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Orange "County Firefighters vs Orange County
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June 17,2011
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STATE OF FLORIDA PUBUC EMPLOYEES RELA 110NS COMMISSION

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CASE ~O.; CA·2011·073 ORANGE COUNTY PROFESSIO~A.L fiREFIGHTERS, LA.F.F., LOCAL 2057,

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INDEX CHARGING PARTY'S WITNESSES: CHRIS SHERBURNE: Direct Examination by Mr. Lev Cross-Examination by Mr. Lichtman Redirect Examination by Mr. Lev Recross-Examination by Mr. Lichtman ANDRE PEREZ

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CHARGING PARTY.
v, ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS, RESPONDENT.
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ORDER

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TELEPHONIC HEARING AND PREHEARNG HEARING OFFlCER WILLIAM D. SALMON DATI' TAKEN: friday, June 17th. 2011 9:00 a.m. to 11:27 a.m. Internal Operation Center 450 East South Street Building I Orlando, Florida ,280! LlSA M. TROMBLY BY: Court Reporter and Notary Public State of Florida at Large

Direct Examination hy Mr. lev Cross-Examination by Mr. Lichtman ROBERT WELLS: Direct Examination by 1'.1r. Lev Cross-Examination by Mr. Lichtman Redirect Examination hy Mr. Lev Recross-Examination by Mr. Lichtman RESPONDENT'S WITNESSES; DAVID A. HEPKER: Direct Examination by Mr. Lichtman Cross-Examination by Mr. Lev Redirect Examination by Mr. Lichtman Recross-Examination by Mr. Lev CERTifiCATE OF OATH CERTIFICATE Of REPORTER

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TL'V!E: PLACE:

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TOBE LEV. ESQUIRE OF: EGAN, LEV & SIWICA, 231 East Colonial Drive Orlando, Florida 3280 I (407) 422-1400 APPEARING

P.A.

EXHIBIT INDEX EXHIBIT REFERRED TO: JOINT EXHIBITS:
Joint Exhibit Number I (Standard Operating

Procedurcs.) EXHIBITS:
1 (E-mail

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ON BEHALF OF THE CHARGING ESQUIRE

PARTY

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PETER LICHTMAN,
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OF:
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8 20] South Rosalind Avenue 3rd Floor Orlando. Florida 3280] (407) 836-7320 APPEARING ON BEHALF OF THE RESPONDENT
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Union's Exhibit Number subject, social media, Union's Exhibit Number bulletin, II. dash, 04. media, dated 1/5/11.)

Admin

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subject, social

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(All exhibits were marked and retained by Hearing Officer Salmon.)

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Page MR. LICHTMAN: That's correct HEARING OFFICER SALMON; And who is the County's designated rep? MR. HEPKER: David, middle initial A, last name Hepker, spelling H-E-P-K-E-R. HEARING OFFICER SALMON; Title, please? MR. HEPKER: Manager of administrations. HEARING OFFICER SALMON: Thank you. Are there any other appearances? Let the record show, no response. Is there any other person, organization or employer present who desires to participate in this proceeding on the grounds that its substantial interest will be affected by the final order in this matter? Let the record show, no response. I will permit brief argument in support of motions or objections at the request of counsel. In order to avoid unnecessary interruption of the hearing, I will permit a continuing objection to be registered if an objection is made to an entire line of questioning. Objections to adverse rulings need not be stated on the record. One of the parties has retained a court

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PROCEEDINGS

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HEARING OFFICER SALMON: On the record, this hearing will be in order. Good morning, ladies and gentlemen, this is an evidentiary hearing before the Public Employees Relation Commission, in the case of the Orange County Professional Firefighters, LA.F.F., Local 2057 versus the Orange County Board of County Commissioner. per Case Number CA, dash, 2011, dash, 073. My name is William D., as David, Salmon, S-A-L-M-O-N, and I am the commission's appointed hearing officer in this case, This is a telephone hearing being conducted between Tallahassee and Orlando. MR. LICHTMAN: Orange County -- I'm sorry, that's fine, you're correct. HEARING OFFICER SALMON: Yes, sir, please= you're in Orlando, Florida; is that correct? MR. LICHTMAN: That is correct HEARING OFFICER SALMON: Thank you. Today's date is June 17th, 2011. Representatives of the parties please state only their names for the record, for the charging party? Page 6!

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MR. LEV: Tobe Lev. HEARING OFFICER SALMON: You use the middle initial M. as in Mary? MR. LEV: Doesn't matter to me. HEARING OFFICER SALMON: Okay. MR. LEV: I don't think there's that many Tobe Lev's around, so I don't really need it. HEARING OFFICER SALMON: Local 2057, woo is your designated representative? MR. LEV; Our present, Chris Sherburne, who just stepped in a minute ago. HEARING OFFICER SALMON: Spell the name for the record, please? MR. LEV: C-H-R-I-S, S-H-E-R-B-Ll-R-N-E. HEARING OFFICER SALMON: S-H-E-R-B-li-R-N-MR. LEV: E. HEARING OFFICER SALMON: -- E? MR. LEV: E. There's an E at the end, right? MR. SHERBURNE: Yes, HEARING OFFICER SALMON: Okay. Thank you very much. And for the County? MR. LICHTMAN: Peter Lichtman, L-I-C-H-T-M-A-N. HEARING OFFICER SALMON: And -- you use the middle initial A?

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reporter at its expense, everything which is said during the hearing is recorded by the court reporter. The court reporter makes the only official transcript of this hearing. If any party desires to make off-the-record remarks, please address your request to me and not to the court reporter. I am recording this hearing using not one, but two digital audio recorders. It's my understanding, Mr. Lichtman that you are also digitally recording with an audio recorder; is that correct, sir? MR. LICHTMAN; Yes, that's correct. HEARING OFFICER SALMON: Okay. Everybody is on notice that they're being recorded. As we discussed off to record this morning, the court reporter will be administering the oath, since all the witnesses are there in Orlando. There are no witnesses here, and I am frankly alone in this room in Tallahassee. My duty is to ensure that a complete factual record is prepared to provide the basis for my recommended order and for the commission's final order in this case. During the hearing I may have occasion to ask

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questions of the witnesses in order to clarify the record. However. even though I may ask questions it does not relieve either party of its burden of proof in [his case. any party may object to the questions that I may ask. Both the Agency and the Employee will be allowed to call witnesses. present exhibits and fully participate in this hearing. The order of witness presentation is direct, cross. redirect and recross. The witness will then be excused. My preference is that witnesses with direct knowledge of the events testify first. During our off-the-record discussion this morning. one of the parties requested that the rule of sequestration be invoked. That motion is granted. Answering yes or no, are all the witnesses who are scheduled to testify on behalf of the charging party present in the hearing in Orlando, Mr. Lev? MR. LEV: Yes, they are. HEARING OFFICER SALMON: And answering yes or no, Mr. Lichtman, are all witnesses who are scheduled to testify on behalf of the County present in the hearing in Orlando?

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with the parties as to Local 2057's anticipated schedu le of witnesses, and we will sequester the
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So let's go off the record. (Whereupon, a brief recess was taken at 9: 15 a.m.) (Whereupon, the proceedings were resumed at 9: 17 a.rn.) HEARING OFFICER SALMON: Back on the record. Let the record reflect that the witnesses have been sequesn .ered. Issues in this case are those raised by the charge and the answer. The employer. Orange County, flied a motion yesterday, and this is one of the matters we wanted to take up, Mr. Lichtman. MR. LICHTMAN: The reason we filed the motion is upon reflection -- going through the entire charging document again, we noticed that contrary to the requirement of the Florida Administrative Code and Rules, there was no reference whatsoever to Florida Statute 447.501; whereas, there must be a specific reference to that in the charging document. There's nothing, and, in fact, the only reference to any statutory construction here is 447.307. and that's in Paragraph 8 of the Unfair Labor Practice Charge. and that has to do with certification.

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MR. LICHTMAN: Yes. HEARING OFFICER SALMON: For the witnesses present, the rule of sequestration excludes all prospective witnesses from the hearing room so they cannot hear the testimony of other witnesses, and the rule prevents prospective witnesses from consulting or discussing this case with each other, as well as consulting or discussing with a witness who has already testified. As a witness you can talk about this case only to the attorneys. Once you have testified, you are to leave the hearing room. as you may have to be later re-called as a rebuttal witness. The burden is on the parties, not the hearing officer, [0 instruct these witnesses who are not for these instructions. The parties arc in the best position to know which spectators arc or are not prospective witnesses. This rule does not apply to the designated officer of a party [hat is not a natural person. For Local 2057, that would be the president. for the County, that would be the manager of administration. I'm now going to go off the record and consult

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So the County is not even clear as to exactly how it can even respond to an allegations regarding certification, when clearly the Union is certified, and there is no concerted bargaining activity, that we know of, that would in any way be offended by what we have done in our -- in instituting our policy. The second thing, of course. is, again what-what are we ref- -- what are we responding to as far as an Unfair Labor Practice charge under 501. So ultimately upon going through this. we think it's more jurisdictional in nature, that's the reason we filed the motion for reconsideration, because we don't think that the complaint on its face is sufficient. And I'm not sure how it is that counsel necessarily found it sufficient. especially because it is missing that blatant requirement, but ifI -if I'm missing something, that's 'tine. We still are at a bit of a disadvantage however, based on the fact that the allegations aren't specific at all as to what activity has been chilled. I'm not even sure whether this matter is even right for consideration. HEARING OFFrCER SALMON: Mr. Lev?

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This is an ongoing relationship and Iwas wondering if -- if you would like the opportunity, everybody is in the room together, you've got the Union president, the manager of administration, you've both got lawyers there. I -- what I do is, I clear the room, the court reporter has to leave, I leave, if you'd like I can have Barry Dunn the commission settlement attorney, come in and assist in any way he can. But see if you guys can't work this out without -- and come to a resolution that is amicable to both of you. Mr. Lev. since you're the charging party. I -I don't know if you've talked, I don't want to know any of the -- I don't know and I can't know any of the substance, so anything that you say, in terms of under those settlement umbrella. cannot and will be not admissible in the proceeding today. So, Mr. Lev, would you like the opportunity -you and your client like the opportunity to talk directly with the County and see if you can work this out? MR. LEV: I don't see any benefit to it, we've -- our position has been clear from the charge,

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MR. LEV: Well, I think the answer is on the charge form, Number 5, it says the above named employer or it,"; agents have engaged in Unfair Labor Practice within the meaning of Section 447.5011(a), and we left the blank, blank. But that's the answer, That's the section. And it's tight on the charge form, And that's all that's required to be filled in. And, you know, the terms of the charge itself make it obvious what we're referring to. HEARING OFFICER SALMON: As I understand the charges, it is a lA charge, there's no refusal for bargain -- bargaining in bad faith here; is that correct, Mr. Lev? MR LEV: Yes, sir. HEARING OFFICER SALMON: It's just a J A charge. So the motion is -- is denied. We're here on a IA charge. Any other matters to be resolved before we begin taking testimony on behalf of the charging party? I'll refer to you as the charging or Local 2057 and Orange County as Orange County or the respondent, it's all synonomous to me. So, Mr. Lev, any -- any other matters before Page 14

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you call your first witness on -MR. LEV: Well, yes, sir, I would like to discuss the exhibits. I intended to show some of them to the witnesses, I want to make sure they're objected to or not objected 10 Of enter out of evidence. HEARING OFFICER SALMON: Why don't we do that one at a time. I found over the years that with me, I remember the exhibits better when they're introduced and I have context for them. Some of the heating officers, you are correct, take them all at the beginning, but I like to do it one at a time as the hearing goes on. I tend to remember them better. MR. LEV: All right, then. Well. if that's the case, I am in a position to call my first witness, HEARING OFFICER SALMON: Okay. Mr. Lichtman, do you have any other matters that you would like to -- to resolve before we begin taking testi mony? MR. LICHTMAN: Not at this time. Thank you. HEARING OFFICER SALMON: As -- as we discussed in -- in the informal preheating conference this morning. at this juncture I'd like the parties -- 1 at least offer the parties an opportunity to see if they can resolve their dispute.

