Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JOHN DOHERTY, Plaintiffs vs. STATE OF DELAWARE, DEPARTMENT OF CORRECTION, NOREEN RENARD, JOSEPH PAESANI, JAMES LUPINETTI, MICHAEL TIGUE and ROBERT I. GEORGE, JR., Defendants Deposition of JOHN DOHERTY taken pursuant to notice at the Carvel State Building, 6th Floor Civil Conference Room, 820 North French Street, Wilmington, Delaware, beginning at 1:47 p.m., on Tuesday, June 21, 2005, before Allen S. Blank, Registered Merit Reporter and Notary Public. APPEARANCES: RICHARD R. WIER, JR., ESQUIRE RICHARD R. WIER, JR., P.A. 1220 Market Street, Suite 600 Wilmington, DE 19801 For - Plaintiff MARC P. NIEDZIELSKI, ESQUIRE DEPUTY ATTORNEY GENERAL STATE OF DELAWARE DEPARTMENT OF JUSTICE 820 North French Street, 6th Floor Wilmington, DE 19801 For - Defendant ---------------------------------------------------------WILCOX & FETZER, LTD. 1330 King Street - Wilmington, DE 19801 (302) 655-0477 : : : : : : : C.A. No. 04-370-SLR

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A Q A Q BY MR. NIEDZIELSKI: Q Good afternoon, Mr. Doherty. Have you ever been deposed before? Yes, I have. You understand the rules of deposition? Yes. In other words, if for any reason you don't JOHN DOHERTY, the deponent herein, having first been duly sworn on oath, was examined and testified as follows: EXAMINATION

understand a question I ask you, you should let me know and I'll rephrase the question. A Q please? A Q A Q My name is John Doherty, D-o-h-e-r-t-y. And what is your date of birth? 1/21/42. I'm going to hand you a document. Have you Certainly. Could you state your name for the record,

seen this document before? A Yes, I have.

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Q

That's a notice of your deposition, is that

correct, sir? A Q A Q That's correct. And you are the plaintiff in this lawsuit? Yes, I am. Have you brought any documents with you that

would evidence your financial loss, if any, from the demotion that's the subject matter of this lawsuit? MR. WIER: and then we have this. THE WITNESS: Specifically, what I had The only document, Marc, was --

turned over to Mr. Wier sometime ago is the pay scale from the Delaware State Personnel Office from fiscal year 2003. 2003. The effective date of the demotion was

Reflecting the salary grades and the variation

between a Grade 17 and a Grade 13 within the Civil Service system or the merit system, however you want the term it. MR. NIEDZIELSKI: MR. WIER: Okay.

And we have those updated, Marc. There is an updated version

THE WITNESS: attached. BY MR. NIEDZIELSKI: Q

Are you continuing to be compensated at the

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rate you were prior to your demotion? A That's correct. That's correct. I'm

continuing but I'm not being compensated at what would have been the potential available salary within that pay grade, Grade 17. Q But the salary that you were making as, what

was it, an operations manager? A I was the operations manager for the Bureau That's correct.

of Community Corrections. Q A Q A 13. Q Okay.

And what was your pay grade? 17. And you were demoted to what? Senior probation and parole officer, Grade

But your actual salary remained as it

was when you were a Grade 17? A Q It was frozen at that time, yes. And did you continue to get the general

state increase if one was given? A Q same? A Q No. How is that that they are going to be That's correct. Are your retirement benefits going to be the

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different? A Well, they are going to be different because

of the potential move along the points at Grade 17 goes by the high three years. So obviously my high three

years now are not going to be what they could have been had I remained in that position. Q And had you been promoted, it was within

that pay grade, you mean, moved along in that pay grade? A That is not a promotion. Moved along within

that pay grade, as has happened with me in the past. Q Once you got in the pay Grade 17, there is

no promise that you're going to move along that pay grade, is there? A potential. Q A Potential. Okay. There is no promise but there is the

