HomeMy WebLinkAbout20083215.tiff Richard K. Blundell, Esq.
LAW OFFICE OF RICHARD K. BLUNDELL
1227 8th Street
Greeley, Colorado 80631
Telephone: (970)356-8900
Facsimile: (970)353-9977
mrrkblau mcleodusa.net
November 26, 2008
NOTICE OF CLAIM PURSUANT TO C.R.S. §24-10-109
TO:
Board of Commissioners of Weld County, Colorado,
and, William H. Jerke, Chairman thereof
915 Tenth Street, P.O. Box 758
Greeley, Colorado 80632
Vicki Sprague, Secretary to
the Board of Weld County Commissioners
915 Tenth Street, P.O. Box 758
Greeley, Colorado 80632
Bruce Barker, Weld County Attorney
915 Tenth Street,P.O. Box 758
Greeley, Colorado 80632
John B. Cooke, Sheriff of Weld County, Colorado
Weld County Sheriffs Office
1950 O Street
Greeley, Colorado 80631
CLAIMANT: Richard Day `
37962 Weld County Road 93
Briggsdale, CO 80611 .7
CLAIMANT'S ATTORNEY: Richard K. Blundell, Esq.
1227 8th Avenue `''
Greeley, Colorado 80631 // Phone: (970) 356-8900
FACTUAL BASIS OF CLAIM:
Claimant hereby incorporates by reference all of the following documents,
copies or tapes of which are already in the possession of, or readily accessible or available to,
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- OE_ (DE— a(i . 04 /2 > 2008-3215
Sheriff Cooke and/or the Weld County Attorney's Office or Board of Weld County
Commissioners: Claimant's personnel, personnel board, Human Resources, and Internal Affairs
files and job separation related and appeal documents and transcripts or tapes of hearings in the
this matter, together with those from or applicable to, similar cases of the undersigned's other
current or former clients related hereto—i.e., Denise Seybold, Peter Graham, and Blake Cassata.
Likewise, Claimant hereby incorporates by reference any and all of the EEOC, CCRD, and Court
documents, filings, pleadings, orders, and disclosures and discovery obtained therein, and, in
particular, in Denise Seybold's ongoing, pending U.S. District Court action. Again, all of the
foregoing are already in the possession of Sheriff Cooke, the County Attorney's Office, the Weld
County Board of County Commissioners, or their outside counsel. To the extent that any
additional copies thereof are needed, please contact the undersigned at his office address or
phone number and same will be duly forwarded.
On June 2, 2008, the Claimant, Richard Day, was wrongfully pretextually terminated
from his employment with the Weld County Sheriffs Office, pursuant to the Board of County
Commissioners' Decision affirming the earlier termination decision of the Personnel Board panel
upholding said Decision of Sheriff Cooke. At the time of his termination, Richard Day was a
Deputy in the Traffic Division of the Public Safety Bureau. The Claimant originally served as a
reserve deputy for the Weld County Sheriffs Office. In 1999, he was hired on a full time basis
as a Correctional Officer, thereafter transferred to the position of a Court's Officer Deputy, and
finally worked as a patrol deputy in the Traffic Division Unit. At all times relevant, the Claimant
performed his job and law enforcement duties satisfactorily and had no record of disciplinary
actions or warnings.
On October 29, 2007, the Claimant and another Deputy were dispatched to respond to a
hit and run accident. Both Deputies, in separate vehicles, were traveling at high rates of speed
fluctuating from 70 to 126 miles per hour. At no time did any Commander or other authority
order the Deputies to break off the chase. In the meantime, Deputy Tucker called for backup
from Brighton and Adams County.
While Deputy Tucker lost contact with the suspect when his vehicle was forced off the
road to prevent an accident with another vehicle which failed to yield the right of way, the
Claimant was able to catch up to the suspect on CR2 west of Highway 85. The suspect's vehicle
crashed into a guard rail near the Sylmar Manor Mobile Home Park. The suspect jumped out of
his car and stood on the guard rail then dropped into a ditch, which hid him from view of the
Claimant. Claimant was unable to tell if the suspect had a weapon. The Claimant exited his
vehicle and pulled his weapon which the Grievance Board admitted "was appropriate." Indeed,
the Grievance Board acknowledged "the emotional context of the events, including the fact that
Day was the only officer on the scene and he knew that Tucker had been injured." At this point
the suspect arose from the ditch, the Claimant yelled at him to "to stop or I'll shoot." The
suspect did not stop; rather, he pointed his hands in a"blade position" and ran right past the
Claimant who by then realized the suspect was not armed. Twice the Claimant had lowered his
weapon to the"low ready position"but at no time does he remember the gun discharging.
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Apparently the gun did discharge at some point, but the Claimant has no memory of it.