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HEARING OFFICER SALMON: Okay. That's fine, call your first witness. MR. LEV; All tight. And before I call my first witness, I would just like to say that. you know, our position is that this policy we will be discussing is invalid on its face. HEARING OFFICER SALMON: Yes, sir. That's-I'm not asking for -- your charge speaks for why we're here. MR. LEV; All right. So I'm not -- I don't think -- I don't think we need testimony, but -- so by putting on testimony, I'm not waiving that position, I just want to say that by way of introduction. HEARING OFFICER SALMON: I don't understand what you're saying. MR. LEV: I'm saying if it's invalid on its face we shouldn't need testimony HEARING OFFICER SALMON: Well-MR. LEV: -- and I'm taking that position. Uh? HEARING OFFICER SALMON: I was quite surprise that this wasn't on my stipulated record. quite frankly, I don't know what's in dispute here. If your

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issue of Mr. Lev not having to demonstrate any examples or anything of that nature, then that's fine, then we'll do it by briefs. MR. LEV: Well, I almost made a motion to do this by 120.752, but, you know, I guess.that phrase of abundance caution comes into play. You know, just like a little bit nervous, you know, what if we stipulate to everything and then the hearing officer says, well, there's no evidence on a particular issue, so that's why I'm going forward this way. HEARING OFFICER SALMON: That's fine. And can the parties agree to .- and I \ViIItake an exhibit, if it's a joint exhibit, can you agree to the document that is promulgated, and I don't know how else or other ways to say it. MR. LICHTMAN: The »- the attachment -- this is Peter Lichtman again, the Attachment A to the charging party's document is the policy that is currently in effect. The-HEARING OFFICER SALMON: Mr. Lichtman? MR. LICHTMAN: Yes. HEARING OFFICER SALMON: Excuse me for interrupting you, sir, and I apologize, but I don't have -- the way that our system works, is the only Page 20
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charge is a 1A charge. you're saying that the SOP, whatever - whatever you call it, and I'm not sure what the right words are, is on its face a violation of 447 .50 11(a), I don't know what's in dispute. MR. LEV: I made an effort to stipulate to a record, I was unsuccessful. HEARING OFFICER SALMON: Well, okay. MR. LICHTMAN: Let me know when I can respond. HEARING OFFICER SALMON: You can respond. MR. LICHTMAN: Mr. Lev says he made an effort to have it stipulated and it was unsuccessful, however, all I did -- for the record. Mr. Lev did approach me and 1 said we would stipulate, but I wanted to know how it was he was going to establish that there was any chilling of behavior Of anything of that nature as alleged in the charge. When you look in the charge itself: there's an allegation that the policy unlawfully chose the rights of bargaining union member to engaged in concerted activity. So 1send him back a question asking, how can he establish that, is it just out in the world. In light of the fact that I don't believe there's been any discipline under the policy, nothing has happened.

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The response I got was. okay, we'll call witnesses or something to that effect. So it isn't -- I just want to make it clear, it's not Orange County's position, the fact is, is that the charging document itself just says that the policy on its face is -- is I guess overbroad, but it doesn't go into anything of specifics in it nor does it really address the fact that we had met concerning the policy on several occasions. So -- you know, again, I -- if -- if they wall! to put out a -- I suppose a -- just a brief on the issue, and they're talking generalities, that no facts are going to be involved in the actual arguments, well, then, that's fine, we can respond in kind from a legal perspective, HEARING OFFICER SALMON: You're talking about Paragraph 3 of the charge, sir? MR. LICHTMAN: I am -- yes, I'm referring to Paragraph 3, which is an error. because it wasn't promulgated on December 3rd. But then I'm also talking about 7, essentially saying that it is chilled. So it's 3 and 7. We certainly don't agree. so I'm not sure that we would stipulate to those allegations. If -- again, if it comes down to an

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thing that I have is the charge, I do not have any of the attachments or supporting documents. Those have to come in as evidence during the hearing if the charge is found sufficient. So I don't know what Attachment A says. MR. LICHTMAN: Attachment A is the social media policy that the Union is challenging. HEARING OFFICER SALMON: I understand that. What I don't know is among all the documents that both parties have -- have filed with me, which one is Attachment A. MR. LEV: Okay. Do you have the charging party's exhibit with you? HEARING OFFICER SALMON: Yes, I've got them in front ofme. MR. LEV: It's Exhibit 3 to the charging party's exhibits. So I would suggest that maybe we could jointly stipulate to the admission of charging party's Exhibit 3, MR. LICHTMAN: Let me check it before you do that, because rill not sure if I have it. HEARING OFFICER SALMON: My copy for the party's is two pages in Icngth and in the right-hand comer it says, Issue Member Admin 48. effective date 1!24/l1. revision date -- Page I of 2, subject

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social media, just so _. just so that you know what I'm looking at. MR. LEV: That's correct. MR. LICHTMAN: them, can 1 see yours? MR. LEV: Sure, (hands documents). MR.. LICHTMAN: is the policy. HEARING OFFICER SALMON: MR. LICHTMAN: HEARING HEARING Yes, that's fine. Okay. Okay. Mr. Lev? So marked for Okay. Would you like me to make this a joint exhibit, Me Lichtman? OFFICER SALMON: OFFICER SAL\10N: It is .- that's correct I don't know what we did with

to say-MR. LICHTMAN: Yeah. SALMON: -- Administrative Procedure, Number Admin 48, HEARING OFFICER

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Standard Operating MR. LICHTMAN: HEARING

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states, colon, block and then. That's fine. SALMON: Now, OFFICER

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is in your court, what you would like to do, sir? MR. LEV: Well, one more stipulation just to make explicit what J think is already understood. The parties did stipulate that this policy that was just admitted did in fact go into effect on January 24th, 2011, and is in the official County SOP book. So I wanted to put that explicit stipulation on the record. HEARING Okay. OFFICER SALMON: Okay. Hold on a second, let me write it out so that we've got it I'm going to call it SOP Admin 48, went into effect on January 24th, 2011, and what was the

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MR. LEV: That's fine. the purpose of identification Operating pages. The second page is a Number 5 with references and 5.1 is none, does that comport with what you have, Mr. Lev? MR. LEV: Yes, sir. HEARING OFFICER SALMON: MR. LICHTMAN: And Mr. Lichtman? That I need -- that is correct. is Joint Exhibit I. is

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the ,- it's caned the standard -- Standard Procedure, as I described a minute ago, Admin 48, the date of January 24th in the merit

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a rest of it, Mr. Lev?
MR. LEV: And it's -- it's in the County's official SOP book. HEARING OFFICER any _, any objections SALMON: Okay.

Mr.
fact?

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is correct. HEARING OFFICER SALMON: Okay. So, Mr. Lev, would you -- would you move -- would you move Joint Exhibit I into the evidence, please, sir? MR. LEV: Yes, sir, I so move it in. HEARING OFFICER SALMON: ~~~~~ MR. LICHTMAN: Yes, no obj ection, we join, And so the SOP _, I'm HEARING OFFICER SALMON: And. Mr. Lichtman,
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No objection. SALMON: Okay. And so here is OFFICER

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fact. and this is the way I'm going

to read it it's fairly -- 1 may make stylistic -what you're saying. SOP Admin 48 went into effect on January 24th, 2011, that will be numeric, and it's in the County's official SOP, meaning Standard Operating book. Is that acceptable MR. LEV: Yes. HEARING OFFICER MR. LICHTMAN: HEARING OFFICER SALMON: SALMON: And Mr. Lichtman? Okay. Anything else, Yes. to you, Mr. Lev? Procedure

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going to call it Admin 48, just for my own notes, it's marked, it's moved and it's admitted without objection for any and all purposes including findings of fact. And I can tell you what I will probably do is simply, as a fact, will just write probably where it references for completeness, Mr. Lev? MR. LEV: That's fine. HEARING OFFICER SALMON: MR. LICHTMAN: states as follows and then -HEARING OFFICER SALMON: That's what I'm going And Mr. Lichtman? Meaning that -- that the policy I 5, through 4, I don't know if 5 has any -- Paragraph but that will probably be a to you,

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Mr. Lev?
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_. and I may do the whole thing

finding of fact, if that's acceptable

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testimony in 10 or 12 minutes or less. HEARING going
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subject to relevancy

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Just bring in -- well, Mr. Sh- •• is it pronounced Sherburne? MR. SHERBURNE: Sherburne. HEARING OFFICER SALMON: Would the court reporter please swear in the witness. COURT REPORTER: Do you solemnly swear or affirm the testimony you're about to give in this cause to be the truth, the whole truth and nothing but the truth? THE WITNESS: Ido. COURT REPORTER: Thank you. HEARING OFFICER SALMON: 1-- just to let you all know, I usually ask the precatory questions, because I'm doing -- and I forgot to tell you this earlier, a sound check for the witness. So if you WOUld,Mr. Sherburne, would you state and spell your name for the record? THE WITNESS: My name is Chris Sherburne. the first name Chris, C-H-R-I-S, last name Sherburne, S-H-E-R-B-U-R-N-E. HEARING OFFICER SALMON: And you're coming across loud and clear. Can you hear me okay? THE WITNESS: Yes, sir. HEAR1NGOFFICER SALMON: Okay. Mr. Sherburne. y_o_u_a_re_d_u_I}_'_sw_·o_n_l_._M_r_._Le_v_·,_y_ou_r __ _'i_m_e_s_s_. ~

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Not withoat seeing the e-mail, All right. And when you say e-mail to the members, could you explain, do the members have their own e-mail addresses? A Yes. Q How does that work? A The members have their own County e-mail and that policy was sent out to all County employees.

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Q All right. And it was sent like individually or to each station or what? A Individually. Q All right. Let me show you Union Exhibit I and ask you if you recognize it (hands documents)? A Yes. Q And tell us what it is? A It is the -- it is Admin 48, SOP, subject, social media. MR. LICHTMAN: May I -- sorry, I'm I-confused, I'm looking at Union Exhibit I and it's a letter. Can we make sure we're on the same document? MR. LEV: Tum the page, I'm sorry. MR. LICHTMAN: Okay. So there's a letter dated January 5th.