As I said, that's happened before because of

the nature of the work I performed for the agency. Q As the operations manager. And when was the

effective date of your demotion? A It was February -- the effective date was I don't know if it was

sometime in February 2003.

effective on the 1st of February or the 12th or the

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13th or something along that time. Q Okay. MR. NIEDZIELSKI: exhibit? (Doherty Deposition Exhibit No. 1 was marked for identification.) BY MR. NIEDZIELSKI: Q Would you look at the document that's been Could you identify that for us, Would you mark this as an

marked as Doherty 1? please? A

I recognize this as an agreement that had

reached in what they call a predetermination hearing before Richard Seifert, who was the deputy of the Bureau of Prisons for the Department of Correction. However, this is not the agreement that I signed off on. Q I didn't ask you that. I merely asked you

to identify it. This is a letter addressed to you? A Q A Q That is correct. And what's the date on the letter? January 31st, 2003. And does it indicate in the content of the

letter that there was a verbal proposal as to an

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agreement for disciplinary sanctions in the matter? A Q That's correct. All right. That's all the questions I have

on that document. (Doherty Deposition Exhibit No. 2 was marked for identification.) BY MR. NIEDZIELSKI: Q I'm placing another document in front of you Do you recognize

that has been marked as Doherty 2. that document? A Q A Yes, I do. What is that document?

This is the finalized agreement that I

reached with Alan Machtinger, director of Human Resources & Development for the Department of Correction at that time. Q A reprimand. And what was the agreement? The agreement is that I would get a written I would receive no suspension, be demoted

from operations administrator pay Grade 17 to a senior probation and parole officer, Grade 13, retaining my current salary, be assigned to the Plummer House and that the Department would provide me with a copy of the Attorney General's opinion regarding the applicability

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of the Police Officer's Bill of Rights when the Department received it. I wouldn't withdraw -- I

withdraw my current grievance and would not file another grievance in this matter. It also indicates, as a codicil, if you will, to the agreement that I was not making any waiver, expressed or implied, and also that I continue to insist that this disciplinary action was unlawful, meaning unlawful, pursuant to 11 Del Code 9200. Q But, in any event, did the Department of

Corrections perform the first five items? A Q A Q Yes, they did. In accordance with the agreement? Yes, they did. Were you represented by counsel when you

came to this agreement? A yes. I was represented by counsel at that time, However, in the hearing that preceded that

agreement, I was told I wouldn't need a lawyer by the hearing officer. Q A Who is the hearing officer? Joseph Paesani, Deputy Chief of Community

Corrections. Q Did you have the right to an attorney?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 yes.

A

I would have had the right to an attorney,

Q A Q A

You knew that, didn't you? Yes, I did. Did you bring an attorney? No, I didn't, because he told me I wouldn't

need an attorney at that hearing. Q line here. A Q Okay. This matter involves a discipline against Mr. Doherty, let's just start with the time

you, is that correct? A Q That's correct. And is it correct that in around July, or

June, rather, of 2002, there was an investigation? A Q A Q A That is correct. An Internal Affairs investigation? Yes. It involved you, correct? Yes. MR. WIER: May I ask a question, please? Sure.

MR. NIEDZIELSKI: MR. WIER:

My understanding of the scope of

the discovery was that it is limited.

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MR. NIEDZIELSKI: MR. WIER:

Correct.

And so to the extent that these

questions relate to that -MR. NIEDZIELSKI: any detail with them. I'm not going to go into

I just wanted to do a time line.

Just so we put this all in perspective. MR. WIER: BY MR. NIEDZIELSKI: Q There was an investigation. And just for All right.

purposes of the context here.