While the Sheriff maintained that the Claimant was "being dishonest" about not
remembering the gun firing and "firing at the suspect," the Grievance Board specifically found
that the Sheriff had failed to met his burden of persuasion and that the Claimant was not
"dishonest in either respect." It noted that even the witness Jim Williams, the manager of the
trailer park, was confused as to how many shots were fired and the "physical evidence from the
scene did not support Williams assertion that Day had fired from the gate area towards the
suspect and Williams." Since the Claimant was being truthful and the Board so found, there is
no basis for any of the other violations. A copy of the Findings of Fact and Decision of the
Grievance Board in the Matter of the Grievance of Richard Day is attached as Exhibit 1.
Sheriff John Cooke alleged in his termination letter that the Claimant violated ". . .the
following Weld County Personnel Policies and Sheriffs Office Policies: (a) Weld County
Personnel Policy 3-3-10(A)(2) -conduct endangering the safety or well-being of self, fellow
employees or the public; (b) Weld County Personnel Policy 3-3-10(A)(4) -failure to comply with
lawful orders or regulations;(c) Weld County Personnel Policy 3-3-I 0(A)(13) - dishonesty; (d)
Weld County Personnel Policy 3-3-10(A)(18) - any conduct which is likely to have an adverse
effect upon the functioning of County Government; (e) Weld County Sheriffs Office Policy
1.1.6 Command; (f)Weld County Sheriffs Policy 2.7.0 - physical and deadly force; (g) Weld
County Public Safety Bureau Procedure 2.3.12 - emergency response; (h) Weld County Sheriff s
Office Public Safety Bureau Procedures 2.3.24 - vehicular pursuit. A copy of the Memorandum,
dated February 19, 2008, is attached as Exhibit 2. And, a copy of Bureau Chief Fliethman's
facsimile letter to Claimant regarding the internal affairs investigation, which is undated except
for the facsimile address of Noffsinger MFG Co., Inc., date of February 13, 2008, is attached as
Exhibit 3.
During the appeal of the Grievance Board's Decision, the Claimant asserted the following
grounds or errors, inter alia:
"A. The termination of the Appellant ["Claimant"here] was unfounded and
unsupported in this facts elicited as the result of the internal affairs investigation and at
the meeting in connection with the within matter and, as such, is imposed without just
cause.
B. The termination of the Appellant constitutes a penalty disproportionate to the
offense alleged and is excessive so as to be punitive rather than corrective in nature and is
therefore violative of the policy of progressive and corrective and/or positive discipline of
the Weld County Employee Personnel Policy Handbook, Weld County Sheriffs Office
Procedures, and the Home Rule Charter for Weld County.
C. The penalty of termination of the Appellant is disproportionate in comparison to
violations of other members of the Weld County Sheriffs Department under similar
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circumstances and, as such, denies to the Appellant his rights of equal protection under
the law and /or substantive due process in violation of the Constitutions of the United
States and Of Colorado, and further represent a violation of any provision and/or policy
of Weld County Employee Personnel Policy Handbook, and the Weld County Sheriff's
Office Procedures.
D. The termination of the Appellant totally fails to consider and evaluate the prior
service of the Appellant as a member the Weld County Sheriff's Office and his past
record of conduct and total lack of serious misconduct and/or discipline taken against him
and is, therefore, in violation of the policy of progressive discipline of Weld County
Employee Personnel Policy Handbook, and the Weld County Sheriff's Office
Procedures.
E. The termination of Appellant is violative of generally accepted standards of proper
police administration and was imposed on the Appellant for purposes other than
administrative control of the Weld County Sheriffs Office.
F. At all times pertinent hereto the Appellant's actions in connection with the subject
incidents were unlawful,justified and done in good faith in the performance of his duties
as a deputy of the Weld County Sheriffs Office and in conformance with or based on his
departmental training."
The Claimant is not the only employee of the Weld County Sheriffs Office who has
experienced willful, wanton, and unconscionable disparate treatment. In fact, many employees
similarly situated have suffered similar discrimination and chilling effect thereof on the
workplace environment. The Weld County Sheriff's Office exists as a statutory office with
broad powers which unrestrained, as here, have resulted in a politically offensive,
unconscionable, and abusive pattern, practice, or custom of capricious and arbitrary promotions,
retaliations, recriminations, and terminations against any unsuspecting legitimate employee who
does not pay homage to, and/or silently tolerate the corrupt and perverse environment in which
they must work. The alleged investigation conducted by Internal Affairs, if any, was superficial
and predetermined, and the material evidence was obtained by the investigator for the Claimant's
attorney.
The Claimant had absolutely no prior incidents of discipline or misconduct. Yet deputies
who have numerous warnings and disciplinary actions and incidents of reprehensible misconduct
against them for ongoing in similar conduct are still employed there. The termination of the
Claimant is arbitrary, capricious, disparate and unjust. The termination demonstrates the willful
and wanton indifference of the Weld County Sheriff to the constitutional and statutory protected
employment and related interests, rights, and status of the Claimant and other employees
similarly situated, with the total acquiescence and indifference of the Board of County
Commissioners for Weld County.