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the •• MR. LICHTMAN: Okay. MR. LEV: -- Exhibit 1. MR. LICHTMAN: Ijust want to make sure we're clear. MR. LEV: Yes. MR. LICHTMAN: I got it. MR. LEV: Okay. BY MR. LEV: Q And let me -- I'm showing you the second page now of -- actually the third page, if you don't -- if you count the COVL'!' page. So I'm showing you the third page of (his draft that's identified as Union Exhibit 1_is there a date on
there? A

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MR. LEV: Is this fine ifhe sits here? COURT REPORTER: (Nods head.) MR. LEV: Okay. CHRIS SHERBURNE, having been first duly sworn, testified under oath as follows: DIRECT EXAMINATION BYMR. LEV: Q Mr. Sherburne, are you the president of the Orange County Firefighters? A Yes. Q When did you become the president? A April 2011. Q And is that the chief executive office of the Union? A Yes. Q Have you been made aware of the County's Standard Operating Procedure about social media?

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When did you find out about it?

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When it was sent out to the members. And how did the County make the bargaining union members aware of? A They e-rnailed it to the members. Q Do you remember approximately when this was?

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HEARING OFFICER SALMON: Where are you looking, sir'? MR. LEV: This is the last page ofUnion's Exhibit l. HEARING OFFICER SALMON: Oh, I see. MR. LEV: All right. BY MR. LEV; Q Does that date (ell you anything about when you may have gotten notice about this policy?

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December Yes. All right.

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And what is your understanding of who the "you"
union members or what?

was the latest version and they were asking comments for an upcoming session to meet and discuss it. So that is why, again, 1 would argue it's not a complete exhibit if you don't include that. In reality it should be one large exhibit. Exhibit 1, but.. MR LEV: Well, if Mr. Lichtman is telling me that this January 5th cover letter is correctly attached to this Union Exhibit I, I'll take his word for it HEARING correct? MR. LICHTMAN; modifying That is correct. SALMON: Okay. So are you now HEARING OFFICER OFfICER SALMON; Mr. Lichtman, is that

referred, when it says "you will find," is that the Union
or the bargaining

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That is the individual employee. Okay. Yes. Was that also sent bye-mail? employees?

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MR. LEV: I would like to move Union's Exhibit I and Union's Exhibit 2 into evidence. HEARING OFFICER SALMON: Before -- before you do that, what about -- Mr. Lichtman raised a fair question about that January Union Exhibit 1. Mr. Lev? MR. LEV: I'm looking at it right now to see if I need it Or whether it just confuses the record. don't think I need it, 1 would exclude that first page. HEARING OFFICER SALMON; Okay. So marked for the purposes of identification is -- it's really a

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of that. arc you also including that as part of

Union Exhibit I to be the three-page Mr. Lev? SALMON: Okay. And with that,

document that you originally filed with the Commission.

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MR. LEV: Yes, sir. HEARING OFFICER three pages, any objection MR. LlCHTIvIAN: HEARING OFFICER the three-page document. Mr. Lichtman, any -- it's marked. it's moved, the to Union Exhibit I? SALMON; Okay. And so Union No objection.

two-page exhibit for Union Exhibit I, as described by the witness, it's marked, it's moved. Any objection, Mr. Lichtman')

Exhibit I is admitted without objection, and that's

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damages or impairs the reputation and/or the efficiency of the Department or employees. MR. LICHTMAN: And -- so can Ijust clarify? MR. LEV: I'd rather do it on cross-examination .. MR. LICHTMAN: Okay. That's fine, it was just tagging onto what the hearing officer had asked. MR LEV: Okay. BY MR. LEV: Q And why do those -- those sections of the policy bother you? A Well, these policies -- these items tend to interfere with our ability to discuss issues as it pertains to work. Okay. Has this policy had an effect in your willingness to use social media, like Facebook, to speak about issues or concerns about Orange County Fire Rescue? A Yes. Q And could you explain? A 'IN e've not -- we choose not to -- or we have not used social media to discuss anything that may criticize or it may discuss working conditions within the fire department or working conditions. Q And, again, why is that? A Because we're concerned about the discipline

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Okay. Now, 2, as described by the witness as a two-page document. it's marked and moved, is that correct, it's been described by the witness, is that correct, Mr. Lev? MR. LEV: Yes. HEARING OFFICER SALMON: Any objection to 2, Mr. Lichtman? MR. UCHTI\1AN: No objection. HEARING OFFICER SALMON: Okay. And then Union Exhibit 2 is admitted without objection. Okay. And if! understand it. your prefiled 3 became Joint Exhibit I: is that correct? MR. LEV: Yes, sir. HEARING OFFICER SALMON: Mr. Lev? MR. LEV: Yes, sir. HEARING OFFICER SALMON: I'm just doing housekeeping. Thank you. Go ahead, Mr. Lev. BY MR. LEV: Q All right. Mr. Sherburne, this may seem like an obvious question, but in your experience as an Orange County Firefighter, can a bargaining union member face serious discipline for violating an SOP? A Yes. Q And it's happened before?

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that may come from it. Q As Union president, have any firefighters come to you and shared any concerns they have about the new social media policy? A Yes. Q What kind of concerns have they expressed? A The members are afraid to even discuss Orange County or the working conditions, because they're afraid of the discipline that may come from it. Okay. Has this new policy had an affect

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Yes.

Q All right. Let me show you Exhibit 3 (hands
documents), are there any sections of this pol icy that cause you concern? HEARING OFFICER SALMON: That would be Joint Exhibit L Mr. Lev? MR. LEV: Yes. THE 'WITNESS: Yes. BY MR. LEV: Q Which ones are they?
A 3.2,4.1.

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HEARING OFFICER SALMON: What part of 4.1? THE WITNESS: It says that employees shall not criticize, ridicule or debase the reputation of the Department, its policy. its officers or either employees through speech. writing or other expression. when such speech. writing or expression is defamatory, obscene. slanderous. unlawful, tends to interfere with the maintenance of proper discipline or damage or impairs the reputation or the efficiency of the Department or employees. HEARING OFFICER SALMON: So all of it, basically'? THE WITNESS: Primarily. the tends to interfere with the maintenance of proper discipline and

upon -MR. LICHTMAN: I'm just going to make a standing objection, if I could. as to the leading nature of the questions that have been asked 50 hIT, and I expected they're going to be continued to be asked. HEARING OFFICER SALMON: Goes to weight, sir. BY MR. LEV: Has the new policy had an affect on the Union? A Yes. And what kind of effect'.' A The members are concerned about talking about working conditions and it's been difficult to get them to, off duty, discuss the items. MR. LEV: No further questions.

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14,15. Okay. In your 14 or 15 years, has anybody complained to you that they weren't able to express concerns about the workplace because they weren't allowed to do something on Facebook or any other type of social media? A This is a new policy. 0 Just answer the question, in your 14 years, has that ever happened? A No, the policy didn't exist before. Q How many -- how long has the policy existed at this point? A A few months, Q And to this point, has anybody every complained to you that they were unable to discuss issues relating to the workplace because they weren't able to put it on social media? A They've expressed concern that they would be disciplined if they posted anything on Facebook, 0 But that wasn't my question. MR LEV: I think we can stipulate that this policy does not completely restrict people from talking to one another about what's going on at work, obviously that can take place in the stations or at Union meetings. A

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HEARING OFFICER SALMON: Cross-examination? CROSS-EXAMINATION BY MR. LICHTMAN: Cite to me an example where this has happened, where Union members have actually come to you and said they can't discuss the working conditions on social media, A Cite to you -- could you say that again? Q Well, you've indicated that firefighters and that they have actually come to you and said that they can't discuss their working conditions on social media, I'm asking you when that's happened? A As early a~ Tuesday night. Q Can you go into more detail? A At the Union meeting. Q And was it as a result of discussing this ULP or was it just random? A Random discussions about social media, Q And what was the exact discussion? A That no one wants (0 discuss things on social media because they're afraid of the discipline. And how in any way does that affect your ability to discuss it? You just said right now that you discussed it in an opinion Union meeting, so obviously you're

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discussing working conditions. correct? A In person, In person at a Union meeting, you are discussing the working conditions? A Yes. Q So how is it that you weren't able to discuss working conditions just because there are limitation on what you discuss on social media? A The members have chosen -- or have been afraid to post anything on social media to elicit any kind of chat back and forth about the ongoing working conditions with thc Department. Q But yet they can discuss that with you? A Yes. Okay, As far as the social media goes. when has a Union member to date been told that he cannot .- in terms of when has anybody been disciplined or brought up on charges that they've written something on social media that they should not have done to communicate issues relating to the workplace? A Members are afraid to say anything on social media, so I don't know of anyone that's been disciplined for it. Okay. To your -- how many years have you been with the Department?

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MR LICHTMAN: May I continue on my cross-examination? HEARING OFFICER SALMON: Enter into that agreement with you, Mr. Lichtman? MR LICHTMAN: No, absolutely not The exact testimony of Mr. Sherburne, one of the first things he was asked was, in a leading manner, do these items, meaning Item 3.2 and 4.1, Band C or whichever, interfere with the ability to discuss things regarding work. BY MR. LICHTMAN: Q And my request to Mr. Sherburne -- my question is. is when has an employee, a Union member, not been able to discuss things regarding work simply because social media is restricted? A That's asking me a negative, Q Sir, I'm not asking you to question my questions, I'm asking you to answer, when has this ,these items interfered with the ability to discuss things regarding work simply because there's a social media policy? A The members have said they have not been posting things on social media regarding Orange County because they're afraid of the discipline, MR. LICHTMAN: Okay. I'm going to object a"

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non-responsive, since he is not answering the question. BY MR. LICHTMAN: Q The concerns regarding your policy, it's 3.2, correct? A Yes. Q And 4.1 Band C? A Yes. Q Okay. So you don't have any objections to any other part of the policy? A Well, in general, I think a lot of the things in here are vague, and so if you wanted to -- Iwould say that 4.2 and 4.3 also have some items in there that are vague. Q And what's vague about them? A Any written, auditory or visual messages communicated by employees through social media. Q While utilizing County property or resources are the sole property of the County, what is vague about that exactly? A I'm just curious about the any auditory. Q What is not clear about any written, auditory and/or visual messages communicated by an employee through social media while using County property or resource are the sole property of the County, what is

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vague about that, any? If there confusion over the word any? A No. Q So is there any vagueness to that? A No. Q Okay. As far as 3, no employee of the Department may place any picture or logo or other insignia that indicates the employee is employed by the Department onto any social media or other public page without the authorization of the fire chief, what is vague about that? MR. LEV: I'm not sure that was alleged in the charge. Let me look at the charge again and see if we're -MR. LICHTMAN: I'm sorry, this is my cross-examination. I understand what you're saying, but this is directly responsive to Mr. Sherburne's quest- -- response. which was, he had concerns about 4.2 and 4.3. So I'm asking his concerns. He's already retracted his concern about 4.2 upon reflection and realizes it's not vague. So I would like to go to 4.3, since the entire allegation of the charge is that this policy is vague and overbroad.

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So my point goes to the fact that the Union here is simply poised to want to argue there is a problem, even though no problem has ever occurred at this point and the policy has not been abridged or challenged, nobody has been disciplined on it. So I'm -- I'm -- I think his objection may be duly noted, but I certainly don't think it's valid, we have every right to go into these issues, especially if they're raised by the witness itself: HEARING OFFICER SALMON: By a response to a question that you asked. All right. I'm going to sustain the objection because it's outside the charge. MR. LICHTMAN: Okay. BY MR. LICHTMAN: Q So then we're clear. your exact concern is 3.1, 3.2 and 4.1; is that correct?
A ·Yes.

