JEFFREY H.

BOILER
Attorney at Law A Sole Proprietorship
42919 Deerhorn Rd Springfield, OR 97478 Phone: (541) 683-1901 www.boilerlawfirm.com

Attorney Jeffrey H. Boiler

Legal Assistant Dana Lynn Boiler

November 18, 2013 BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED; BY EMAIL kathryn.figley@ci.woodburn.or.us; teresa.alonsoleon@ci.woodburn.or.us; lisa.ellsworth@ci.woodburn.or.us; peter.mccallum@ci.woodburn.or.us; jimcoxlaw@yahoo.com; frank.lonergan@ci.woodburn.or.us; eric.morris@ci.woodburn.or.us; scott.derickson@ci.woodburn.or.us Mayor Kathryn Figley; Councilors Teresa Alonso Leon, Lisa Ellsworth, Pete McCallum, Jim Cox, Frank Lonergan, and Eric Morris; and City Administrator Scott Derickson City of Woodburn City Hall 270 Montgomery Street Woodburn, OR 97071 NOTICE OF TORT CLAIM Claimant: Clients : Woodburn Police Officer Jarrod Bowers Woodburn Police Officer Peter Lichte Woodburn Police Officer Daniel Kelly Woodburn Police Officer Jarrod Bowers October 17-19, 2013, and ongoing ORS 30.275(1)-(5); ORS 695.199-204 et seq; ORS 166.715 - .735 et seq.

Date of Loss: Statutory Authority:

Dear Mayor Figley, Councilors Alonso Leon, Ellsworth, McCallum, Cox, Lonergan, Morris and Administrator Derickson:

Purpose of This Notice and Service Method This is a notice of tort claim on behalf of Woodburn Police Officer Jarrod Bowers, in his individual capacity and not on behalf of the Collective Bargaining Unit of which he is a member. Due to the issues of public concern summarized in part below, your respective roles under the form of organization specified in the Woodburn City Charter, and the fact the claimant is a presently serving certified police officer in your City, this notice of claim is being served on each of you, with courtesy copy to City Attorney Bob Shields. Related Clients Please also note that I represent two other presently serving certified police officers currently employed by the City of Woodburn, and have previously provided the City Attorney with written notice of representation by our office of each of the officers named as clients on the first page of this Notice. While Officers Lichte and Kelly are not claimants under this Notice of Claim, they are similarly situated in several respects. Civil claims available to them arising in part from the ongoing and well-established conduct of certain of the officers, agents or employees of the City of Woodburn discussed below, will be the subject of separate notices of claim to follow. Those notices of claim should be read together with this notice, as the litigation foreseen will include all three officers as named Plaintiffs. Related Pending Union Matters Distinguished Finally, please understand that I do not represent the Collective Bargaining Unit of which these officers are members. This claim is given on behalf of the Claimant individually, for claims personal to him, and not on behalf of his Union. The Union, however, has filed a grievance of recent retaliatory conduct against Officer Bowers handed down, which the evidence suggests is a part of the civilly actionable misconduct outlined in this notice. The grievance is being pursued by Union membership and Union Counsel under separate rules governing grievance of violations of the Collective Bargaining Agreement between the City of Woodburn and the Woodburn Police Officer’s Association. This notice is outside the scope of jurisdiction of that grievance, personal to Officer Bowers, and is not a Union claim.