The subject of that

investigation was yourself, correct? A Q That's correct. Two other probation and parole officers that

you supervised? A Q A Q pronounce? A Q A Q A Kostelnik. Kostelnik? Yes. And also involved a probationary? Yes. That is correct. A gentleman by the name of Rowe? Yes. Another gentleman whose name I can't

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Q A Q A Q

With another name I can't pronounce? Kokotaylo. And that's spelled K-o-k-o-t-a-y-l-o? That sounds pretty close, yes. And the other gentleman's name was

K-o-s-t-e-l-n-i-k? A N-i-k, yes, sir. MR. WIER: Just for the record, I understand But I'll just object at

you're doing a background.

this stage to any questions other than what loss of pay, benefits, et cetera, as it relates to the demotion. MR. NIEDZIELSKI: MR. WIER: You can get into that. MR. NIEDZIELSKI: BY MR. NIEDZIELSKI: Q Did you, in any event, there was an All right. Okay.

And non monetary damages as well.

investigation in June of 2002, correct? A Q That's correct. And then there was a subsequent interview,

you were interviewed by IA at that time, is that correct? A That's correct.

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Q George? A Q A Q

You were subsequently interviewed by Bob

That's correct. Who is the warden? Yes. And he was assigned I guess as an

investigator, is that correct? A Well, I have to tell you, I was very Internal Affairs conducted an I

confused about that. investigation.

I assume they reached a conclusion.

asked for, formally motioned for a copy of the Internal Affairs investigative report, which was denied to me. Robert George conducted an interview. he was investigating the same matter. He claimed that And he

apparently reached certain conclusions, which ended up with me being charged. Q Okay. My point was that you had an

appointment to meet with Mr. George, correct? A Q That's correct. And prior to meeting with Mr. George, you

were explained or he sent you a letter explaining to you the subject matter of the interview? A Q That's correct. And it was about these matters that at some

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point became your discipline, correct? A Q Yes. And at your interview itself on August 7,

2002, you had the right to appear with counsel, did you not? A Q A Yes, I did. And you chose not to? I had not consulted counsel at this point. I thought that everything was

I had no reason to.

aboveboard and that it was going to be an honest investigation. Q My question was, you knew that you could

have brought an attorney? A attorney. Q A Q You chose not to? That's correct. All right. Now, then Mr. George completed I knew that I could have brought an

his investigation. A Q

Did you get a copy of that report?

Yes, I did. And as a result of that report, did you

retain counsel? A Q Yes, I did. You retained an attorney by the name of

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David Anderson? A Q That's correct. And he filed a motion on your behalf, is

that correct? A Q He filed a motion to suppress evidence, yes. Subsequently, you had a hearing, a fact-

finding hearing, is that correct? A Q That's correct. Do you remember when the fact-finding

hearing was? A Q I couldn't remember. At that fact-finding hearing, who presided

at that fact-finding hearing? A Q A Q point? A Actually, the evidence that I requested be Joseph Paesani. And do you know Mr. Paesani? Yes, I do. Were you allowed to bring evidence at this

produced to me to prepare for that hearing was denied. I had formally protested the hearing. I had indicated

to him -- well, to him primarily that the hearing was illegal. And I continued to request documents in the

Department's possession that I believed would help me

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establish my innocence of the accusations made by Robert George. Q Perhaps my question wasn't very well casted.

Perhaps I should try again. A Q Okay. You were not prevented from bringing any

evidence that you wanted to bring with you, were you? A Q A Well, of course, I was. You were? Yes. Because the evidence was in the

Department's possession and they refused to surrender it. Q I mean you could have brought your own

witnesses, correct? A witnesses. Q Paesani -A hearing. I was given no formal notice of this You will find no formal notice of this Well, at the point that you met with Mr. I wasn't given an opportunity to present

hearing anywhere telling me that I had a right to do anything. Q A Okay. Because it doesn't exist.

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Q

Was it scheduled?

Were you notified

sometime prior to -A Q A Q A Q A I was notified by a secretary. When? I have no idea. Was it prior to the hearing? I got a phone call. How many days? Well, the hearing was scheduled. I There Prior to the hearing.

originally got a phone call from a secretary. was a hearing scheduled.