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A Well, 3.1 and 2 are only in relationship to 4. -- 4.1 B and C. Q So 3.1 and 3.2, they're just definitions, correct? A That's just the definition. yes. Q So they're not -- do you think they're very

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specific obj- -- definitions? A Yes. Q Okay. So you don't see them as vague or overbroad? A No, 1 was mentioning them as •• as they related to 4.1 Band C. Q Okay. Originally on direct by Mr. Lev you indicated your concerns were regarding 3.2 and 4.1 Band C. the charge itself alleges 3,i, 3.2 and 4.1 A, Band C, I want to confirm that your re- -- your concerns are with 3.2 and 4.1 Band C and not 3.1 or 4.1 A? A Well, my concerns are with •• as the charges were, 3.1 and 3.2 as they related to 4.1, A, Band C Q But just earlier on direct. and, in tact, when specifically asked, you didn't have a problem with 4.1 A, so now you do have a problem with 4.1 A? A No, I initially said that A was -- I brought it up and then r said primarily Band C. Q Okay. So primarily Band C, and really 3.1 and 3.2, only with regard to how they related to 4.1 Band C; is that correct? MR. LEV: It's been asked and answered a couple of times. HEARING OFFICER SALMON: Overruled. MR. LEV: Excuse me, overruled?

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To the best of your knowledge, did the Union bargaining over this issue? Idon't know. You're Union president, correct? Yes. Q You're here today on a •• regarding an issue regarding a social media policy, correct? A Yes. And you don't know whether or not the Union has bargained over the social media policy? MR. LEV: It's been asked and answered, we will have the former Union president here to testify as a witness. BY MR. LICHTMAN: Q Can you answer the question. HEARING OFFICER SALMON: Sustained. MR. LICHTMAN: Okay. No further questions. HEARING OFFICER SALMON: Mr. Lev? MR. LEV: I've got some limited redirect. REDIRECT EXAMINATION BY MR. LEV; Approximately how many work locations are there in the County? A Just stations alone, there are •• I think, 45 locations, just for stations. request A Q A

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HEARING OFFICER SALMON: Yes, sir. THE WITNESS: Well, one of the things, as far as 3.1, it says social media means any form of computer, Internet working cite or processes, including but not limited to and -- which means that it could be any type, so that is concerning, but also as it relates to 4.1 A, B and C. BY MR. LICHTMAN: Q Okay. So now it is A, Band C? A As I said initially. Q Well, no, actually. initially you said 4.1 mostly Band C, so 1 -HEARING OFFICER SALMON: That's considered argument. MR. LICHTMAN: Okay. BY MR. LICHTMAN: Q Did you request bargaining over the policy when notice was first provided to you') And by "you." I mean the Union, you on behalf of the Union. A I didn't>MR. LEV: Okay. Him individually, did he request bargaining >- he didn't take office until Aprilof2011. BY MR. LICHTMAN:

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Q All right. And you have, what, three shifts, you don't have all the employees on duty at the same time? A True. Q How easy or hard is it during working hours for an on-duty employee in one station to communicate with an on-duty employee at another station about Union matters? A Very difficult. Q And does this social media policy pertain to off duty as well a~on duty?
And how often do you have Union meetings? A Once a month. MR. LEV: No further questions. RECROSS-EXAMINATION BY MR. LICHTMAN: Q How did you communicate before computers were in the station, with other employees, other Union members? A Various methods, telephone. Q Okay. And how did you address employees' concerns in the workplace before computers in the workplace? A Talked to them. Q Okay. Has that in any way been infringed at

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A Yes. Q Approximately when did you find out about it? A When it came out, I believe it came out as a draft GO. Q GO is a general order? A Genera! order. I don't remember the exact date. Q Did it come out to just the Union or the Union and the bargaining union members or how? A It came out -- we have -- via e-mail through the Department, it came out as a draft and it came out to all the employees. Q Can a firefighter be disciplined for violating the SOP? A Yes. Q I'm going to show you a copy of Union's Exhibit •• I should say it's Joint Exhibit I, and ask you if you (hands documents) recognize it? A Yes. Q Do any sections of that policy cause you concern? A I was looking at Band C for .- under procedures, 4. I. Okay. And what concerns you about 4 Band 4 C? A I think that B is vague, and I don't understand

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this point? A Other methods to? Q Has there been any interference whatsoever because social media is restricted to actually communicate with your members regarding issues in the workplace as you did prior to computers? A By not using social media or Facebook. for example, it's made ii difficult for us 10 talk to members. Q But you were able to do it before social media, correct? A Yes. MR. LICHTMAN: Okay. No further questions. HEARING OFFICER SALMON: Thank you very much. Call your next witness, Mr. Lev. MR. LEV: I'll call Me Perez. I'm going to go get him. THE WITNESS: Do you want me to leave? MR. LICHTMAN: You can stay, that's right. MR. LEV: Andre, you can sit right here (indicating). The witness is here. HEARING OFFICER SALMON: Thank you. Would the court reporter please swear in the witness. COURT REPORTER: Please raise your right hand.

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Page how somebody could violate and what the consequences would be in regards to that. C, I thought was vague as well. Has the policy had an affect on your willingness to use a social media to speak about issues or concerns relating to the Orange County Fire Rescue? A 1 -- yes, and [ don't use any social media outlet at this time. Q And the reason for that? A Because I don't want to be in violation or if anything -- if [ put something on there that they can accuse me of violating the SOP. Q Have any firefighters expressed or shared any concerns with you about new social media policy') A Sure. Q What kinds of concerns have they expressed? A Asking what's appropriate, what's not appropriate. If they put something on there, if it would be in violation. Just general questions like that. Q And what do you tel! them? A I -- that I can't answer all their questions. Q Because? A Because I don't have the specific answer to be able to give to them. Q Has the new policy affected the Union?

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Do you solemnly swear or affirm the testimony you're about to give in this cause to be the truth, the whole truth and nothing but the truth? THE WITNESS: Yes. COURT REPORTER: Thank you. HEARING OFFICER SALMON: Would you please state and spell your name for the record? THE WITNESS: Andre Perez, A-N-D-R-E, P-E-R-E-Z. ANDRE PEREZ, having been first duly sworn. testified under oath as follows: DIRECT EXAMINATION BY MR. LEV: Q Mr. Perez. are you an officer of Local 5027'1 A Yes. Q 'W'hat's your office? A I'm the secretary for the local. Q And when did you become the secretary? A In 2007. Q How long have you been employed with the Orange County Fire Rescue? A Twelve years. Q Have you been made aware of the County's SOP about social media?

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A It has, because we are also cautious in how we do things. We put things out there for our members to view and participate in. and we're now having to be cautious about that as well, as far as using the County name or anything like that. Q Did you attend any meetings as a Union officer or negotiator with the County where the policy was discussed with the Department? A Yes. Q Give me the approximate time frame. A Idon't remember the exact date, it was after the -- after the GO came out in draft form, it was either a few days after that. Q Does this help you at all, it says the effective date was January 241h and _MR. LICHTMAN: Objection to leading. MR. LEV: I'm reading off ofa -- Joint Exhibit 1, it's in evidence. HEARING OFFICER SALMON: Overruled. BY MR. LEV: Q Well, let me stop there, does the January 24th date help you approximate when you may have met with the County? A It was within a few dates of -- probably of that date.

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than social media policy? A Correct. Q All right. Do you know whether or not the Union ever agreed to accept the social media policy? A No. Q You don'! know either way? A No, we -- we had a disagreement on it, and Rob was following up with that. Q Okay. All right. MR. LEV: Well, I'll Save the rest of my questions on that for Mr. Wells. I'm through. HEARING OFFICER SALMON: Cross-examination? CROSS-£XAMINA nON BY MR. LICHTMAN: Q Andre, you said that the IB or possibly GO went out to -- I don't know which it was, wen! out to all the employees, which is about a thousand employees, correct? A Correct. Q Do you remember, was it the 1B or was it a GO? A I don't remember exactly. ! think -- I think it came out in GO form -Q Okay. A -- with draft written on it.

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Q How many complaints in written or via e-mail did you get from employees about the policy? A Nothing in writing, mostly verbal, yes. Q Okay. In fact, arc you aware that only _. there was only literally one objection by one employee out of a thousand that was brought to management's attention? MR. LEV: Objection, Mr. Lichtman is testifying. MR. LICHTMAN: [asked him, is he aware, but·· BY MR. LICHTMAN: Q Are you aware of that? HEARING OFFICER SALMON: Overruled. THE WlTNESS: No. BY MR. LICHTMAN: Q Okay. So that we're clear, the parts of this policy that you have a problem with are 4.1 Band C, correct? A Yes. Q Okay. You indicated you don't know how somebody could viol lite the policy if what they do on social media tends to interfere with the maintenance of proper discipline, you're not sure what that means'? A Correct. Q Okay. What is difficult to understand about

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Q All right. And who was -- who met with whom, who were the individuals? A It was Mr. Hepker, Chief Watts, myself, Rob Wells, Lori Sweeney, and I'm not sure if John Sitnik was there or not. but I-- may have been there. he Q While you were sitting there, did the Union or anyone on its behalf voice its concern about the social media policy? A Yes. Q And what do you recall about that? A They were several issues that we were meeting on, I believe multiple issues. We kind of split up between us. who was going to take charge of which issues. Rob Wells was the one that was basically heading up the issue on the social media. Q All right. Did the -- so was it him that voiced the Union's concerns about the policy? A Yes. Q Did the County agree there to change or amend the policy? A We discussed several of the policies. We made some changes on some of the policies, and I don't remember if there were any specific changes to this policy. Q Meaning the social media policy?

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damages or impairs the reputati on or efficiency of the Department or its employees? A I think that "" I understand that part ofit, but I think it's so vague that I can be -- anything that somebody can say can be construed as damaging or impairs the reputation or efficiency of the Department. Q Okay. A [think that that is too vague. And. also, as I was looking, I also have a problem with 3.2. Q And what's your problem with 3.2? A About our own personal devices, cell phones, PDAs, things like that Q Okay. Was this discussed in your meetings with management? A Yes. Q And what was explained about that? Did they offer clarifications to you as what was meant by that? A I'm not saying I'm confused on that, I'm saying I have a problem with that. Q Okay. What is your problem with it? A I don't -- I believe that the Department is overstepping its bounds by controlling our own -- our own personal devices. Q Do you use social media -- yeah, I'm sorry.

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social media policy? A There may be some benefit to it, Ijust think that the way that this is written it's a hinderance to the employees. Q And yet in your meetings with management you didn't offer better language that was more cohesive to what you wanted? A No, actually, I wasn't the one that was heading up this particular issue, Rob Wells was the one that was heading up the issue. I had another issue that I was heading up. You indicated that employees simply don't use -- like you don't usc any social media now? A I don't. Q So what social media did you use before? A I didn't Okay. So this hasn't changed anything, has it? A It's prevented me from starting to do it. Well, what did you want to start? A Well, Facebook has been popular lately, I don't do that 0 And do you think it would have been appropriate for you to open up a Facebook page and put in information about the Department, such as, you don't like your manager or you don't [ike the shift you got?