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Claim Statement As required by ORS 30.275(4)(a), this is formal notice that a civil claim for damages and any injunctive relief necessary in the circumstances is or will be brought against the City of Woodburn and certain of its officers, agents and employees, including without limitation Sgt. John Mikkola and Capt. Jason Alexander, for the reasons and under the facts and circumstances summarized in part below. Time, Place and Circumstances Giving Rise to Claim This notice of claim is made necessary by an ongoing pattern of unlawful conduct engaged in by Sgt. Mikkola, Capt. Alexander and other officers, agents and employees of the City of Woodburn Police Department, summarized in part below. The summary of facts and circumstances given below is by way of example and not an exhaustive list of related claims, actions and personnel who are able and willing to give evidence under oath concerning these claims. Furthermore, this summary is not intended as an exhaustive list of conduct giving rise to the claims specified in this Notice, but serves to give specific information for the purpose of investigation of this claim and those to follow by Officers Lichte and Kelly. Plain Language Summary Officer Bowers is a Marine Corps combat veteran of the current war being fought in the Middle East. He was honorably discharged and became a police officer first in Idaho, then in Woodburn. Since his hire he excelled, made Detective, and was relied upon as a sniper for the special response tactical unit maintained by your City Police Department for particularly dangerous situations. This extra duty alone calls for sound judgment, skill, intelligence and the trust of his fellow officers. In all these jobs he excelled but came to see while under Captain Alexander’s command in Detectives the Captain and others under his command verbally and otherwise abuse female victims of crime, improperly protect others properly accused of crime, and discontinue known, valuable ongoing criminal investigations in which Det. Bowers participated until the Federal Task Force was disbanded. This task force was disbanded in part due to Capt. Alexander’s direct action, as discussed below. Capt. Alexander then marginalized and ultimately
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punished with sham personnel charges both Det. Bowers and other officers who questioned this course of conduct, both now and in the past. In short, this effort to marginalize Det. Bowers wasn’t the first time Captain Alexander and others within the command structure at Woodburn P.D. used their official position to impose their personal will over the dictates of sound law enforcement principles, and to conceal wrongdoing by friends or management associates within the Police Department. As with other several previous incidents involving the same cancer in Department management summarized here, Det. Bowers was ultimately investigated repeatedly, suspended, demoted, and punitively reassigned, in substance for articulating his concern about serious official misconduct or the good faith basis for his belief that such existed. In substance, it was for Det. Bowers’ resistance to this type of misconduct that he and others similarly situated have been punished or threatened into silence. The next logical step if this serious problem is allowed to continue, will be for this uncontrolled renegade group within your Police Department to further marginalize Ofc. Bowers and others, then use this “progressive discipline” as ground for ending Ofc. Bowers’ career. This is going to have to be given a day in Federal Court, and not only in arbitration, for the matter has gone too far. Facts and Circumstances Giving Rise to Claim Selected Chronology Officer Bowers came under Captain Alexander’s direct command in Detectives in or about November, 2011. He was thereafter repeatedly subjected to harassment at work, obscene and publicly humiliating sexual suggestions from Captain Alexander to Ofc. Bowers, undue criticism of his work, and ultimately deliberate mis-characterization of his performance, actions and motives, culminating in the recent suspension and demotion. This is just the tip of the iceberg, however. Prior to this time and extending for some time into the past beyond Officer Bower’s circumstances, the City of Woodburn Police Department managers had become aware of a serious ongoing management problem within the Department, driven by a climate of fear and distrust, and fostered by Captain Alexander and his then-close friend
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and fellow Woodburn Officer, Sgt. John Mikkola. Captain Alexander, Sgt. Mikkola and others over time abused the internal investigations process within the Police Department to punish those who interfered with their unbridled discretion, both as to on-duty and off-duty matters, including concealment of known criminal acts by Sgt. Mikkola previously reported to the Chief in writing by my office in 2010. At the same time, the existing management structure of command within the Police Department used express or implied threats of termination, suspension, demotion, and/or probationary status to enforce a climate of fear among those officers who had reason to question the legality and motive of these actions. This was designed to conceal and in some cases reward unlawful activity by Police Department managers or those they wished to benefit by abuse of their discretionary authority as Police managers, while controlling the flow of information to the Mayor, City Council and outside law enforcement agencies having dealings with Woodburn P.D. This command structure has also regularly abused the personnel investigation processes within the Department’s policy manuals to make “policy violation” personnel charges against targeted officers, including Officer Bowers. The same technique was utilized against Officer Lichte several years ago, resulting in his notice of claim, later thought to be settled by the Chief’s agreement to remove the proposed discipline against Officer Lichte for “policy violations” and return all related file materials to Officer Lichte. Command failed even in this meager task, which is the subject of more detail in Officer Lichte’s notice of claim to follow shortly. Officer Bowers observed this retaliatory, hostile and punitive tendency in command when Captain Alexander inexplicably ended Bowers’ participation in the Federal organized crime task force in which he was then serving, at a crucial time in 2012. Captain Alexander once given command over the Detective Division resisted Federal requests for Officer Bowers’ continued assistance to the task force. He also verbally and obscenely abused Det. Bowers repeatedly in the presence of others, as noted with specificity below, and continued to conceal known criminal sexual misconduct by his friend, then-Sgt. John Mikkola, which had occurred prior to 2010. During this time, Captain Alexander also caused many multiple, minor “policy” violation charges to be so repeatedly brought against Det. Bowers, that Bowers requested administrative leave lest his
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simple arrival at work result in yet another investigation at the behest of Captain Alexander or those working with or through him. There he stayed for the last five months, not working, while this important “investigation” of his alleged disparagement of fellow officers (all in command and all for official misconduct reported to other sworn officers) took place over nearly five months. During this extended period of administrative leave, Chief Russell allegedly ordered an administrator to edit the amended findings of fact against Det. Bowers 13 times, in an apparent attempt to “justify” Bowers’ recent demotion, suspension without pay and return to Patrol Division at substantial reduction in pay. The resulting “findings”, which ignored obviously relevant facts and made conclusions not warranted by the evidence, was handed down only last month. As a result, Det. Bowers ultimately was demoted, suspended a week without pay, and transferred to graveyard shift Patrol. The findings justifying this action grossly mis-characterized the evidence, came to unfounded conclusions, and left completely untouched the serious issues of corruption and official misconduct evident from a series of incidents involving or reported by Det. Bowers, Ofc. Lichte and others prior to Det. Bowers ever becoming aware of the history of abuses summarized here. These only began to become apparent once he served in Detectives under Captain Alexander’s direct command. Examples of Facts and Circumstances Contributing to Claim The unlawful or civilly actionable conduct complained of constitutes one or more predicate acts of racketeering activity set forth in ORS 166.715-166.735, as well as prohibited retaliation under Oregon’s civil rights and “whistleblower” related statutes, set forth generally at ORS 659A. 199-.240. In addition to the above summary, this conduct specifically includes, without limitation: 1. Harassment, retaliation and punishment of officers who report a good faith basis for belief that one or more serving police officers of the City of Woodburn, outside Union membership, has committed, attempted to commit, or conspired with others to commit crimes, including Unsworn Falsification, Official Misconduct in the First and Second Degrees, Witness Tampering, Attempted Sodomy, or inchoate versions of each of these crimes. This has been done repeatedly by command officers including Captain Alexander and Sgt. Mikkola, with