I filed several motions,

including the motion to suppress evidence. Q A Prior to the hearing? Yes. And then I was told that that hearing I said, what do you mean cancelled? I said, does that mean He

was cancelled.

said, just cancelled. postponed?

He says, no, just cancelled. Then some weeks, perhaps a month later, I

was again contacted by the same secretary saying that there would be a hearing. spoke to Mr. Paesani. Special date. I went and

I asked Mr. Paesani if the

Department was going to produce the documents that I had requested. the lawyers. He said, I'm still waiting to hear from I said, well, you know, my lawyer would

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like to have these documents, I'd like to have an opportunity to prepare for this. need a lawyer for this. He says, you don't

At that time, I was aware of a

section in 9200 that said if there is going to be anything more than a reprimand, then these are the rules, the hearing rules, that must be followed. So when Mr. Paesani tells me there is going to be a hearing other than a 9200 hearing and he tells me I don't need a lawyer, my natural assumption was that I was going to get an official reprimand, not a recommendation to be terminated. Q Prior to the hearing that you had with Mr.

Paesani, were you aware of the report by Warden George? A Q A Q A Q Yes, I was. How long prior to that hearing? Oh, quite a long time. A month? I would say probably a month and a half. Did you have an opportunity during that A number --

period of time to look at the report? A Q Yes, I did. And to point out to anyone or get evidence

of what you thought was incorrect in the report? A I attempted to get evidence about incorrect

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statements or incorrect allegations in the report. First of all, there are no -- essentially no specifications in the report. Q Just charges.

Well, one of the allegations was that you

paid the probationer, whose name we can't pronounce, to paint your house? A Q A Q That's correct. That was true, wasn't it? Yes, it was. And on more than one occasion? MR. WIER: Marc, can I ask a question? Sure.

MR. NIEDZIELSKI: MR. WIER:

It seems to me it was somewhat

afield because we weren't I guess intending to go into the substance of his due process claim. MR. NIEDZIELSKI: Let me just drop back.

And if your client would just answer my questions, we don't have to go back there. MR. WIER: Okay? I will have

Well, he can answer.

him answer any question that you ask.

All I'm saying

is I will reserve the right to recall him and ask questions about the substance of the claim. MR. NIEDZIELSKI: BY MR. NIEDZIELSKI: Okay.

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Q

Mr. Doherty, you have explained that the

document you brought with you is from the Delaware State Personnel Office, the pay scales, correct, based on the 40 hours per workweek? A Q Yes. And you said there was a difference between

pay Grade 13 and pay Grade 17, correct? A Q Yes. And that within those pay grades, there are

differences, different percentages of mid point, correct? A Q That's correct. Now, other than that, what do you believe

evidences damages, financial damages, you have suffered as a result of this demotion? A Well, the first damage that I suffered was

that pay Grade 17, of course, is a senior management position, non-union senior management position. Grade

13 is, however, in the bargaining unit and you must either join the bargaining unit or pay a service fee, which initially was $20.00 a month and is now $30.00 a month. And it's a closed shop. So you must pay that

service fee. Q Okay. So you have to pay $30.00 a month

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now? A Q 17 -MR. WIER: your answer? THE WITNESS: the union dues. BY MR. NIEDZIELSKI: Q Is there anything else? MR. WIER: financial loss. THE WITNESS: Oh, what other financial loss? Um-hmm. The question was what is your I think so. With regard to I'm sorry. Have you finished That's correct. Now, when you were the manager at pay Grade

MR. NIEDZIELSKI: THE WITNESS:

Other financial loss didn't That's turned

emerge until the transfer progressed. out to be a significant loss.

Because when I was being

transferred from a management position where I didn't have to carry a firearm to a front line position in a very active line unit, I put in a request to the director of probation and parole first in writing that I could be -- since I had not carried a weapon in a year, that I could be admitted to a training class so that I could be recertified.