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Yes. A I do know that we -- we had an issue in a particular department where a particular employee was ordered to show her personal cell phone. because they wanted to check some text massages that she mayor may not have sent. Q Uh-huh, A And I believe that would fall under this, and we definitely have a problem with that. Q And what ended up happening in that particular case? A It's in the grievance process, I believe, still, and I think it's going to arbitration, Q What case is that? A It wasn't -- it wasn't -- the actual part about not showing the phone. is not the issue of the case, but that did come up during the case. Q But -- but she was not disciplined •• A No. No. Q -- for this policy'? A No. And I believe Q In any respect to the violation of this policy? A No, I think this policy came out after that scenario happened. Q Do you think there's any reason to have a
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A Depending on the scenario -- it depends, I guess, on what the scenario should be. I believe that I should be able to say, if [ do have a problem with a manager, why not? Q Arc you able to say that under any other policies, however? A I don't know what you mean specifically. Q Aren't you restricted by other policies that, specifically for the moral of the department, have a certain explanation of what process you're supposed to go through if you have problems with your manager? A Yes, there are some procedures that we go through. yes. Q And it's not appropriate under Department policies other than this for you to go out and disparage the Department, is it? A 1 wouldn't say I would be disparaging the Department. Q I'm asking you in general though, is that appropriate under policy? A I wouldn't think so. Q Okay. So if you complained on social media that you didn't like that you were getting certain shifts. even if you had done that verbally -- if you had done that verbally. that you were complaining about your

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shifts and the Department was out to get you and you didn't like the processes, that would be prohibit c under ed County policies, wouldn't it? A Right But I'm not saying that I would specifically say those things, but if I were able to go on, say -- for example, ask somebody if they had the same issues that I was having. For example, if there was an issue with a particular person, hey, does anybody have these same issues? That's not really disparaging the Department, but it is inquiring and -- in a broader sense instead of just being able to talk face to face with people. Q And how in any way does this policy prohibit you from sending out an e-mail to everybody you want saying, I'm having this issue, is anybody else experiencing it? A Well, Number 1, [don't have everybody's e-mails, and, Number 2, it would be -- just -- again, I was just giving that as a general example -Right. -- of what 1 could do. But in receiving people's responses could the Department, in fact, say that I'm violating -- if anything written, if they interpret that to be in violation of these rules. Q A

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reporter please swear in the witness. COURT REPORTER: Please raise your right hand. Do you solemnly swear or affirm the testimony you're about to give in this cause to be the truth, the whole truth and nothing but the truth? THE WITNESS: I do. COURT REPORTER: Thank you. HEARlNG OfFICER SALMON: Please state and spell your name for the record. THE WITNESS: Robert, R-O-B-E-R-T, Wells, W-E-L-L-S. You can just call you can just call me Rob. HEARING OFFICER SALMON: Coming across loud and clear. Mr. Lev, your witness. ROBERT WELLS, having been first duly sworn, testified under oath as follows: DIRECT EXAMINATION BY MR. LEV: Q Mr. Wells, you're an employee of Orange County fire Rescue? A Yes, sir. Q What's your rank? A Lieutenant. Q And how long have you been an employee?
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Q lfyou sent out an inquiry asking, is anybody having these particular problems, on Facebook -A Right. Q -- and everybody responded with their gripes and concerns, not just specifically, do you think that's appropriate for you to invite that in public? A I don't see why not, Q Okay. MR. LICHTMAN: No further questions. HEARING OFFICER SALMON: Redirect? MR. LEV: No, no redirect. HEARING OFFICER SALMON: Thank you very much, you may step down. Who's your next witness? MR. LEV: Rob Wells. Could we take a two-minute restroom break? HEARING OFFICER SALMON: Yes. sir, you may. MR. LEV: Thank you. (Whereupon, a brief recess was taken at 10:22 a.m.) (Whereupon. tbe proceedings were resumed at 10:27 a.m.) HEARING OFFICER SALMON: Back on the record. Welcome back from the convenience break Mr. Lev, call your next Witness. MR. LEV: I'm calling Rob Wells. HEARING OFFICER SALMON: Would the court

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A total of 20 years now. Did you ever serve as the union president? A Yes. Q What period of time was that? A From October 20 I0 to March 30th, 2011. Q Directing your attention to the last part of 20 10, did you become aware that the County intend exl to issue a new SOP on social media? A Yes. Q And approximately when did you become aware of that? A Towards the end of October. Q And how did you become aware? A An e-mail sent by Dave Hepker to me with -with the draft copy on it. Q Okay. And was it-A It -- actually, if! remember right, it came out as a general order and not -- it was a -- it was kind of weird, it was a general order, but it was a draft. Q Okay. A Normally the drafts come out as an informational bulletin. Q Let me show you Union's Exhibit I and ask you if you recognize that (hands documents)? A Yes. that's the SO· _. draft SOP. A

Q

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Q All right. Now, the --let me direct your attention to the second page, and it says, posted January 5th, let me show you -- actually, the one I wanted to show you the first time (hands documents). What did I say I was showing you, Union Exhibit I or Union Exhibit 2'1 A One. Q Okay. Let me show you Union Exhibit 1, I think I just showed you Union Exhibit 2 by mistake. A Right. Q Do you recognize this exhibit? A Yeah, it's a -- it's basically the same copy of the draft. Q All right. And is there a date on either page of this exhibit as to when it was effective? A The second date. 12/312010. Q All right. And did you see this policy on or about 12/3 or did you see it sometime earlier as you previously testified? A I believe I saw it earlier in an e-mail, and I think it was his first contact with me before it actually
came out,

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that -- that took it on, and I did the research on it. And like I said, J had -- !had e-mailed Mr. Hepker with a whole bunch of stuff that I had found on -- relating to social media and how the First Amendment affected it and all that stuff, as far as along with some - some case law that I had found on the same thing. But it -- the case law dealt with private companies and not public. Q Well. what did the County explain to you about why it wanted the social media policy? A Things that were being put out on Facebook and they didn't want, you know, the County to look in the bad light. which I can understand that. But it -- there's -- there's a fine line I think when we're talking about free speech. They-they're trying -- it seemed to me like they were trying to curtail what employees said about the Department or whether it was derogatory or not, it was trying to stop everything from being said on social media. And there was another SOP that went along with it that I was looking at both of them. it kind of coincided with it. But this one kind of -" kind of hit home and it was very vague in what they said. Q What, if anything, did the County say about how soon it wanted this policy into effect?

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A They considered it an emergency and wanted it out right away. Q And who was the spokesman for the County? A Mr. Hepker. Q And what did he -- exactly did he say, as far as you remember, about why it was an emergency? A It was, more or less. that -- that it was an emergency to the Department, because they wanted to •• to stop anything from being put out that was derogatory. And they felt that -- that with social media the way that it is today, that anything could be said and whether it was derogatory or not. they -- they didn't want the Department I(} look in a bad light. And it -- to me, as Union president, when a -our contract specifically says declared emergency, and declared em- -- there's only two people that can declare an emergency. the mayor -MR. LICHTMAN: I'm going to object at this point, this is outside the scope of the charge. HEARING OFFICER SALMON: Mr. Lev. why are we discussing this? MR. LEV: Well. I think it went back to why it had to be put out right away and it was an emergency, [ guess. HEARING OFFICER SALMON: Was that in the

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with -- 1 had looked through it and found some things that I thought were kind of -- Bill of Rights violations is what I thought they were, and I c-mailed him back with some information on why I thought it was that way. Q When you say "Bill of Rights violations," I think there's ten of them, which character Bill of Rights violations? A Amendment 1 in particular. Q All right. There's different sections of that what part of Amendment I? A Free speech. Q All right. Okay. Did you ever meet with the County about the policy? A I think it was in January that -- January -January that we met, and there was a whole list of things. because we were -- we couldn't coordinate the light times, so there -- some more things came out and we met with a whole list of things to talk about. Q A whole list of things concerning social media or a whole list of things concerning other topics? A Other topics, social media was -- was towards the -- the end of the list. Q All right. Did you have a special role in spearheading the social media discussion') A Pre- -- pretty much. it was -- I was the one

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charge? MR. LEV: to the charge. HEARING got rebuttal, BY MR. LEV: MR. LEV: OFFICER SALMON: Well, let's •• you've move on, Sustained. No, it's anticipating their defense

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1 have a Facebook account then? on there?

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Do you have any managers I have a couple, yes.
Okay. Yes. Okay. Orange County

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none of these people HEARING hearsay. for what it's worth, Go ahead. BY MR. LEV:

are here to testify.

First Amendment out

OFFICER

I'll take it

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curtail it before -- I mean, change

it before

Mr. Lev, if it's -- if it's Overruled. come up to you

And they had -- Mr. Hepker had said to me that he felt that it was an emergency away, and basically out regardless and had to go out right was -- we were told that it was going at all based

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Have you had people

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of what we did that day.

Did the County change its position No.

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What have they told you? They're -- they don't like it They feel that by not be- -"

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And the policy has been put into effect? As far as Iknow it has, yes. After it went into effect, did any members come

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their -- their rights are being violated being able to say anything media.

that they want to on social your ability to

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Has this new policy affected

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on Facebook? on it, because it -- as I

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With some things, yes. Imean, Itry -- I try

come to me and -on social media,

not to say anything derogatory

and ask about, if they put something could they be disciplined disciplined anything anything for it.

try to teach my kids. what you say is out there forever. So if -- if you're going to say something derogatory, everybody is going to have a chance to see it try not to say anything

And under the -- under the policy they could be for it, so they -- they were scared on social media or Facebook in fear of being disciplined All right. for it.

to put
Of

and you might as well not even do it. But I-- specifically I that -- like that, but there is people out there that have -- have done it in the past.

or Twitter

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but just F acebook

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the record,

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critical of for -- of

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password

the Department, AYes,

does that give you any concerns? towards the Department.