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Chief Russell’s full knowledge, consent and sometime active participation; 2. Holding scrupulous officers up to ridicule and demeaning sexual characterizations for engaging in clearly lawful and valuable law enforcement activity. This activity involved the abuse of female victims of crimes involving sexual abuse and invasions of the victim’s personal privacy, including but not limited to obscene abuse of Officer Bowers and a female confidential informant by Captain Alexander, more than once, in the presence of Bowers and others employed by the Police Department. An important example includes Capt. Alexander’s repeated public statements to Det. Bowers regarding a female confidential informant: “Why don’t you just fuck her and get it over with”. Then-Det. Bowers was and is married with children and is a devoted husband and father. The humiliating sexual comments made by Captain Alexander to him were not isolated single instances, and are not explained away as merely in keeping with Captain Alexander’s obvious lack of social graces. Rather, the statements were obscene, vicious, plainly false, and designed to create a false impression among those hearing them. This was done to harm Det. Bowers in the minds of fellow officers, his family and others. One notable and separate example includes Captain Alexander subjecting a second female to abuse, not an informant but a victim, whose intimate photographs were among recovered property in that case. Nude photographs of this victim were submitted to casual review by command supervisors, sometimes in the victim’s presence...a victim who had done no wrong and whose nude image had been surreptitiously taken. Having no good reason to do so, Captain Alexander reviewed these nude photographs in the victim’s presence, with other male officers present, thereby humiliating the victim and compounding the damage already done to her. Bowers later interviewed this victim as part of his regularly assigned duties. On learning of the demeaning treatment this victim experienced with Captain Alexander present, Det. Bowers objected to his immediate supervisor. No action was taken. Det. Bowers was soon thereafter placed on Administrative Leave, ostensibly for “other” reasons.