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Claimant also asserts that the selection of longtime Weld County Republicon Party
politico "Good Ole Gal" and former longtime County Commissioner, Jackie Johnson, occurred
in a manner specifically intended or designed to obtain a perdetermined result that would be
utterly favorable to the Sheriff and County, and conversely adverse to the Claimant, since Ms.
Johnson continues to have multiple conflicts of interests in regard thereto, given her ongoing
relationships with the County , County Attorney's office, Personnel Director, and County
personnel and ongoing production of substantial income on the part of herself and her lawfirm
from handling related planning, zoning, and County development matters. Likewise, her bogus
selection therefore ensured that Claimant's conduct would again be unfairly viewed solely in
isolation and not on a true and honest comparable basis in order to continue and further conceal
the utterly extraordinary corruption and ongoing criminal activities of the Weld County Sheriff's
Office, Sheriff, Undersheriff, and upper management thereof, who continue to fund their lavish
lifestyles and buttress their increasingly impressive asset and financial portfolios, as hereinbelow
stated. In short, the Weld County Sheriff's Department is fundamentally run as a criminal
enterprise with the consent and cooperation of the Board of County Commissioners, Don
Warden, and fellow multi-millionaire "double-dipper" Pat Persichino, who likewise continue to
enjoy luxurious and meretricious lifestyles and spending habits (courtesy of Tom Roche, Roche
Construction, and all of their fellow Republicon bankers, developers, construction companies,
subcontractors, mortgage brokers and lenders, realtors, oil and gas and energy related companies,
and their executives and the like—thanks to their continuous "kowtowing" to their every income-
producing or profit-motivated whim, caprice, or desire). Indeed, these are the true constituents
who are served by such corrupt Weld County Republicon Party public officeholders, a number of
whom (including the current and former Sheriff, Undersheriff, and current and former upper
management level Weld County Sheriff's Office"Good Ole Boys") have earned and/or continue
to earn vast illicit incomes from their outside construction, development, real estate, and
mortgage related business activities related thereto.
The Claimant has complied with all conditions precedent to the filing of the Notice of
Claim having exhausted all his administrative remedies, through his grievance and appeal rights
under the Weld County Code.
NAME AND ADDRESS OF PUBLIC EMPLOYEES INVOLVED:
Sheriff John B. Cooke Bureau Chief Kim Fliethman
Weld County Sheriff's Office Weld County Sheriff's Office
1950 O Street 1950 O Street
Greeley, Colorado 80631 Greeley, Colorado 80631
Commander Bruce Martin Commander Paul Wood
Commander Internal Affairs Commander Traffic Unit
Weld County Sheriffs Office Weld County Sheriffs Office
1950 O Street 1950 O Street
Greeley, Colorado 80631 Greeley, Colorado 80631
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NATURE AND EXTENT OF INJURIES:
As the direct and proximate result of the foregoing acts and omissions, the Claimant seeks
compensatory damages that fully compensate him for the (a) loss of income and other
employment benefits and fringe benefits, including front and back pay; (b) damage to the
Claimant's reputation and character which has affected his ability to obtain other comparable
employment; (c) reimbursement for any past lost benefits and expenses in amounts consistent
with the salary and wage adjustments or increases attributable thereto since his wrongful and
unlawful termination. In addition, the Claimant has suffered ongoing humiliation, degradation
and embarrassment due to destructive and retaliatory statements made by certain employees of
the Weld County Sheriff's Office.
AMOUNT OF MONETARY DAMAGES REQUESTED:
Since the Claimant's damages are ongoing it is difficult to calculate an accurate sum that
would make him whole. The Claimant has obtained employment at one-half the salary he was
making with the Weld County Sheriff's Office. He was forced to withdraw prematurely his
retirement funds from his 401K, which further resulted in the loss of any contributions previously
made by Weld County. He lost approximately 800 hours of sick leave. In addition to the income
losses, it appears that the Claimant has suffered damages in an amount not less than $250,000.00.
Sincerely,
Richard K. Blundell
Attorney at Law
RKB/brk
Enclosures:
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FINDINGS OF FACT AND DECISION OF THE GRIEVANCE BOARD
1N THE MATTER OF THE GRIEVANCE OF RICHARD DAY
Pursuant to Sections 3-4-60 and 3-4-70 of the Weld County Code, a Grievance Board was
convened at approximately 9;10 a.m. on April 23, 2008, to hear the grievance of Richard Day
concerning the termination of his employment as a Deputy Sheriff by Sheriff John Cooke. The
members of the Grievance Board were David Bressler, selected by Sheriff Cooke, Robert Troy
Osborne,selected by Richard Day,and Jacqueline Johnson,selected by the Weld County Board of
Commissioners. Richard Day was present and was represented by counsel, David J.Bruno, Esq..