Let me back up a little bit, have you used Facebook? A Yes. Do you need a password? To get into my account, Okay. The people that I have as -- there's list, anybody anybody a friends that's on that in the Department? that -- that's yes.

anything I said derogatory

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What's your definition of derogatory, how, if at all, dOI:&that differ from critical? A Saying anything bad. whether a decision that was made was bad or -- or anything that -- an SOP that
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list, and as the friends

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list can look at what's on my Facebook. Does that include Anybody All right. list, yes. And do you have -- you actually who's on the Department

this policy Iwould be suscepted

disciplined for it.
MR. LEV: HEARING All right. OFFICER No further questions. SALMON: Cross-examination? Yes.

under my friends

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CROSS· EXAMiNATION BY MR LICHTMAN: Q You're not permitted under policy=- aside from the social media policy though. you're not permitted under County policy or departmental policy in general to make disparaging or derogatory remarks that put the County in a bad light, are you? MR, LEV: Objection, I would like to sec some evidence of the pol icy. HEARING OFFICER SALMON: OVClTUled. THE WITNESS: Under this policy, yes. I don't know of any other one .BY MR LICHTMAN: Q You're saying that -A -- out there. Q You're saying that you don't know of any policy within the Department that prohibits you from disparaging the Department? A I think there is, yes. I mean, I can't tel! you exactly which one, there is, yes. Q Okay, So it wouldn't be appropriate for you to say something derogatory about the Department to the public that puts the Department in the bad light; is that correct? MR. LEV: Objection. I'm going to object to Page

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they afraid? A If we're not talking about the Department, then there's nothing to he afraid of. Q And what's .- what is the problem -- what do you see as what would be talking about the Department that this policy prohibits? A Maybe decisions that were made, the direction the department is heading. 0 Do you think those things are appropriate for public consumption? Do you think that they could reflect poorly upon the County? A I don't -- I just think it's a conversation, I don't think it would look badly on the County or the Department. Q But yet not just your firefighter friends, but you have other friends on that -- your Facebook page that could easily view those conversations, correct? A Yes. 0 And if they were critical of management's decisions or critical about your work assignments, you Page 76

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the vagueness of'the word derogatory. MR. LICHTMAN: WelL I can look it up if you want. I have my phone here. And I'm happy to do so, if you want the actual definition. HEARING OFFlCER SALMON: Mr. Wells, do you understand the question? THE WITNESS: Yes. sir. HEARING OFFICER SALMON: Then overruled, answer the question. THE WITNESS: Could you repeat it, please. BY MR. LICHTMAN: Q The question was, you're not permitted under current policy to say something derogatory that puts the County in a bad light to members of the public, anything that would reflect badly upon the County'.' A 1 don't -- yeah, you're right. Q Okay. And you yourself said that you wouldn't say anything derogatory about the County online either, on a social media network, correct? A That's me personally, yes, Q Okay. But yet you indicated that people in your department have come to you, they're scared to get on social media? A To say anything about the Department. Q To say anything about the Department?

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don't think that that could cause those other people to view the County .in _- in an unfavorable light? A Depending on how it's said, yes. Okay. Do you think it would be appropriate for you to take out a newspaper ad and communicate that you didn't like a particular decision Or would that also fly in the face of regular departmental policies against disparaging the County? A Well, I think under the First Amendment we are allowed to do that, if need be, But do you not have department- _. departmental policies that specifically prohibits you from putting the County in a bad light? MR. LEV: Objection, the policies aren't in evidence. HEARING OFFICER SALMON: Overruled. THE WITNESS: I-- believe so, yes. I BY MR. LICHTMAN: Okay. You haven't challenged those policies, have you? A No. Okay. How does this policy violate Section 447.307 Florida Statutes? A I don't know that one right off -- offhand. Okay. Well, in the charging document, you

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signed an affidavit, which indicated. quote, I've read the allegation in the charge and they are true and correct to the best of my knowledge. Specifically Paragraph 8 references •• I'm looking to see if it's .. Paragraph 8 references that the County rescind its policy, cease and desist from chilling emp Joyce rights under 447.307. Please indicate how this policy infringes -- do you know what 447.307 is'! MR. LEV: Objection, he -- he attested to the facts in the charge, not the legal conclusions and he's not a lawyer, HEARING OFFICER SALMON: Idon't know how this is helpful, quite frankly, Mr. Lichtman. MR. LICHTMAN: WeI!, it seems to me if they're making an allegation in a charge, and, in fact, I am presuming that the briefs will be addressing the issue of how this violates 447.307, since that's the specific point in the charge, that that would be relevant. Idon't think there's a free speech argument, because certainly that would be more ofa constitutional issue that the courts would handle, this is something under PERC rule 501(a). as well as undet 44- •• alleging a violation of 447.307, I

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the end of October that they were _. they were looking at it, and it was kind of an initial draft that came out and the actual GO carne out towards the I st of January.

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Q And there was another reason that policy was being considered, it wasn't just because the County didn't want to be viewed in a derogatory light, was if? MR. LEV: Objection. calls for speculation. MR. LICHTMAN: No, it doesn't HEARING OFFICER SALMON: Overruled. He's asking him if he knows. THE WITNESS: I don't believe there was any, except for •• for what -- things being put on social mediaBY MR. LlCHTMA,,\.[: Q Are you familiar with the John Kornbrust case? A Yes. Q Okay, HEARING OFFICER SALMON: Spell the last name. MR. LICHTMAN: Kornbrust, K-O-R-N·B·R-U-S- T, first name is John. HEARING OFFICER SALMON: Thank you. BY MR. LICHTMAN: Q And do you remember the circumstances surrounding that case? A It was before my time, but, yeah, I think I do, Page 80

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think it's directly relevant. HEARING OFFICER SALMON: I don't, because if you'll read 447.503, Subsection I, it tells you that the only unfair Iabor practices are those set forth in 447.501. Where you're going with this is not helpful. MR. LICHTMAN: Then I would ask just a -- just a clarification as to what the reference to 447.307 is in Paragraph 8, so I understand where the County is supposed to be defending itself. MR. LEV: Well, and f'11 object, it's late, Mr. Lichtman could have opened up a statute book as late as yesterday and read it, and I would object to eliciting testimony from this witness who is not a lawyer. HEARING OFFICER SALMON: I don't think that you're going to get the answer from this witness, Mr. Lichtman, he's already said he doesn't know. MR. LICHTMAN: Uh-huh. HEARING OFFICER SALMON: Move on. MR. LICHTMAN: I will. BY MR. LICHTMAN: Q The -. the policy was first -- when were you first made aware of this policy'! A [ believe it was an e-mail that Igot in toward

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yes, Q Okay. Do you recall that in that particular case, the officer in question posted himself in uniform on his Facebook page? A Yes. Q Okay. Do -. were you not made aware of the tact that part of the reason that the social media policy was brought about was to address specifically things such as that. and Admin 21 was also going to affect it? A That was the picture one, the photography -yes. Q Yes. A Yes. Q Okay. A That was -- that was a separate .- the photography and videography is a total separate one. Q But the issues of putting the County in a bad light was not a separate issue, was it? A No. Q Okay. You found out at the end of October that this was possibly coming about, correct? A Coming, yes. Q And I--you then communicated with David Hepker somewhere between that time? A Yes.

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Q And on December 3rd, did you receive an informational bulletin or a GO or any s- -- any proposed policy?
Yeah, it was a draft GO. Yes, Q Okay. And that was in Dec- -- December Srd, And then you met with Mr. Hepker on at least more than one occasion, correct, concerning the policy? A It was actually only one, because we -- we were having a hard time because of the holidays getting -meeting up. so we actually didn't meet until January, and that's when we had a whole list of things to go over, Q Okay. And the policy actually wasn't put into effect until what date? A It's effective date was January 3rd. It's right ._ I mean, it says -- 1 mean, December 3rd, it's right on the paperwork, it says effective date. Q But that was a -- it also says on _. if you're referring to -A When a general Q If you're referring to Exhibit 1 -- the policy attached to Exhibit I after the letter, that says effective date 12!3!201O? A Right. Q Does it not say draft across that? A It does, but it came out as a general order, a Page A

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Q It's Exhibit A to the charging document. It's now Joint 1. What is the effective date on that? A 1:24111. Q Okay. So from October 27th, 2010 through January 24th, 2011, what concern is raised by Mr. Lev was there in the immediacy of this policy being promulgated?
MR. LEV: Objection, I don't understand the question. I'm not sure the witness does. BY MR. LlCHTMAN: Q You were alleging - in -- in direct testimony there was talk about -- something about an emergency and you didn't like the way the Department was pulling it out -. putting out the policy. So what I'm asking you is, if the policy didn't go into effect until January 24th, 2011, and you first became aware of it in October -- on October 27th, 2010, what is this emergency argument? MR. LEV: Objection, the witness didn't say it was an emergency, the witness said Mr. Hepker said it was an emergency MR. LICHTMAN: And it -- and it-MR. LEV; -- and the hearing officer said I shouldn't get into what the emergency was, that's something that the County is going to raise in it"
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general order is something that goes out •• Q Pro--· A -- as an order. Q Produce that general order, please. Because we are not ._ r would like to see that. We have asked. There is no such general order, nothing went out at that time. So I'm asking you, please provide that so that we know it happened. A Well, I can -- I'll see ifI can get it for you. I mean, I have a copy of every- _. all the transmissions that 1 have are -Q Are you suggesting that this -- that says draft was effective 12!3? A Yes. Q So then why bother meeting on it at a later date? A Because they were receptive to doing -- to listening to our argument. Q In fact, the actual exhibit that y'all, meaning the Union, has put forth as the policy, what is the effective date on that? A 12 .. it's-MR, LEV: (Indicating.) BY MR. LlCH'ThL\N:

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defense. MR. LICHTMAN: But 1-- the County argues it's absolutely irrelevant and it was never raised in our affirmative defenses. So I -~ HEARING OFFICER SALMON: So we are we talking about it? MR. LICHTMAN: I bccause Mr. Lev brought it up, I felt the need I had to respond. HEARING OFFICER SALMON: For something that doesn't matter. MR. LICHTMAN: ! agree. HEARING OFFICER SALMON: Move on. MR. LICHTMAN: I have no further questions. HEARING OFFICER SALMON: Redirect? REDIRECT EXAMfNA nON BY MR. LEV: Q Just so we understand your testimony, what is your definition of communication that's critical of the County? A As far ~~as far as what kind of communications? Q Let's say somebody puts something on Facebook that's critical of the County, what would be your definition of critical? A Any -- I guess it would be any e-mail that ~=

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that's put out by any person with the County which were -- we shouldn't -- I mean, we're not doing anyway. The only thing that I can think of is a decision that's made by the administration, if somebody -- that somebody didn't like, if they put it on social media that they didn't like, for whatever reason, they could be disciplined for it. Whether, I mean -- it's -Q Are »A -- basically anything that they put out that they -- on social media that they don't like that the administration or the fire department does, they could be disciplined for. It doesn't let them say anything, basically. Q is your definition of critical the same as your definition of derogatory, do they mean the same thing to you? A Pretty much. Q All right. Are you aware of the County's definition of derogatory and has it been spelled out in anyplace? A Derogatory is anything that would make them -make the County or the Department look bad. Q That's what you think it means?

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should be able to voice their opinion. Saying it with a derogatory tone, Idon't know that that's right, Idon't know that that's wrong. Q Do you have a concern about people getting on Facebook and just saying they don't like something about the County's policies? A Under this policy they could -- they could be disciplined for it Q All right And does -- from your way of looking at it, if somebody says they don't like a policy, is that doing something derogatory? A No. Qis it putting the County in a bad light? A 1 don't think so, they're just -- it's their opinion, they do- -- they have an opinion that they don't like something. MR. LEV: All right. No further questions. RECROSS-EXAMINATION BY MR. LICHTMAN: Q If 1 could refer you to Joint Exhibit 1, which is the policy itself, the social media policy. Please show me where in that policy does it say that you cannot say something derogatory in the social medial policy? MR. LEV: If we're -- objection, if we're Page

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Q All right. And are -- are you saying you should or shouldn't be allowed to say things that -well, let me -- let me strike that. What is your understanding of what "look bad" means? A Um. .. Q I mean, is it the same thing as criticizing? A Yes. Q All right. So arc you saying you don't like the policy because it restricts your ability to criticize the Department? A Under this policy we can't criticize anything the Department does. Q Okay. Do you have any confidence that what you think makes the Department look bad is the same thing that the Department thinks would make the Department look bad? A They're probably two totally different things. Q Explain. A What I would think of making the Department look bad is -- is severely criticizing somebody for making a bad call or -- or some criticizing an -- an opinion, [ mean, that's -- everybody has that right to do that. Criticizing a policy that comes out people

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talking literally, the document speaks for itself. So, I guess -HEARING OFFICER SALMON: Overruled. MR. LEV: Well, now I object to the lack of clarity in the question, is he asking for the literal use of the word derogatory or some synonym for derogatory? MR. LICHTMAN: [thought I was clear, but I'll say it again. BY MR. LICHTMAN: Q Please show me where in the document, in the policy. is the word derogatory. in the social media policy? A The WOf- -- the word derogatory is not in there. Q Okay. Please show me in the document where the word critical of the Department is, anywhere in the social media policy? A There is no word critical. Q Okay. In fact, am I correct that the only speech that's prohibited is speech that is, according to 4. [ A, defamatory, obscene, slanderous or unlawful, as far as 4.1 A goes? A Yeah. Q Okay.