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It is important for the Mayor and Council to note: this incident did not involve a Confidential Informant of questionable past. It directly involved a female crime victim guilty of nothing. She was systematically humiliated in the presence of command officers, a telling contempt toward women which puts in context the protective actions of Captain Alexander and others toward Sgt. Mikkola’s shocking sexual escapades with his then-Probationary Officer, Dan Kelly, discussed in detail below. This is the type of conduct which is “forbidden” to discuss among officers lest they violate your City Policy Manual prohibiting disparagement of fellow officers. The hostility in the workplace created by such action seems obvious to all but command in your Department. This technique is and has been repeatedly used by WPD command in one form or another, and has resulted in a corporate culture of fear among those officers who resist either in their own interest or the interest of the public. Hostile Workplace and Failure to Report Brady Issues to the Prosecution The type of demeaning, unfounded and disgusting characterization provided by example above, plainly creates a hostile workplace and calls into serious doubt the entire credibility of Capt. Alexander and others in command at WPD on other serious matters relating to obstruction of justice. For example, the prosecutor in your County has a new policy regarding investigation and disclosure of any materials which may have a bearing on any police officer’s credibility under Brady v. Maryland and its interpreting cases. Brady is said to require in general certain disclosures by prosecution to defense in a criminal case, where a record exists of an officer’s credibility in a criminal case in which he may testify. Despite Brady and its related cases, and despite the local District Attorney’s policy now implemented with others to require disclosure in some cases of the most remote and minute incidents decades old bearing on credibility of an officer, there has been no apparent effort of any kind by your command structure to call these serious, ongoing and
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systematic abuses to the attention of the District Attorney in your County. Each of the examples above have a direct bearing on the credibility of Captain Alexander and others, spanning a period of years, yet nothing has been done and diligent officers like Ofc. Bowers continue to be marginalized and punished by the very type of officer misconduct Brady was designed to expose to the criminal defense Bar, when the officer’s credibility will be an issue in a criminal case. Not only has Woodburn allowed this wound to fester, but this omission has resulted in a widely held belief outside Woodburn P.D. that your Department is being represented by Captain Alexander and other command officers in a way which brings discredit on the profession and on the City. This fact has been confirmed by outside investigation. This loss of trust from within the law enforcement community will be evident in Court proceedings which follow this notice, if past experience in attempting to deal constructively with this problem is any guide. The conduct of protecting misconduct among selected command authorities has obvious implications for necessary disclosures the prosecution must make under Brady v. Maryland and related cases, involving bases to impeach a police officer witness. Concealing this type of conduct not only creates a very hostile workplace, but also has obvious implications for any prosecutor pursuing Woodburn cases. It also calls into question whether the crime of Obstruction of Justice or similar crimes against public order or administration of justice have been committed under State or Federal law. These are the net results of allowing this climate of fear to continue. These factors, and the loss of trust within law enforcement, also obviously has serious implications for the Department’s ability to work co-operatively with other jurisdictions, including the U.S. Justice Department in just one notable and important example outlined above. In sum, it appears Captain Alexander’s misconduct and the similar conduct of command officers of WPD outlined in this
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notice, is not only tolerated, but apparently rewarded and endorsed by the serving Chief of Police and others in command sympathetic to the interests, friendship and allegiance of Capt. Alexander and his cadre of friends and associates inside and outside the Police Department. 3. Use of multiple and unfounded complaints against scrupulous officers, giving rise to repeated, multiple and sham “internal investigations”, including investigations which end in discipline such as demotion, suspension and threats of termination. These so-called “investigations” are designed not to address bona fide work concerns of management, but to create a work record for the targeted employee, giving the false impression that these “whistle-blower” officers and other similarly situated are somehow deficient in performance, when the opposite is true. This technique is and has been in the past employed by management level employees at the Police Department to justify serious discipline, on pretext, in order to conceal the true purpose of the proposed “internal investigations”, “administrative investigations”, or