2014 As 8. Rice was placed on administrative leave with pay b, ISP procedures requires that if administrative leave with pay is considered, the ‘complaint is reviewed by both the ISP legal services office and the Director (Powel, or his designee for approval ISP, ints AIS, including those investigations of Rice, imposes discipline in an arbitrary, capricious manner, an adverse action. 'SP, in its Als including those investigations of Rice, imposes disparate discipline in Violation of ISP standards, an adverse action. ‘SECOND AMENDED AND VERIFIED COMPLAINT, Page 35: 216. 217. ais. 219, 220. 221 2m. 224, 22s. > > ISP, in its Als including those investigations of Rice, subjects its own employees to Virtual house atest, an adverse action. ‘The Sioan 2013 AL investigator, Lt. Fred Swanson, found no evidence of willful or ‘wanton conduct, yt ISP disciplined Rice, an adverse ation, ‘The Hassani 2013 investigator, Lt. Fred Swanson, found no evidenee of wilful or wanton conduct ISP, asthe result of its hostile work environment, has constructively discharged Rice in violation of his statutory rights as a clas employee ofthe State of Laho, violation of his rights under the United States Constitution, and in violation o its obligation of good faith and fir dealings and has violated his rights under the IPPEA, al verse actions {SP violated its obigation to pay Rice as required by the Fair Labor Standards Act, an adverse aetion 'SP, asa result ofits Als of Rice, has blackballed Rice from any future law enforcement employment, an adverse ation, 'SP, a5 a result of its Als of Rice, has blackballed Rice from any fture private erash investigation or reconsrution, an adverse setion. Rice has been the subject of Als which were used as a pretext to force his retirement and/or termination, an adverse action. The discipline Defendants imposed on Rice in the Sloan 2013 AL was punitive, an adverse ation Defendants’ loa 20/3, fasani 2013, and Dum 2014 Als were retaliatory conduct taken against Rice because of his protected activities, an adverse action, SECOND AMENDED AND VERIFIED COMPLAINT, Page 36