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MR. LICHTMAN: The witness brought it up, and he used it as the basi s that any written, auditory was the ._ was apparently his concern, not the defamatory obscene issue. so I'm trying to find out where the Union's rea) issue is here. THE WITNESS: It's both of them, HEARING OFFICER SALMON: I don't know about finding the Union's real issue, Mr. Lichtman, but you are correct that •• that Mr. Wells did make the statement and you should have a little bit of latitude to explore that. But just "- it's like Mr. Lev says, it's not part of the charge and I'm going to focus on -- on the charge. BY MR. LICHTMAN: Q How is it that "- do you understand what maintain proper discipline is? A Yes. Q Okay. So what do you think tends to interfere wi th the maintenance of proper discipline? I'm referring now to 4.1 B. A Well, discipline is handed down, it's •• that's _. whether somebody likes it or not, if they don't like it under this policy and what it says right there, I don't see where it would bother the maintenance of proper

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A I mean, but I would see defamatory and slanderous as the same thing as derogatory. Q Well, I supposed that's a subjective argument and I'm not going to get into that, because that's certainly your opinion. Do you know what to defame somebody is? A Yes. Q What is that? A To call in question their character. Q Okay. Do you realize that truth •• truth of a matter can be a defense to sl- -- defaming somebody, slandering them, libeling them? A Yes. Q Okay. Whereas. derogatory is saying something negative about somebody, correct? A Right. Q Okay. This policy doesn't prohibit you from saying something negative about someone, does it? A No. Q Okay. In fact, it's not this policy, it's not the social media policy that prohibits that, does it? A Well, J think if -- if you look at 4.2, it says any written, auditory or visual message communicated by an employee. Q 4.2 is a separate paragraph, and 4.2 says any

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discipline if somebody said something. Q Okay. A But under this policy, they could get in trouble for it. Q But this policy says, tends to interfere with the maintenance of proper discipline, and you just said, somebody says something about discipline they didn't like, that doesn't interfere with the proper maintenance, so how -" which is it, does it interfere with proper maintenance, at which point it would 0A I would think not, but I'm not the one making that decision. Q Has anybody ever in any way been disciplined for, under social media, tending to interfere with the maintenance of proper discipline? A Not yet. Q Okay. And give me an example of -- I mean, you're -- you're speculating here that it has even OCCUlTed would occur rather? or A That's why we're here, to hopefully stop it before it happens. Q I see. So before a problem exists, you want to avoid a problem? A (Nods head.)

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written, auditory and/or visual messages communicated by an employee through social media while utilizing County property or resource are the sole property of the County, what does that have to do with "" A We can't -" Q -- defamatory conduct? A We can't use=Q County property. A -- County property for it anyway. We can't even get on it on County property.

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First off Q "" and you -A But" Q You see a problem with saying that if you do anything on County property "A I can't »MR. LEV: Go ahead. BY MR. LICI-ITrv1 N: A Q I mean, to me it's apples and oranges, but you're making the connection. A I-MR. LEV: I guess the same objection as before. it goes outside the charge and it's -- 4.2 is not relevant

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A, Hepker, H-E-P-K-E-R. HEARING OFFICER SALMON: And you're duly sworn,

Q

What about damages or impairs the reputation

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No, it's clear to me. But,

I mean,

if --

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Mr. Lichtman, your witness.
MR, LICHTMAN: Thank you. DA VID HEPKER. having been firs! duly sworn, testified under oath as follows: DIRECT EXAMINATION BY MR LICHTMAN: Q David, please explain to the hearing officer Social media obviously was beginning to be a but I how it is that this policy came about? A significant concern, not just with our department, believe around the country. We had actually received in the past some complaints from citizens, who had actually seen their pictures of accidents and stuff that their loved ones were involved in posted an individual's Web site, for which we had to go and contact the individual to try to ask -- ask them to remove them. We didn't have a policy at the time, but we would go and ask people to remove the Web site because it was causing concern with some of the citizens. We also began receiving some citizen public requests for photographs of on-duty firefighters that .-.------1

people have a right to say what they want, whether it's their -- you know, the reputation of the Department not If you -- I mean, if you want to break it dOW11, I could -- you know, I could say something that -- that possibly could damage the reputation of the Department a family member or a friend -to

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But on cross we already discussed

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Is there -- Mr. Lev, any more witnesses?
MR. LEV: That was our last witness, HEARING OFFICER SALMON: The Union rests?

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were taken, and whenever for the photographs, because them on their personal firefighters emergency actually we would go to try to retrieve requests for the citizen, to track it down, that were taking of 2 3
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Mr. Lichtman, you want

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and obtain the public records

we were unable cameras.

many times it's the firefighters

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We would also have some complaints posing for pictures was still in progress.

MR. LEV: Hang around in case I need you in rebuttal. THE WITNESS: MR. LICHTMAN: MR. LICHTMAN: Okay. Are you ready? Yes. sir. Okay. We'll start with Mr. Good place start.

while the

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again, trying to obtain pictures taken. you know, on personal And Florida believe should law, which those pictures,

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HEARING OFFICER SALMON: David Hepker. HEARING OFFICER SALMON: witness. COURT REPORTER:

has a very broad public

while they're on duty, we the initial issue

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be made public to the people,

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Q

So taking that into account,

Would the court n.. 'porter please swear in the

that came about, how did that eventually. for a lack of a better word, morph into a separate social media policy, because A

Do you solemnly swear or

the Department didn't have one before that?
Correct, the Department before, didn't have one. firefighters articles that Well, we had also than -- as a case that you

affirm the testimony you're about to gi ve in this cause to be the truth, [he whole truth and nothing but the truth? THE WITNESS: I do. Thank you. Please state and spell ;24 ,
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had referenced

we had several

had posted themself

on Facebook wearing clothing

-- or using the that were

COURT REPORTER: your name for the record. THE WITNESS:

fire department's
department.

name while wearing

HEARING OFFICER SALMON:

issued to them •• official

of the fire on Facebook or social

David, D-A-V-J ..D, middle initial

Posting them themselves

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media where they were attem- -- have actually attempted [0 lure. you know, young women for sexual purposes, one of which was imprisoned, one of which was convicted of a felony, And, of course, the social media - following the social media, firefighter or supervisors were being disciplined and terminated around the country and, obviously. felt something obviously needed to be done in order to develop a policy, So a policy was drafted and then sent out to the personnel for review. Q Now. have you actually -- in the course of preparing this, was there any type of blog or any type of social media that you viewed where the Department was put in a bad light in any way? A I've actually, absolutely, viewed Websites that were very destructive to the Department and I've actually viewed Websites that were actually very destruc-tdestructive to the Union officials, Q Okay. So based on that, how -- how did you come about actually crafting the social media policy? AWe had looked at several departments or -- and I don't remember all the departments, but we had sent out and received back some social media policies from around the country, ultimately taking some of the language and

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Q And that -- that policy was sent out to all the membership -- I mean, actually, all employees, about a thousand employees, correct? AYes, just over a thousand. Q In the informational bulletin. which is Union's 2, I believe it is, Union's Exhibit 2, IB 1104, the date of that is January 5th, 2011 (hands documents), are you familiar with that? A Yes. Q Okay. Was that policy -- was that sent out on January 5th or had it gone out in a GO earlier, anything that you know of? A I don't recall it going out in GO, I only recall it going out on January the Sth, Q Okay. On January 5th, in the IB, it indicates in the second paragraph, am I correct that it says, you arc encouraged to review the draft, send your comments to division manager, David Hepker, via your chain of command by January 20th, 2011, correct?

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using some of the language from other departments to formulate our policy. Q And when you derived your policy, is the language fairly consistent with those other departments? A Yes. Q Do you feel it's stronger than the other departments? A I don't believe it was any stronger. Q Okay. Are there concerns that you have that -what -- the Union has raised a number of concerns relating to what they consider to be vague and overbroad about the policy. When you constructed the policy and drafted it, how specific were you with the provision so that you did not feel it necessarily stifled any type of speech that wasn't a lready restricted? A Again, we -- we modeled it after several of our policies that were in effect, we sent it out to multiple people to, you know, review and hopefully to, you know, offer suggestions and edit and, again, formulated ow' policy to where we believed it complied with, you know, our Department standards and it would not prohibit significant activities from the employees. Q And is it -- also, is this policy consistent with the County's main social media policy?

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That's correct. So before the policy was put into effect, the effective date, you would have received concerns or comments or anything of that nature, correct'] A Yes. Q Of the thousand employees that this was sent out to, how many inquiries or complaints or concerns did you receive'? MR. LEV: Objection. I guess, I object to them using some unlawful direct dealing with the membership as a defense to the case. So Ijust state that objection in for thc record. HEARING OFFICER SALMON: Okay. Overruled. THE WITNESS: I remember receiving one. BY MR. LICHTMAN: Q One out of a thousand? A Yes. Q And what was that inquiry'? A It came from a lieutenant that had just expressed some clarification of issues. I believe him and I talked several times by telephone, and that was all there was to it. Q Okay. MR LICHTMAN: No further questions. Thank you.

A

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r[EARING OFFICER SAL!'.10N": Cross-examination? CROSS-EXAMINATION BY ~1R~ LEV: Q You wouldn't have any knowledge about how many members contacted the Union about the policy, would you? A I donot. Q Or what they told the Union about how they felt about policy, you wouldn't have any know ledge of that? A Only what was expressed or not. expressed in our meetings and prior to this. In my meetings with the Union there was no expression that they were receiving significant complaints from anyone. That was -- that was not one of the issues that the Union brought up regarding their disagreement with the policy. Q So you're saying you don't have any memory of them saying a lot of their members were complaining -A No, I don't. Q -- in the course of meeting with you? A No, I don't. Q But you don't know whether they complained to the Union or not -A I do not. Q -- or in what numbers? A I do not.