punitive re-assignments and demotions by Officers. It is regularly used against experienced, good officers who believe, in good faith, that an evidentiary basis exists for investigation of official misconduct or other misconduct by management level police officials of the City of Woodburn. The Woodburn Human Resources Department has been so used in the recent past regarding complaints of hostility in the workplace and officer safety created by this culture of lawlessness becoming apparent within Woodburn’s command structure. Officers interviewed in that investigation have plainly been subject as a result of their scruples, to hostile and leading questions by command and their agents, designed not to get to the root of the matter or investigate known facts, but rather to “find out what they know” so the truth can effectively be ignored. This is how your City’s police powers are being used by those who manage it and are entrusted with taking seriously the reports of serious officers and others who provide specific information of specific misconduct. The net result is: nothing is done, and the problem worsens.
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In Officer Bowers’ case, one of these techniques was employed to create a pretext for the disbandment of the Federal task force investigating organized criminal activity in the metro area, including Woodburn, which led to Det. Bowers’ removal. Det. Bowers’ work was known to be critical to successful prosecution according to Federal authorities with whom I have spoken prior to sending this Notice. Det. Bowers was later placed on Administrative Leave while command “investigated” his alleged policy violations, culminating in the punitive sanctions noted above. The facts and circumstances investigated regarding this particular use of the technique outlined above suggest Capt. Alexander did not merely use bad judgment in pulling Det. Bowers from the task force. Rather, the evidence suggests this was done at least in part in order to either protect individuals with long-term dealings with the Police Department, to defeat or improperly interfere with the ultimate purpose of the Federal investigation, or both. In any event, his conduct was clearly inherent in his office, was misconduct, and was intended to benefit himself and perhaps others, while harming Officer Bowers or innocent victims of crime noted above by way of example. This conduct precisely fits the definition of the crime of Official Misconduct, a predicate act of civil racketeering among those that will be brought naming Captain Alexander and other WPD employees in a number of particulars, including some summarized in this notice. This is merely one example: many others abound with the clients identified here, as well as others. 4. Restriction of use of known, valuable confidential informants by Captain Alexander. This technique has been employed by Capt. Alexander against Officer Bowers as recently as August, 2012, while he served under Captain Alexander’s direct command. At that time Capt. Alexander ordered Det. Bowers not to use a valuable female informant in his investigations. There was no apparent reason for this action and it had the net effect of interfering with the ongoing investigations of Det. Bowers.
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This female informant was shortly thereafter the victim of alleged forcible rape by a resident of the Woodburn area, one with long term ties to the Police Department. When this investigation was turned over to Marion County S.O. by Det. Bowers with the knowledge and consent of his immediate Woodburn supervisor, Capt. Alexander appeared to be angry about the investigation and at one point asked the female victim: “What are you trying to get out of this”, or words to that exact effect, suggesting at minimum a shocking lack of empathy or concern for this sexual assault victim. The Marion County Sheriff’s Office thereafter obtained a warrant to arrest the perpetrator and did so, thereby defeating Capt. Alexander’s attempt to call the credibility of the victim into question by his sarcastic and offensive remarks summarized above. For his diligent work, Officer Bowers has now been suspended, marginalized by Command, made the butt of jokes about being “PTSD” (apparently due to his honorable service in time of war in the U.S. Marine Corps). Most recently, he has been demoted from Detective, suspended for three days without pay, and returned to Patrol Division on Graveyard Shift, at permanent reduction in pay from his former rank. In this example, for pointing out the potential impact on prosecution and discussing the matter with the District Attorney’s Office with jurisdiction in the matter, Det. Bowers was first marginalized by Capt. Alexander, and was ultimately transferred out of the Detective Division on a pretext. This reduced his minimum pay by 7%, completely altered his shift assignments, and took away his valuable input to a Detective Division obviously in need of his abilities. He returned to duty only weeks ago, after serving his ‘suspension’ without pay. 5. The Chief of Police and other management level employees of the City of Woodburn have deliberately turned a blind eye to the most serious types of abuses of office in which a police officer can be involved, and punished or retaliated on pretext of “policy violations” the officers who objected to this unlawful or unethical activity.