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I got no response to that written communication, which I have a receipted copy of. Then the next that issue came up is when I met with the director to turn in my badge and equipment because I was -- had been working for him for several weeks. And I again went over the situation. I said,

you know, I'm being transferred to ICSP. very active street unit.

That is a

I couldn't even carry a gun. But

And he said he would see what he could do. essentially that request was ignored.

Now, once I get to the unit, I'm the only one there that doesn't carry a firearm. So the boss

there says to me, well, you know, you're going to be kind of restricted because I can't have you out doing this job without a firearm. The other issue, of course, is that there is a substantial amount of overtime available within that unit. They are responsible for escape recoveries. The

other overtime that's available to a Grade 13 is there is an overtime list that you can sign up for where you're actually on call or can be called in overtime situations that arise in probation and parole in New Castle County. It is contractual, I believe a But you must carry a firearm.

contractual agreement.

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So if the Department's unresponsive in getting you recertified, you can't carry a firearm. Obviously I'm the only one in the unit that doesn't carry a firearm. I'm the only one in the unit that

can't work overtime. BY MR. NIEDZIELSKI: Q A Are you licensed to carry a firearm? I don't need a license to carry a firearm I mean on

unless I'm off duty, unless it's off duty. duty.

I can carry a firearm at any time when I am not I'm a retired police

working for probation and parole. officer. I'm qualified.

I'm entitled by the state and

federal law to carry a firearm except when I'm working for probation and parole. Q A Q A Q You're licensed to carry a firearm? No. You don't have a license to carry a firearm? No. You don't have a license to carry a

concealed deadly weapon? A No. I'm a retired police officer. I'm

entitled by state and federal law to carry, as long as I'm qualified, to carry a firearm without a license. Q And what do you have to do to qualify?

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A

You have to qualify according to the

qualifications standards of the parent agency, whichever agency you're retired from, which is the Wilmington City Police Department. Q A Q A And do you do that? No. Did you say that you are licensed or you -I'm not licensed. I do not have a license I

from the Superior Court to carry a concealed weapon. said I'm entitled by law to carry a concealed weapon without a license. Q But then you said only if you qualify on an

annual basis or whatever it is? A Q A Q firearm. A Q A That is correct. Have you done that? No, I haven't. Well, then you're not licensed to carry a Is that what you're saying? Yes. Okay. But I could. All I'd have to do is go and No, I can't carry a firearm now, no.

shoot at the Wilmington Police range. Q And what do you have to do to be recertified

to carry a firearm for the state?

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A Q A

For probation and parole? Yes. I would have to go through a training

program, probably the 40 hour basic firearms program. Q A Did you go through that once, that program? Actually, not only did I go through it but I

also trained and certified just about every probation officer in the state at that time. Q firearm? A This is because of probation and parole The regulations on carrying a firearm. And so for a year, you didn't carry a

regulations.

That's why I can't carry a firearm. Q A Q Because you haven't been recertified? Because I haven't been recertified. Can't you just go down to the corrections

range and recertify? A Q A No, sir, I can not. Why is that? Because probation and parole, that's the

Department of Correction, Bureau of Prison Standards. Probation and parole has a much higher standard to carry a firearm. You've got to go back through certain I would suspect

parts of the certification course.

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through most of the firearms, the 40 hour firearms training program. Q Have you taken any efforts to do that? MR. WIER: BY MR. NIEDZIELSKI: Q A boss. Q A Q A Q A And what was the response? There was no response. And so what did you do about that? What could I do about it? Well, I'm saying, did you follow up? I did nothing. MR. WIER: Asked and answered. I thought You indicated that you wrote to someone? The director of probation and parole. The Asked and answered.

you said he asked twice. THE WITNESS: BY MR. NIEDZIELSKI: Q A person. Q All right. Now, at the time you were the So you asked once. I asked twice. By e-mail or something? I did nothing else.

Once by e-mail and once in

pay Grade 17 operations manager, what was your work location?