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emergency. we have significant concerns, and County policies does not necessarily address an of those aspects, Q Does the County policy forbid social media activity that tended to interfere with the maintenance of proper discipline? A [ don't recall, Q All right. Did the County policy have language that forbid speech that damages or impairs the reputation and/or efficiency of the Department? A I don't recall if there's specific language to Okay. Or if that is language that we also added for specific reasons. Q I'm trying to recollect your testimony, you said there was a prior incident where a tire department -- an Orange County Fire Department employee posted his picture in uniform on his social media? A Yes. Q Was there one such incident or were there -had there been several? A Well, there's the -- there's multiple, if you go and look at the Facebook, there's multiple pictures of our -- on Facebook of our logo, of firefighters dressed
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Q Are you saying that the dep- -- the fire department had a prior policy dealing with social media? A I don't believe I said that. Q Okay. But you said the County had an existing policy dealing with social media? A Ibelieve it's a County policy, yes. Q And do the County policies apply to the fire department? A They do, yes. Q So if you had an existing County policy, why did you have a need for a specific fire department policy on social media? A Because it don't .- it doesn't address all of the independent issues that _. what I expressed, what I told you just a minute ago. It doesn't express that -- it doesn't talk about -- it talks about in general, general County employees, firefighter, of course. respond to accidents and in today's technology. just has happened in the cases that I've mentioned. In a '- in an incident, such as in Spalding, Georgia, they were .- the firefighter takes a picture and video of a dead body, a 23-year-old female laying in a car, hits his Facebook and publishes that automatically on the Web before they're even done working the

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in their uniform, of fire department personnel. But what 1 was referring to were the two that were -- or one which was found guilty of a felony and one was ultimately imprisoned for that use. Q And that was an Orange County firefighter? A Absolutely. Q All right. Were there any prior incidents not involving uniforms or logos, but firefighters using Facebook or another social media to malign the County or say something obscene in relationship to the County? A Yes. Q Okay. And approximately how many incidents Iike that had occurred? A Multiple. There were several sites that -- and J couldn't tell you if those sites are currently still up. They were referred to as Station 52's Web site that had continual derogatory remarks regarding the County. And then another one that was entitled -- had something to do with Station 52, that again was not only derogatory toward the Department, but it was also derogatory towards Department members and also Union members. Q What is your definition of derogatory? A That they -- they were obviously speaking against -- said some very, very unflattering, nasty, you

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know, horrific things about specific individuals. TIley would actually -- they would post cartoon pictures and characters, you know, of people doing things that I. don't believe those people actually did. All right. So your definition of derogatory means something horrific? A It could, yes. Or it could be something less than horrific? A It could be, correct. Now, it says in the policy. you shall no! criticize or ridicule or debase, what's your definition of criticize? A Speak against. MR. LICHTMAN: Objection, where doc'Sthat state that? MR. LEV; 4.1, first sentence. MR. LICHTMAN: It doesn't say derogatory, does it? You just said derogatory, I thought. MR. LEV: No, I just said criticize or ridicule or debase, MR. LICHTMAN: 4.1, could you show me where again, because I'm looking. MR. LEV: All right. Employees of the

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All right. $0 does criticize mean the same thing as ridicule? A I would probably have to look up the definitions. Q Or the same thing as debase? A I would -- again, I would have to look up the definition if you're actually asking me=All right. A -- if they mean the same thing. Well, here's One for you, how about interfere. [ends to interfere, do they mean the same thing? A I think they're -- one can interfere and one can tend to interfere. Are they two different things? A Could be. Q How about •• what does proper discipline mean? A I think it depends in what context it's used in. How about impairs the efficiency of the Department? A I think certainly some of the examples I've already given are good examples of impairs the efficiency of the Department. What if somebody just criticizes a policy, could that impair the efficiency ofthe Department?

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the reputation of the Department. its policies, its officers or other employees, through speech, writing or other expression, when such speech, writing or expression; A, Band C, are you with me? MR. LICHTMAN: Yeah. BY MR. LEV:

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Q All right. So what is your definition of criticize? A Again, speak against or ridicule, I'm sure there's many other words that obviously I can't think of right now. Q Does criticize and ridicule mean the same thing to you? MR. LICHTMAN: Objection, what -- what is the relevance of this? MR. LEV: I'm trying to find out whether this policy is clear and specific and has a clear and specific meaning to people or whether it's overbroad. MR. LICHTMAN: Mr. Salmon? HEARING OFFICER SALMON: Sir. MR. LICHTMAN: I made an objection to be responded, is -- is the objection sustained? HEARING OFFICER SALMON: Overruled. BY MR. LEV:

Depending on how it's done, yes. And you'd be the judge of how it's done and whether it falls under the policy or not? A Not necessarily. It could be their -- one of the assistant chiefs or supervisor. Q All right. And you would agree that there's been no definitions provided to the bargaining union members defining criticize, ridicule, debase, interfere, tend to interfere, proper discipline or impairs the reputation or efficiency? A If you're asking if it's in that policy, I'd have to look ifthere's a definition section in the policy or not, and I could>- if that's what you're asking me. Q Is there one? A That's what I'm saying, if you want me to look at the policy, I can answer that. MR. LICHTMAN: (Hands documents.) That's it. THE WITNESS: Regarding the words that you indicated, no, sir, there's no definitions in the policy regarding that. BY MR. LEV: All right. MR. LEV: I have no further questions. HEARING OFFICER SALMON: Redirect?

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REDIRECT EXA.1vllNA nON BY MR. LICHTMAN: Q In the policy, the first line says, purpose, did you define purpose, in the policy?
A Yes. Where -- and that's by this, correct (indicating), the statement to protect fire employees? A 1.1, yes. Q Okay. Did you define the word negative effects or negative? A In the policy? Q Yeah. A No. Q Did you define the word effects? A No, Q Did you define the word consequences? A No. Q Do you think that firefighters weren't able to figure out what that meant because you didn't define those words? A I would say judging by only receiving one inquiry, that they obviously understood the meaning of the policy, Q And is it possible •• do .- obviously you have computers at the stations? __

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Is utilities a paramilitary organization? A Iwould not consider that a paramilitary organization. Q What about growth management? MR. LEV: Objection, it's not relevant, it's argumentive and everybody knows .MR LICHTMAN: Actually, it is relevant, because he specifically pointed out that the County policy, what was the need for a more specific policy, and I would like to be able to have my witness testify to that. MR LEV: Well, we'll stipulate that the only paramilitary departments in the county are police -or I should say sheriff and fire. MR. LICH1MAN: We don't have a sheriff department, he might be referring to corrections, in terms of Orange County Government, but.. MR. LEV: Well, they're called the Orange County Sheriff's Department, I follow your point. B_Y_ MR_. LICH1MAN: _ Page 112

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Yes. So if somebody didn't under- -- understand the word criticize, could they look it up online? A Yes. Q Or ridicule? A Yes. Q Okay. Your firefighters do have to pass tests to become firefighters, correct? A They do. Q Okay. Is the fire department a paramilitary organization? A We consider it such. yes. Q And why is that? A To maintain, obviously, good order. not only in the station, but on the emergency operations and fire ground and rescue scenes. Q And that's why you have a chain of command? A It is. Q Are you familiar with other departments throughout the county? A Fire departments or -Q No-· A -- County department? Q County departments, actually, within the county.

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Q Again, is there a reason that you felt the need that this that your department have a special policy that was consistent with County policy, but was more descriptive? A Absolutely. Q And what was that reason? A Again, all the reasons that Icited in the beginning, all of the things that were taking effect All of the things that we have already encountered through social media. All of the people -- several of the people which have had to have been terminated thr- -- because of actions that they had done through which -- portion of which were through social media. And, again. that's the necessity to, you know. try to prevent some of that and maintain order in the fire department. MR. L1CHTMAJ";: All right. No further questions. Thank you.
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HEARING OFFICER SALMON: Recross? RECROSS-EXAM INATlON BY MR. LEV; Q Prior to the iuitiation of this policy, how
many firefighters had you terminated for speech on a social media site?

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Proposed findings of fact must comply with the rule. Copy of thi s rule may be obtained from the clerk. Statements filed after the close of the hearing, which are not dearly designated as proposed findings of fact, will be considered by me as argument rather than proposed findings of fact. AU citations to the record and post-hearing documents must be to the official transcript of these proceedings, which is made by the court reporter. You may desire to purchase a copy of the transcript from the court reporter, because the Commission will not be providing you with a transcript. Please speak to the court reporter concerning transcript availability and cost if you desire to obtain a copy of the official record. If any parties desire that corrections be made to the official transcript. please submit all proposed corrections to me and not to the official reporter. My recommended order _. COURT REPORTER: there.

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Not putting your logo on it or they're wearing the uniform, but just what they said on a social media site? A Trying to recall, I don't recall any. Q All right. Or even disciplined for what they said on a social media site, prior to this policy? A That, I couldn't tell. There's a -- you know, we track len years, they very well may have done some type of discipline or observation forms for previous issues like that. But I couldn't tel! you the direct answer to that, the number, MR. LEV: No further questions. HEARING OFFICER SALMON: Thank you very much, Next witness. Mr. Lichtman. MR. LICHTMAN: There are no further witnesses. We rest. HEARING OFFICER SALMON: Me Lev, do you have any rebuttal? MR. LEV; No, sir. HEARING OFFICER SALMON: Okay. So let's go through, we have one .- and agree to all these documents, one joint exhibit, and two Union exhibits admitted into the record; is that correct? MR. LEV; That's correct.

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HEARING OFFICER SALMON: Mr. Lichtman? MR. LICHTMAN: That is correct. HEARING OFFICER SALMON: Does any party desire to present anything further, on behalf of the charging party, Mr. Lev? MR. LEV: No, sir. HEARING OFFICER SALMON: On behalf of the respondent, Mr. Lichtman? MR. LICHTMAN: No. HEARING OFFICER SALMON: At this time I'm ready to close the hearing. Does any party desire to offer to oral argument in lieu of briefs to the hearing officer, Me Lev? MR. LEV: No, sir. HEARING OFFICER SALMON: Me Lichtman? MR. LICHTMAN: No. HEARING OFFICER SALMON: Under Florida Administrative Code Rule 28, dash, 106. dot, 215. all parties of record may file proposed findings of fact, proposed orders or briefs within 15 days from the close of the hearing. A copy of any document filed must also be filed to the other party and a statement describing when this was done must be filed with the clerk at the time the document is tiled.

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HEARING OFFICER SALMON: My recommended order will be issued no more than 45 days from today, unless my time for issuance is extended by the Commission with the consent of all parties. 1 would like to thank the parties very much for their cooperation in this matter, The hearing is adjourned. It is 11:27. Off the record. (Whereupon, the proceedings were concluded at 11:27 a.m.)

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CERTIFICATE OF OATH

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STATE OF FLORIDA:
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COUNTY OF ORlI..NGE:
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I, LISA M. TROMBLY, a Court Reporter and Notary Public, State of Florida, do hereby certify that the witnesses in this matter, personally appeared before me on June 17th, 2011 and was duly sworn.

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N otary Public- State of My Commission No. DD 886496 Expires: June 5, 2013

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CERTIFICATE OF TRANSCRIPT STATE OF FLORfDA: COUNTY OF ORANGE: l. LISA M. TROMBLY, a Court Reporter and Notary Public, State of Florida, certify that I was authorized to and did stenographically report the proceedings; and that the foregoing transcript, Pages I through 118, is a true and accurate record of my stenographic notes. I further certify that [ am not a relati ve, Of employee, or attorney, Of counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action. Dated this 21st day of July, 2011.

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