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The openly tolerated misconduct by command at the Police Department ranges from sexual misconduct bordering on attempted sodomy by Sgt. Mikkola, summarized in part in this notice; to removal of Officer Bowers from a Federal task force major crime team this last year, in such a way and at such a time as to call into question whether his removal from the task force on alleged ‘fiscal’ grounds, was intended to undermine the pending Federal criminal investigation of which Det. Bowers was an important part. Removal of Det. Bowers occurred at a juncture in the investigation known by Captain Alexander to be a critical time to complete the ongoing criminal investigation successfully. The latter circumstance also suggests Capt. Alexander’s actions led Det. Bowers to be removed from his task force duties deliberately to undermine this investigation due to its Woodburn connections, despite the fact that Federal authorities involved in the investigation essentially characterized Det. Bowers’ ongoing work on the task force as necessary and valuable to successful prosecution of the criminal enterprise under its investigation. I have spoken with involved Federal authorities to verify Officer Bowers’ excellent work and value to the ongoing investigation, and have verified that Federal authorities informed command of the impact of their decision shortly after it was made. Despite this knowledge, Officer Bowers was then placed on Administrative Leave for months, then recently suspended for three days for “policy violations”. This was immediately grieved by the Woodburn Police Officer’s Association through their legal counsel. Our investigation reveals that this course of conduct is not isolated or limited to one officer or one victim or set of victims. It bespeaks conduct simply not permitted of a sworn, certified police officer in Oregon under DPSST standards. It involves the technique of first marginalizing, then punishing on pretext any officer who dares disclose his or her good faith basis for concern that officers in command at Woodburn may be breaking the law, or otherwise derelict in their duties, perhaps in a systematic way and for unlawful purposes.
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This abuse of the personnel evaluation system in the form of either unlawful retaliation or other official misconduct or abuse of governmental administration has been in place at Woodburn P.D., and has been commonly and regularly applied to multiple officers, over an extended period of time. It includes but is not limited to each of the three officers named as clients on page one of this Notice, nearly always as obvious retaliation or punishment for plainly lawful input clearly within the bounds of any valid policy designed to protect against mere internal gossip, when the officers’ actions are clearly designed to do nothing but protect the citizens of the community and uphold the law. 6. Tolerance and concealment by command at WPD of both private and official misconduct, sometimes criminal in nature, by Sgt. Mikkola. This conduct has been furthered, aided and abetted by his then-close friend and confidant, Capt. Jason Alexander. Examples include: a. Sgt. Mikkola seeking a ride to his home, while intoxicated, from a then-probationary and off duty Woodburn police officer, Dan Kelly. Officer Kelly and his intimate female friend, a reserve police officer from a Portland metropolitan area police department, gave Sgt. Mikkola a ride home as requested, due to his condition. Also at his request they agreed to stay at his home overnight, and went to bed alone in a separate bedroom. While the couple was alone in Sgt. Mikkola’s home that night, Sgt. Mikkola burst in sexually aroused, and attempted to sodomize the female companion of Officer Kelly, in Officer Kelly’s presence. Officer Kelly and his companion refused to allow this assault to be consummated, and the response from command set forth below followed shortly thereafter. b. Capt. Alexander’s later response to this incident was to coyly approach Officer Kelly, place his arm around him, and ask “Why is Pete Lichte so concerned with your [Kelly’s] sex life”, or words to that exact effect. At the time, Mikkola and Alexander had been friendly for years at the Department, and were known to be close.
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Mikkola apparently chose Kelly and his companion for the criminal activity described above first, because Kelly’s girlfriend, was herself a reserve metro area police officer. Second, he did so because he knew he could cause Kelly’s termination from employment, without cause, as a Woodburn probationary Police Officer under his supervision. He knew he could use this fact to pressure Kelly into silence, or cause him to minimize the incident. Third, he mentioned Officer Lichte because he knew Officer Lichte had been subjected to multiple and similarly unfounded personnel investigations and was fighting them through union counsel and our office. In this context, Capt. Alexander’s actions seem clearly visible as a further attempt to marginalize Lichte, himself an Army Special Forces veteran with an excellent police service record spanning over 15 years at the time. In short, everything about what Capt. Alexander did to conceal and cover up the actions of Sgt. Mikkola in just this one instance, is consistent with the characterization of the lawless culture resulting in the hostile and dangerous workplace command has allowed to continue and grow since this incident. Capt. Alexander first told Officer Kelly to contact Sgt. Mikkola about the incident. When Kelly did so, Mikkola confronted Kelly angrily, threatened him loudly and in a parking lot open to the public, with an internal investigation. He did so while Kelly was still a probationer...and therefore subject to termination without cause. After this confrontation Alexander again met with Kelly under circumstances which strongly suggested to Kelly it would be in his interest to minimize the incident, a fact which Woodburn’s new Human Resources Director, Mr. Hereford, seized upon during the supposed impartial investigation he conducted last summer into claims that WPD was maintaining a hostile workplace, and retaliating unlawfully against selected officers, creating a dangerous working environment. It is therefore also clear in context that Alexander by his actions noted above, was working with, for or on behalf of his friend, Sgt. Mikkola, by attempting to
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improperly influence Kelly, marginalize Lichte, and to protect Mikkola, then also in a command rank, from criminal or civil charges. This makes them coconspirators for civil litigation purposes, and their command stature demonstrates endorses, conceals and improperly protects command officers who abuse their position and rank for personal gain, or to harm others within their own Police Department. Lest counsel or those interested be tempted to suggest the facts of this incident are subject to dispute, the Mayor and Council should know in assessing this matter, that several years ago, I myself interviewed the female officer who was a victim of the crime described. My later written summary of that interview was sent directly to Chief Russell, with legal counsel’s prior consent, early in 2010. This report was apparently ignored. I received no question or contact from the City of Woodburn about this matter thereafter, and no action to revoke his certificate appears of record in Sgt. Mikkola’s DPSST files available to the public. This has been the case for more than four years since the incident in question, and it is no oversight that nothing has been done. This sends a message: don’t question command, even if they want to sodomize your girlfriend in your presence. The logical extension of this principle to other officers, and the potential for serious ongoing abuse of employees who are scrupulous about their oath as sworn police officers, seems obvious in this context. It is only one of many examples of actual abuse which rises well into the area of Official Misconduct and other predicate acts defined as “racketeering activity” under the statute creating a civil remedy for persons aggrieved by a pattern of such activity. c. Officer Kelly was a probationary officer under Sgt. Mikkola’s supervision at the time, which seems to be the very definition of Official Misconduct, since a probationary employee can be terminated for no reason.