Commander Bruce Martin was present on behalf of the Sheriff's Office, and Cyndy Giauque,
Assistant County Attorney, appeared as counsel for the Sheriff's Office. Susan Elton was present
on behalf of the Department of Personnel Services. The Grievant acknowledged his understanding
that Bressler and Osborne are both employed in the Department of Paramedic Services and that
Osborne is directly supervised by Bressler. The Grievant further acknowledged that he did not
believe their employment relationship would affect the fairness of the hearing.
Each party's counsel made an opening statement. The following witnesses testified on behalf
of the Grievant: Richard Day, John D. Wyckoff and Marilyn J. Meyers, Psy. D.. Pursuant to the
Weld County Code Section 3-4-70 D. 4, Day's main personnel file became part of the hearing
record and was marked as Exhibit "A." Grievant's Exhibits "B" through "L"were received in
evidence_ Additionally,the parties stipulated to the admission ofExhibif'M"in lieu ofthe testimony
of Deputy John Tucker. Grievant's Exhibits "N" and "O" were also received in evidence. The
Exhibits are attached hereto and incorporated herein by reference. At the close of the Grievant's
case, the Grievance Board determined that he had established a prima facie case. The following
witnesses then testified on behalf of the Sheriff's Office: Jan LeMay, Commander Paul Wood,
DeputyDonald Patch,Commander David Tuttle,Deputy Fred Walker, Public Safety Bureau Chief
Kim Fliethman, and Sheriff John Cooke. Sheriff's Exhibits #1 through #9 were received in
evidence. Following closing arguments by each party, the grievance hearing was adjourned at
approximately 6:20 p.m. The Grievance Board met immediately thereafter to make findings of fact
and to reach a decision.
The grounds for termination of Day's employment, as set forth by Sheriff Cooke in an
Interoffice Memo dated February 19,2008,(see Exhibit"E")were violations of the following Weld
County Personnel Policies and Sheriff's Office Policies:
a. Weld County Personnel Policy 3-3-10(A)(2)-conduct endangering the safety
or well-being of self, fellow employees or the public;
b. Weld County Personnel Policy 3-3-10(A)(4)- failure to comply with lawful
orders or regulations;
c. Weld County Personnel Policy 3-3-10(A)(13) - dishonesty;
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d. Weld County Personnel Policy 3-3-10(A)(18)- any conduct which is likely
to have an adverse effect upon the functioning of County Government;
e. Weld County Sheriff's Office Policy 1.1.6- command;
f. Weld County Sheriff's Office Policy 2.7.0-physical and deadly force;
g. Weld County Sheriff's Office Public Safety Bureau Procedure 2.3.12 -
emergency response; and
h. Weld County Sheriff's Office Public Safety Bureau Procedure 2.3.24 -
vehicular pursuit.
FINDINGS OF FACT
Based upon the testimony of the witnesses and the exhibits received in evidence, the
Grievance Board makes the following Findings of Fact:
I. In 1996,Day began service as a reserve deputy in the Weld County Sheriff's Office,
and in 1999,he was employed !till time,first as a correctional officer,then a court's officer deputy,
and finally a sheriff's deputy serving as a patrol officer and later in the traffic unit.
2. Day's petfottnance evaluations indicate that he met all performance expectations
during the course of his employment, including required training, and that he had no record of
disciplinary action. (See Exhibit"A".)
3. At approximately 10:40 a.m.on October 29,2007,Day and Tucker were dispatched
from the Southeast Substation at Fort Lupton, to a hit and run traffic accident which had occurred
near Weld County Roads 18 and 23. Weld County Dispatch("Dispatch")reported that the victim
of the accident was following the suspect in his own vehicle and reporting the suspect's location.
Based on these reports,both officers,in separate vehicles,with Tucker in the lead and for the most
part out of sight of Day, drove west through Fort Lupton on Highway 52, then south on State
Highway 85 and west on Weld County Road 6, in an effort to locate the suspect. Tucker turned
south on Weld County Road 15 and Day turned south on Weld County Road 19, believing the
suspect was between them. Day turned west on Weld County Road 2,and he almost immediately
made a U-turn after observing what he believed to be the suspect heading east. (See Exhibit"B".)
4. Both deputies were driving at high rates of speed as they proceeded on the above
described course. Although Day testified he did not know how fast he was driving,he admitted that
he exceeded the posted speed limits. Additionally,the Automated Vehicle Location("A VL")report
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for Day's vehicle indicated velocities as high as 118 m.p.h.during this portion of the pursuit to locate
and intercept the suspect. (See Exhibit#9)'
5. Day used his emergency lights at intersections in Fort Lupton and to alert traffic as
he turned onto State Highway 85,but, except at one red light in Fort Lupton, during this portion of
the pursuit,he did not use a siren. Day testified that he refrained from using lights and siren so as
not to alert the suspect that he was being pursued.