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A Q A Q A Q A Q A

Headquarters in Dover. How did you get there every day? I drove my personal car. And did you go down Route 1? Yes. And was there an expense with that? The tolls. How much are they? I have no idea what they are right now.

There is a discounted, an Easy Pass that are discounted. Q A Q A Q Do you have an Easy Pass? Yes, I do. Would it be at least two dollars a day? Probably, yes. In addition to that, there was mileage on

your vehicle? A Q one way? A I have no -- what's the distance from here Yes. How many miles would you put on your vehicle

to headquarters, from Wilmington to headquarters? Fifty-seven miles, 54 miles. Q I don't know.

And would that be twice a day?

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A Q

Twice a day.

Down and back, yes.

So it would be fair to say that when you

worked in Dover as a pay Grade 17, in addition to paying two dollars in tolls a day, you also had to drive a hundred miles a day? A Q vehicle? A Q Yes. You no longer have to put a hundred miles a That is correct. And that was wear and tear on your private

day on your vehicle, do you? A Q No. Is the wear and tear on your vehicle much

less today than it was when you were a pay Grade 17? A Q A officer. Yes. My expenses are more.

Why is that? Well, I am assigned as court liaison I have to go to Superior Court or one of the Perhaps three

county courts just about every day.

times, two to three times a day, depending on where hearings are. And the cost is somewhere -- anywhere

from 10 to 15 dollars a day. Q A In what? The parking costs.

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Q A Q A Q A Q

Aren't they reimbursed? No, they are not. Why not? I have no idea. Have you asked for reimbursement? Yes. You're saying as part of your job, you're

required to go to court and pay parking and you're not reimbursed for that? A Q A That's correct. And you have put in for parking? Well, we have asked for a parking pass, you For some reason,

know, so that we could use the pass. Plummer Center just doesn't have it. Q A Who is your supervisor? Michael Cocuzza. Grade 15.

He is a probation and

parole supervisor. Q A

And he works at the Plummer Center? Yes, he does. So I keep my receipts and I

report it to the IRS and try to get some of it back. Q Okay. Any other expenses that we haven't

discussed that you have now or financial expenses you now have that you didn't have before? A Not that I'm aware of.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 document. 3. have.

MR. NIEDZIELSKI:

That's all the questions I

MR. WIER: this document.

No redirect.

We have referenced

So I'd like to at least mark it. Okay. We'll mark this as

MR. NIEDZIELSKI:

(Doherty Deposition Exhibit No. 3 was marked for identification.) MR. WIER: Doherty 3. And I would like to mark a

MR. NIEDZIELSKI:

We don't have to discuss it because you

don't want to talk about it. MR. WIER: talk about it. It is not that I don't want to

It is just that my understanding -Just get your client to

MR. NIEDZIELSKI:

agree that he did file that letter and see if we can just attach that. It is his letter and his petition. What is it you're asking?

MR. WIER: BY MR. NIEDZIELSKI: Q Doherty? A Q

Have you seen this document before, Mr.

That is correct. This is the document you filed, I believe,

in support of your contentions?

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A Q thing. A Q sorry.

No, what you have handed me is -I'm sorry. I may have handed you the wrong

You handed me the chief's correspondence. Okay. I did hand you the wrong thing. I'm

Here.

Is that it?

It should be stamped

January 28th at the top. A Q No, this one is stamped January 17. Is that Machtinger? MR. WIER: Is this the one? That's it. Got it.

MR. NIEDZIELSKI: THE WITNESS:

I recognize this as a step one

grievance, yes, and also a petition to vacate an order of disciplinary action. MR. NIEDZIELSKI: please? (Doherty Deposition Exhibit No. 4 was marked for identification.) MR. NIEDZIELSKI: questions I have. Do you want to read or waive the reading? MR. WIER: I'm sorry. I apologize. Let me Thank you. That's all the Can you mark that as 4,

just go on the record and ask him one question just to

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wrap it up. It's your position that the case law supports the proposition that non monetary losses are also losses within the property right issue? MR. NIEDZIELSKI: MR. WIER: Um-hmm.