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In substance then, this incident also illustrates well an ongoing culture of toleration and concealment of misconduct by favored employees, and a thoroughly unlawful and particularly vicious type of retaliation through ridicule and intimidation of the honest officers, and at times, their legal counsel. The techniques employed demonstrate a clear attempt to violate State and Federal law while concealing serious misconduct and mismanagement of the Woodburn Police Department. d. As noted above, I investigated the sodomy allegation personally when it came to my attention in connection with representation of another respected and long-term Police Officer, Pete Lichte. I also personally interviewed the female officer who was the victim of this crime, at the Marion County Courthouse, free from interference. She to her credit recited the true facts to me, with no expectation of gain for herself whatever, and those facts certainly didn’t constitute “no big deal”, a result urged on then-probationary Officer Kelly by command at the time. It is important for the Council and Mayor to note, that this victim not only verified these facts years ago, but so did Officer Kelly. I thereafter informed the Chief of Police at Woodburn in writing of the contents of the interview, and no meaningful corrective or protective action to address the clearly reported criminal actions by this WPD officer was taken. In fact, evidence suggests that Chief Russell actually responded by investigating me personally, since on recent production to me of Officer Lichte’s file in this matter, it appears he was inadvertently given by Chief Russell as part of “his” file, a file containing correspondence apparently authored by me on office letterhead, but having nothing whatever to do with my representation of Officer Lichte or anyone at Woodburn Police Department. Since this correspondence was not sent to anyone but the adverse party and client (of another Oregon police department outside Marion County entirely), there is only one way it came into Chief Russell’s possession and was apparently overlooked before he returned Officer
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Lichte’s file materials to him some time ago: deliberate seeking out of other cases and matters involving Officer Lichte’s chosen personal counsel, in what can only be motivated by a desire to find yet another improper method to influence one of your officers to forego legal representation, or intimidate counsel into withdrawal. This series of events fits well into the claim that a culture of lawlessness and abuse of police authority is being utilized by your command officers at Woodburn P.D., over time, with one unifying purpose: intimidation, control and concealment of improper conduct by certain command rank officers. Like Officer Bowers, I too am a Marine Corps veteran with over 30 years experience in private law practice representing police officers, and no criminal history whatsoever. Therefore, it appears this action by command to undermine the attorney-client relationship with Officer Lichte was and is apparently a reflexive action, using the same techniques employed by command to intimidate officers away from reporting good faith concerns of misconduct in the Department, in the mistaken assumption that “inside” information from other cases might yield a weakness to exploit. Happily, Command was mistaken in this assumption. It therefore affirmatively appears that over time, rather than spend time on the serious nature of the problems outlined, the substantial reaction of command to any objection raised by Officers to their abuse of authority or discretion, has been to sweep all reported misconduct under the rug, discourage scrupulous officers from conducting investigations which are not directly and completely controlled by Woodburn P.D., end their participation in multi-jurisdictional task forces designed to benefit your community, and to discourage the use of private legal counsel. The final point was underlined by Chief Russell’s direct caution to client Lichte that to use this office as counsel, was to bring a “toxic” influence into the situation. Our office has had no personal dealings with Chief Russell nor made any claims against him personally
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despite his silence on these important matters. The only direct contact from us to him with City Attorney permission was to forward the written report in early 2010 outlining what the female officer and crime victim reported to me when interviewed following the Mikkola incident. It is telling also that Officer Lichte and counsel filed no claims and asked no damages from the City of Woodburn during this period of representation, despite its feared toxicity. e. This fact pattern in turn strongly suggests that instead of looking into such serious matters involving supervisors within his Department, Chief Russell has instead deliberately chosen to find a way in substance to isolate experienced and qualified officers acting in good faith, whether through legal counsel or otherwise, and ratify their punishment for even the most trivial of policy violations. This makes the ongoing problem seem clearly systemic, and seems to strongly suggest no will exists within the Police Department to address these serious problems. At the same time these acts and omissions provide evidence of a clearly defined policy, practice and custom by WPD, established and tolerated over an extended period of time, contrary to well-established principles of human resources management, contrary to the interests of the public, and contrary to well-established principles of law under State statute and certain specific provisions of the U.S. Constitution. Taken together with many other examples not summarized here in the interest of length, it affirmatively appears from these facts and circumstances that the Woodburn Police Department has used unlawful conduct, unethical conduct, or both, in order to marginalize and induce fear in experienced officers who evince any inclination to voice good faith belief to command or other law enforcement concerning misconduct or potential unlawful conduct by officers within your Police Department. The message is clear: “Go along and get along” with anything the command structure presently in place at Woodburn P.D. demands, or face termination or
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worse. Do so even if it conceals known improper or openly unlawful activity by command officers. 7. Officer safety concerns are simultaneously left unaddressed, although the potential for harm to the client officers seems obvious when they are presented with sure second-guessing by command in any situation normally calling for the lawful use of force. Instead of paying attention to the reasons for any hesitation to act inherent when an officer knows he or she is under a microscope, sham investigations have been conducted both internally and “through independent third parties”, which have done nothing to fix the problem other than attack the scrupulous officer coming forward. The net result is to create an environment where officers hesitate lest they be disciplined, or worse, for exercising discretion to use force or other permissive conduct as a part of their job. This hesitation, aside from the potential for active physical threat arising in this culture of lawlessness fostered by command, is the type of psychological pressure that causes hesitation that simply said, can kill in the wrong situation. For example of active officer safety concerns being voiced in good faith, specific photographic evidence exists that at least one of the three clients I represent has been subjected to what appears to be planted evidence in his assigned patrol vehicle. The circumstances in that instance strongly suggest a connection between his interview in a recent Human Resources Investigation, and his discovery of a controlled substance and paraphernalia in his locked police vehicle. This he discovered, photographed and duly reported last summer. No known action was taken on this issue as well.