6. Alter executing the U-turn on Weld County Road 2,Day activated his lights and siren
as he pursued the suspect's vehicle. Although he again testified that he did not know how fast he
was driving during this portion of the pursuit, Day 's radar indicated the suspect's vehicle was
traveling at 98 m.p.h. The AVL report indicated that the velocity of Day's vehicle on Weld County
Road 2 was as high as 126 m.p.h.. (See Exhibit#9.)
7. Day was aware that Weld County Road 2 intersected with State Highway 85
approximately seven miles east of Weld County Road 19 and that the four-lane highway was heavily
traveled. He also knew that the traffic signal at that intersection remained green for highway traffic
unless triggered by east-west traffic on Weld County Road 2.
8. Day was close enough to the vehicle to confirm the license plate matched the
suspect's vehicle. He observed the vehicle crossing a yellow line and forcing other cars on Weld
County Road 2 to pull to the shoulder. As the suspect's vehicle approached the intersection with
State Highway 85, the driver unsuccessfully attempted to turn left onto a field access road and
crashed into a guard rail on the north side of the road.
9. At no time during the pursuit did Day notify Weld County Dispatch that he was
"running code"or in an emergency response. At some time prior to the crash,he did advise Dispatch
of a"failure to yield."
10. Although Day testified that notice of a failure to yield meant the same thing as
running code, Commander Wood testified that they are different, and that when a deputy is using
lights and siren,he must notify Dispatch that he is running Code 3 emergency mode. Such notice
is then conveyed by Dispatch to the Commander on duty.
11. Although Day testified that he was considering ending the pursuit, at no time prior
to the crash did Day or any Commander terminate the pursuit.
' Counsel for the Grievant objected to the admission of this Exhibit arguing, among
other things that the meaning of"velocity"was not explained. However, the document was
properly authenticated by Bureau Chief Fliethman, and for purposes of these Findings of Fact,
the Grievance Board accepts the definition of velocity as found in Webster's New Collegiate
Dictionary: "time rate of linear motion in a given direction,"and as equivalent to miles per hour
as used in Tucker's Performance Advisement Notice. (See Exhibit"M")
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12. Following the crash,Day stopped his vehicle in the westbound lane of Weld County
Road 2. He observed the suspect exit his vehicle through the driver's window and stand on the
guard rail above an irrigation ditch, (See Exhibit "C-4".) Day drew his weapon, standing at a
distance of 30 to 40 feet from the suspect. He was unable to determine if the suspect was armed,and
he ordered the suspect to stop and get on the ground. The suspect raised his hands,jumped into the
irrigation ditch below the guard rail and disappeared from Day's view
13. Day lowered his weapon to a"low ready'position and as he was proceeding north
on the field access mad, the suspect emerged from the ditch, slightly behind Day and running
towards him. At this point,a bathed wire fence separated Day and the suspect. (See Exhibit"C-7".)
Day again raised his weapon and ordered the suspect to stop and get on the ground. When the
suspect continued to run, Day shouted "Stop or I'll shoot."The suspect raised his hands,holding
them in a bladed position,and crossed in front of Day. Day saw that the suspect was not holding a
weapon, and at some point, he again lowered his gun to the low-ready position. As Day turned to
watch the suspect mn past him,something flew past Day from right to left and he ducked in response
to the object Day then continued along the field access road to the gate area, (see Exhibit"C-6")
where he again shouted to the suspect, who continued running and disappeared from Day's sight,
at which point, Day ceased his pursuit and returned to his vehicle.
14. As these events were occurring, Day heard Deputy Tucker tell Dispatch that he had
had an accident on Weld County Road 2. Day also knew that Tucker had called for back-up from
Brighton and Adams County. However,no back-up was yet at the scene.
15. Subsequently,both Brighton and Adams County officers appeared on the scene and
apprehended the suspect? Because Dispatch had received areport that an officer fired at the suspect,
Patch undertook an investigation, during the course of which he determined that one round was
missing firm the magazine in Day's gun. Patch also observed residue in the gun. Patch relieved
Day of the weapon and the magazines. Day was directed to return to the Southeast Sub-station and
was then placed on administrative leave,pending an investigation.
16. Day told Patch that he did not shoot at the suspect and that he was not aware that his
gun had discharged. Other evidence presented at the hearing differed from Day's testimony.
According to the Witness Statement ofJim Williams,taken by Deputy Donald Patch,an officer fired
two shots at the suspect from the area of the gate after calling out"Stop or I'll shoot." (See Exhibit
#7.) Williams later said only one shot was fired,and other witnesses interviewed by Patch indicated
they heard one or two shots. Commander David Tuttle testified that Day told him he had his gun
pointed at the suspect's left ear as he was running and that, if he had fired at that point, he would
have wounded the suspect. Tuttle also testified that Day told him that he vaguely remembered the
gun firing at some time when it was pointed at the ground.
3 The suspectdid not sustain any gunshot wounds.
4
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17. Jan Le May,a criminalist with the Greeley-Weld County forensic lab, found the shell
casing at the scene during the investigation, but he did not find the bulIet.3 The casing was found
at a location consistent with where Day indicated he was standing when the flying object passed him.