Legal Bases for Claims As a result of this conduct and similar conduct which any bona fide investigation would reveal, Officer Bowers’ rights arising under ORS 659A.199 -240, et seq., have been violated. He has been damaged by lost income and benefits, lost personal and professional reputation, demotion, suspension, lost earning capacity, worry, anxiety, humiliation

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and physical and mental pain and suffering, in an amount in excess of the statutory limitation for actions under the Tort Claims Act. Claims for relief under State law involving other legal principles including without limitation retaliation, hostile workplace, invasion of privacy, false light, negligent supervision and civil claims under the Racketeer-Influenced and Corrupt Organizations Act, are expressly reserved. Notice of claim under any other legal theory is hereby given. Although Federal claims are not subject to the Tort Claims Notice requirement or damage limitations, Federal remedies arising from deprivation of property and liberty interests protected by the U.S. Constitution, Am.1 and 14, rights to claims arising by violation of the Equal Protection Clause, and finally claims arising under the State and Federal Racketeering-Influenced and Corrupt Organizations Acts, will all be brought in a Court of appropriate jurisdiction. Acts supporting claims of damage due to racketeering activity prohibited by the State and Federal RICO statutes include: predicate acts of Attempted Sodomy, Official Misconduct, Witness Tampering, Obstruction of Governmental Administration, Obstruction of Justice, and related statutes, all within the definition of “predicate act” of racketeering activity set forth in Definitions for ORS 166.715 to 166.735. The Complaint will allege the City of Woodburn, Captain Alexander, Sgt. Mikkola, and others constitute the racketeering enterprise benefitting from the course of activity which violates the Act and creates the claim for damages. Injunctive relief will also be sought, as well as declaratory relief. The issue of whether the evidence justifies investigation and potential decertification by DPSST of any licensed officers employed now or in the past by Woodburn, will be the part of the subject of our analysis for complaint preparation and litigation. Attention and Response Other Than ‘Ordinary Course of Business’ is Required. Your earliest personal attention to these matters is unfortunately and demonstrably warranted. Your personal attention outside mere submission of this Notice through normal channels is requested, because the evidence strongly indicates a typically perfunctory and predictable
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response through channels normally used for tort claims involving the City is not in the best interests of the people of the City of Woodburn. Such a response is also not worthy of some of its finest police officers, or the responsible membership of the collective bargaining unit representing these officers. I therefore urge you to act promptly, responsibly and thoroughly to investigate this set of problems. Please resist the temptation to simply accept verbal explanations of those involved in the ongoing problem, because this will be treated as a conscious decision by these officers to do nothing substantial to address their claims and concerns. If immediate substantial corrective action is not taken, all these matters will be comprehensively set before a Court of appropriate jurisdiction with jury trial demanded in the near future, and without further notice, unless we otherwise expressly agree through legal counsel, in writing, and prior to filing. Please note that if filing is required, a copy of the Complaint will be served on the Attorney General’s Office for both the State of Oregon and the United States, and a separate complaint seeking investigation of all relevant matters known to any of my clients or myself will be sought at an appropriate time through my office from the Department on Public Safety Standards and Training. Finally, please understand this comprehensive approach to a tort claim notice is undertaken advisedly and with hopes the elected representatives of the City of Woodburn will insist on full disclosure and meaningful investigation apart from any litigation defense, which is calculated not to discredit my clients or justify past wrongs, but to take real corrective action. This approach to service has been taken because the evidence suggests it is the only likely way to obtain a truly independent review of these serious matters causing damage to my clients, and to your community. Meaningful investigation is ostensibly the purpose of giving a Tort Claim Notice, not merely circling the wagons and preparing to contest what clearly should not be subject to reasonable dispute. Left unchecked, this situation will only worsen. It is incumbent on you, the elected representatives chosen to represent the citizens of your City, to both protect the public, and protect these officers, from the corruption outlined here. They need your protection from the predictable retaliation and real safety concerns which will occur and likely worsen if the situation is left unchecked, or left in the hands of the City of Woodburn’s present Police Department managers.
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In this connection I am aware of the recent interviews of my clients by the Human Resources director, and have recordings and accounts prepared by my clients in anticipation of litigation for me, and at my request, so please understand I make the allegations in this claim notice with full understanding of what has and has not been done by way of internal investigation or ‘outside’ investigation through the City of McMinnville by Chief Russell to interview these same officers. No known meaningful attempt to address the concerns summarized here has been undertaken by any of this window dressing. Please finally note that I do not consent to direct or indirect contact with my clients by legal counsel who may represent the adverse parties named in this matter. This lack of consent concerns not only the subject matter of this Notice and any further supplemental notices, but any other matters within the scope of any adversary proceedings between the City of Woodburn and the three clients identified on page one of this Notice. This notice is in addition to and does not purport to supplant or alter the status of the pending grievance of Det. Bowers recent discipline, which is a Union matter to be taken up with Union counsel. Contact Regarding Claim The name and address to which information concerning this claim may be sent is my name and the mailing address which appears on the first page of this Notice. Concluding Request As elected public officials, I realize the Mayor and Council members may well have been unaware of the nature, scope and seriousness of the matters of police abuses outlined here. I urge those recipients of this correspondence to therefore look independently into the factual materials which relate to this matter, rather than accept characterizations or verbal explanations for the conduct outlined in part above. If a request is made to me through legal counsel for that purpose, I will consider sharing information with any attorney representing the City of Woodburn for the purpose of addressing the most serious of these concerns expressed with real and immediate action. I also urge you to consider the public trust given to you. This set of claims should not be filed with “business as usual”. The facts
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demonstrate rather clearly this is an unusual situation. Rather, given the form of government created by the Charter of the City of Woodburn, I urge the Mayor and Council, in whom the power to act truly rests, to first demand a full accounting from all concerned, then to inquire responsibly, and consider the consequences of failure to do so. This is requested not only for my clients named above, but also for the citizens of your City who look to the Police Department for protection. To do otherwise would seem to be indistinguishable from ratifying the conduct which has caused and will continue to cause harm to your citizens if this culture at the Police Department is left unchecked. Thank you for your attention to these matters. Very Truly Yours,

Jeffrey H. cc: N. Robert Shields, City Attorney Anil Karia, Esq. WPA Legal Counsel Clients

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