(See Exhibit"C-5".)
18. Sheriff Cooke testified that he did not believe Day was truthful when Day claimed
not to know that he had fired his weapon until the missing round was discovered. Cooke also
testified that he believed Day had fend his weapon at the suspect. However, Dr. Marilyn Meyers
testified that based upon her interview with Day, she believed that Day did not remember his gun
discharging. Meyers further testified that this conclusion is supported by research concerning how
highly emotional experiences can impact perception and memory. (See Exhibits"K"and"L".)
19. Day received training on weapon use at least quarterly, during which time, he was
instructed not to have his finger on the trigger unless he intended to shoot.
20, The Sheriff's Office conducted investigations of the conduct of both Day and Tucker.
Tucker,who had prior driving violations, received aPerforruance Advisement Notice stating among
other things, that he would receive a ten day suspension without pay and that he would be reassigned
to a position prohibiting him from engaging in pursuits or emergency responses. (See Exhibit"M".)
21. During the investigation, Day told Commander Tuttle that his threat to shoot the
suspect was "a bluff."
22. On or about October 8, 2008, Day attended an Advanced Officer's Training which
included a review of Weld County Sheriff's Office Public Safety Bureau Procedure 2.3.24 -
Vehicular Pursuit. (See Exhibit#2.)
23. Day was also familiar with Weld County Sheriff's Office Public Safety Bureau
Procedure 2.3.12-Emergency Response. (See Exhibit#1.)
DECISION
The Grievance Board first concludes that Sheriff Cooke did not meet his burden of
persuading the Board by a preponderance of the evidence that Day was dishonest either with respect
to his statement that he did not remember his weapon discharging or his denial that he fired at the
suspect. The eye witness,Williams, initially reported two shots were fired,but later stated only one
was fired. Other witnesses interviewed by Patch also gave varying reports. Additionally, the
physical evidence at the scene did not support the Williams' assertion that Day had fired from the
gate area towards the suspect and Williams. Finally, given the emotional context of the events,
3 John Wyckoff, testified that in late February 2008, an individual hired by him,using a.
metal detector discovered a slug in the vicinity of the casing. (See Exhibits "C-11","C-12", " G"
and"1-2.")
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including the fact that Day was the only officer on scene and that he knew Tucker had been injured,
the testimony and research presented by Meyers support Day's assertion that he did not remember
the gun discharging.
However, even absent a violation of Weld County Personnel Policy 3-3-10(A)(13), the
Grievance Board concludes that Sheriff Cooke has met his burden of persuading the Board by a
preponderance of the evidence that the termination of Day's employment was justified.
The evidence clearly establishes that Day drove at rates of speed that were forty miles or
more above the posted limits during the vehicular pursuit of the suspect, thereby endangering the
safety or well being of himself, fellow employees or the public. Moreover, during much of the
pursuit,Day failed to use emergency lights and siren,and,even after he did activate them, he failed
to notify Dispatch that he was running code. Additionally, Day failed to consider whether the
seriousness of the offense giving rise to the pursuit was outweighed by the risk to the public either
from the nature of the pursuit itself or the risk to the public if the suspect were not immediately
apprehended. . The offense that gave rise to the pursuit was a misdemeanor traffic accident and the
license number of the vehicle the suspect was driving was known to Dispatch. The speeds at which
Day was traveling were not justified under such circumstances. Finally, Day failed to consider
existing driving conditions,including traffic congestion when he continued the pursuit knowing that
the suspect was approaching the high traffic intersection with State Highway 85. This conduct
constitute a violations of the Weld County Sheriff's Office Public Safety Bureau Procedures 2.3.12
and 2.3.24.
Furthermore, Day's conduct after the vehicular pursuit ended was not in compliance with
required procedures concerning the use of weapons. While his initial use of his weapon when the
suspect exited his vehicle was appropriate,his subsequent use of the weapon was not. Assuming that
Day's weapon discharged while in a low-ready position, his finger should not have been on the
trigger. Moreover,Day told Tuttle he had the gun pointed at the suspect's left ear even after he had
seen the suspect raise his hands in a bladed position as he emerged from the ditch. Finally, Day's
warning to the suspect that he would shoot, which he admitted was a bluff, was contrary to Day's
training that an officer must be prepared to use his weapon once he draws it and points it at a suspect
and that a weapon should never be used as a bluff Day received quarterly training on the use of
weapons,yet he failed to follow the most basic guidelines set forth in such training. This conduct
constitutes violations of Weld County Personnel Policies 3-3-10(A)(4)and 3-3-10(A)(18).
Considering all of the circumstances and all of the conduct of Day during the incident
occurring on October 29,2007,the Grievance Board concludes that Day's violations of policy and
procedure were sufficiently serious to justify the termination of his employment. Accordingly,the
grievance is denied.
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Dated this \ s't day of May, 2008.
ue1 M e Johns
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David Bressler
Robert Tr a
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: R,t 6 interoffice Memo
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�?� ' To: Deputy Richard Day
ea uasa ' °°, From: Sheriff John Cooke
""Co Date: February 19, 2008
Subject: Termination
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I have reviewed all the information regarding the recommendation for termination
of your employment from Bureau Chief Fliethman. In making my decision, I have also
considered your statements to me provided at the predismissal hearing and I have reviewed
your personnel file. After much consideration I have decided to uphold the termination.
The reasons for the termination are many. I feel the entire incident that occurred
October 29,2007 was handled inappropriately,you showed very poor decision making
abilities,you violated numerous policies and I believe yop were dishonest when confronted
about shooting at a fleeing suspect.
Integrity is the most important character a law enforcement officer must possess. I
think you were not telling the truth when you said you did not shoot at the suspect as he
ran away. The facts that support this are: when you got out of the patrol car you yelled
"stop or I'll shoot"; shortly thereafter you did shoot. Two witnesses stated they saw you
aim your gun at the suspect and then fired at him as be was running away. You showed
deception on the polygraph test you took when you stated that you did not fire your
weapon at the suspect. Yon also showed deception on the polygraph when you denied lying
when you initially said you didn't remember shooting your gun.
Once you received this call you placed not only yourself but the public in danger by
the way you were driving. You exceeded the speed limit and did not activate your
emergency equipment which is a violation of state law and Sheriffs Office policy. You
drove through the city of Ft. Lupton at 71 mph, 119 mph on Hwy 85 South to WCR 6; 118
mph on WCR 6 and just before the suspect vehicle crashed you were traveling 126 mph on
WCR 2 which is a two lane heavily traveled road.
When you got out of the vehicle,you pulled your weapon for officer safety reasons,
which is an action within office guidelines. As the suspect was running away, however,you
yelled "Stop or III Shoot". During the investigation you told Commander Martin that you
From the Desk Of...
Sheriff John Cooke •
Weld County Sheriffs Office
1950 O Street
Greeley,Co 80631
Phone:970-356-4015
Fax 970-304-6467
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said this as a `Bluff' in order to get the suspect to stop running so you wouldn't have to
chase him down. Once the weapon is pulled a deputy must be prepared to use it and should
never be used as a bluff.
Additionally,you have either refused or been unable to provide critical information
concerning this situation. Repeatedly when asked about shooting at the suspect your
response has been that you don't remember shooting your gun. As Bureau Chief Fliethman
stated in his memo to you, in your position, accurately remembering and documenting
details of traumatic and/or high stress events is extremely important,and is an essential
function of your job.
You also failed to obey and comply with a lawful order. You were told not to discuss
this investigation with anyone except the supervisor or investigator assigned to this
investigation; yet you discussed the case with at least three different people.
I found you to be in violation of the following Weld County Personnel Policies and
Sheriff's Office Policies:
• 3-3-10 (A) (2) Conduct endangering the safety or well-being of self, fellow
employees or the public
• 3-3-10 (A) (4) Failure to comply with lawful orders or regulations
• 3-3-10 (A) (13) Dishonesty
• 3-3-10 (A) (18) Any conduct which is likely to have an adverse effect upon
the functioning of County Government.
• WCSO Command
• WCSO Physical and Deadly Force
• WCSO Emergency Response
• WCSO Vehicular Pursuit
Your termination is effective today February 19,2008. You are to make arrangements with
Kim Higuera at ext 2804 to turn in all property owned by the Sheriff's Office that is in
your possession.
A photocopy of the dismissal procedures of the Weld County Code is attached.
From the Desk Of:..
Sheriff John Cooke
Weld County Sheriffs Office
1950 O Street
Greeley, Co 80631
Phone:970-356-4015
Fax:970-304-6467
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it
Dear Deputy Day,
An Internal Affairs review was conducted by Commander Bruce Martin into the
incident you wire involved in on October 29, 2007. The investigation found several
violations of Weld County Personnel Policy, Weld County Sheriffs Office Policy and
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the Public Safety Bureaus' Procedures. During the course of the investigation, you were
not forthcoming with several key facts, and, in fact, claimed you did not remember some
of the events that had occurred. In your position, accurately remembering and
documenting 'details of traumatic and/or high stress events is extremely important, and is
an essential ft4tion of your job. Inability or refusal to provide accurate details of a
traumatic or hbah stress incident can lead to a greater exposure to liability for you and for
the Weld Coutirty Sheriffs Office_
As a result of your refusal or inability to provide a comprehensive and accurate
report of the facts and the events that transpired during the October 29, 2007 incident,
together withite violations brought forward in Commander Martin's Investigative
Report, I am s a ieduling a Pre-Dismissal healing for Thursday, February 14, 2008 at
10:00 hours }vIth Sheriff John Cooke in his office at 1950 O Street, Greeley, Colorado.
The basis forlthe termination recommendation includes the following charges:
Weld Count}*personnel Policy 3-3-10 (A) (2) "Conduct endangering the safety or well-
being of self fellow employees or the public"
Deputy Day endangered the safety and well-being of the public and himself while
responding to the call of a Hit and Ran Traffic Accident An Automated Vehicle
Location report received from Greeley Police Department Information Services
Department oti November 27ih indicated that Deputy Day exceeded the posted speed limit
without using emergency equipment.
Deputy Day endangered the safety and well-being of the public and himself when he
made the decision to pursue the vehicle on CR 2, reaching average speeds of 126 mph
and closing rn ion the high traffic intersection of CR 2 &Hwy 85. Knowing the high
volume of traffic always present at Hwy 85 and CR 2, Deputy Day should have
terminated Mel pursuit
Deputy Day Hdangered the safety and well-being of the public and himself by
discharging hTh service weapon in the direction of the suspect and general direction of
witnesses.
Weld County Personnel Policy 3-3-10 (A)(4) "Failure to comply with lawful orders or
regulations Deputy Day was issued a Garrity Notice and Administrative Leave
Notificationon October 29, 2007. Roth of these documents state"further, you are hereby
ordered not to discuss this investigation with anyone except the superz'isor or investigator
assigned to this investigation". Deputy Day violated this order by discussing this
investigation With Commander Poncelow, Commander Wood and Deputy Tim Schwartz,
Weld County Personnel Policy 3-3-10 (A)(I3) "Dishonesty"Deputy Day initially
stated he did not remember firing his weapon. It wasn't until the end of the initial
interview that' he remembered when the gun was fired. Commander Tuttle's t-x
EXHIBIT
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L .. .' J ''� ..�,1 � A J v a 0 s f t u 11
examination indicates �fc�
interpretation of the test results from the polygraph tvni n m at s si�711 i ant
physiological reactions indicative of deception when Deputy Day denied he lied when he
initially said heftlidn't remember shooting his gun during this incident. Commander
Tuttle also indi ated significant physiological reactions indicative of deception when
Deputy Day ttsied he didn't fire his weapon at the man who ran horn him
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Weld County l Personnel Policy 3-3-10 f.al(18 "Any conduct which is likely to have an
adverse effectizirpon the functioning of County Government" Deputy Day's decision to
respond the way he did to this call and the decisions he made adversely effected the
functioning of the Sheriff's Office.
Weld Count* Sheriffs Office Policy 1.1.6 "Command" Deputy Day failed to respond
calmly and professionally dining this stressful situation. During this incident, Deputy
Day was requited to make split second decisions and he accountable for those decisions.
Deputy Day'vas expected to direct and control situations in a maimer that has a calming
effect on the public and others involved which he did not do.
I
Weld Count'JSherifVs Office Policy 2.7.0 "Physical and Deadly Force"
Deputy Day failed to follow the Use of Force Continuum in his actions when deciding to
pursue the vehicle which was failing to yield. Deputy Day's action of initiating and
sustaining the pursuit until the vehicle crashed was outside the scope of this policy. In
essence, the speed and driving actions of the fleeing vehicle and the speed and driving
actions of Duty Day put the public in ,eat danger and were not justified when
comparing the original call of a TA Hit& Run.
The manner iii which Deputy Day used his firearm is not justified. Deputy Day claims
the gun discharged at a low ready position when he was in a crouched position. A
witness clain4 Deputy Day was directly aiming his gun when it fired. The way Deputy
Day used the gun past the initial contact with the driver is not justified. The use of a
"bluff'in the ryvay it was used in this incident was not a good business or tactical
decision. I
Weld Counts Sheriff's Office Public Safety Bureau Procedure 2.3.12 "Emergency
Response"Deputy Day did not follow proper procedure because he was responding in
emergency made exceeding the speed limit excessively without operating the emergency
equipment Patel car except when he cleared several intersections. Additionally, Deputy
Day did not otify the on duty Commander either directly or by making the declaration of
emergency re ponce through dispatch.
Weld CounIty Sheriff's Office Public Safety Bureau Procedure 2.3.24 "Vehicular
Pursuit"Deputy Day did not follow proper procedure when he initiated the pursuit
because he did not weigh the seriousness of the offense that gave rise to the pursuit
against the iisk to the public if the driver of the vehicle was not immediately
apprehended He did not consider the seriousness of the traffic offense committed verses
the risk of his safety and the safety of the public by the actions of the high speed pursuit
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The high speed pursuit. in this instance; was not justified, not reasonable and not
proportional compared to the original offense committed
A photocopy of Section 3-4-20 Dismissal Procedures, Chapter 3,Persorniel Policies, and
Weld County Code is attached to this notice_ If you have any questions please feel free to
contact me (9719 356.4015 extension 2851.
Sincerely.
Bureau Chief Flittlunan
Public Safety iBhireau
Weld County sheriffs Office
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