But the Court has directed us to

initiate discovery in terms of loss of pay and benefits? MR. NIEDZIELSKI: MR. WIER: question. EXAMINATION BY MR. WIER: Q Mr. Doherty, did you also lose non economic Correct.

So I want to ask just one general

or suffer non economic losses as a result of the demotion? A Q Oh, yes, I have. Absolutely.

Do you generally want to just categorize

what they are? MR. NIEDZIELSKI: I'm going to object, of But go ahead.

course, because it's beyond the scope. THE WITNESS: All right.

I have been a law Retired

enforcement officer in Delaware for 38 years.

from the Wilmington City Police Department as an

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inspector, second in command. Department.

Wilmington City Police

I held positions of trust in the police

department in the criminal investigation division for 14 years. I at one time was the commanding officer of I

the Attorney General's special investigation unit. commanded the patrol division. I was responsible as

chief of staff inspections for all internal investigations and internal discipline within the police department. I come to probation and parole.

And immediately when I arrived at probation and parole -BY MR. NIEDZIELSKI: Q A Prior to that, where else did you work? I was also an instructor since 1972 at the I taught police science, A number of separate classes, I

University of Delaware. homicide investigation.

including education and training in law enforcement. was there until 1996.

I have also lectured at police academies and universities essentially throughout the country, University of South Carolina, John Jay School of Criminal Justice. I have a very significant

representation in the criminal justice community. Q Did you also work in federal law

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enforcement? A After I retired from police -- I had to I was injured. You

retire on a disability pension.

can't carry a disability, line of duty disability beyond your 20th anniversary. years and six months. So I had to retire at 19

I went to work for the U.S. While I And

Marshall's Service in Federal Court security. was going to graduate school at the same time.

then I took the job in probation and parole, not necessarily to be a probation and parole officer, even though that was -- that had to be done. But to help

probation and parole establish policies, procedures, training programs. There was a dramatic shift occurring at that time. Probation and parole officers were empowered to They were untrained. They were

make arrests. unequipped.

Initially, I was sent out to Harrisburg,

Pennsylvania, where I attended and graduated from the Pennsylvania Probation & Parole Academy. And then I

immediately started developing a training program, first in arrest procedures, followed immediately thereafter by development and design of the basic officer's training program for probation and parole officers, which is still being used today. Eventually

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the firearms training program was married to that.

I

participated in training officers in those areas for I would imagine in the neighborhood of eight years. So this incident has resulted in the destruction of a reputation 38 years in the making. People back away from you. I essentially have no

friends in Delaware Probation & Parole because I'm kind of isolated from them. I think I'm the only probation

and parole officer in the state that works in a maintenance garage. In between going to court. And I feel it's a And

it's a devastating effect.

devastating effect that took place because I was not allowed to defend myself at the kind of hearing that 11 Del Code 9200 requires where I could have questioned people who made fraudulent statements within those reports that you have. And I could have seen

supervision records generated by Officer Kostelnik that I know were fraudulent, that I know were doctored since I had seen them between the time I saw them and the time of the investigation had initiated. I could have established that my immediate superior at the time that I was a Grade 15 at New Castle just absolutely flagrantly lied to Internal Affairs.

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MR. NIEDZIELSKI: MR. WIER:

Just hold on.

Those are my questions. Okay. You just opened the

MR. NIEDZIELSKI:

BY MR. WIER: Q about. The non economic loss is what I was talking As part of your job as a pay Grade 17, what

were your duties and to whom did you report? A I reported directly to Chief Renard, the Other

chief of the Bureau of Community Corrections.

duties consisted of internal investigations, developing policy and procedure at the bureau level. to serve at that time as the coordinator of communications, radio communications for the entire department. Q A Where was your office located? My office was at headquarters about 20 steps I continued

from the Commissioner's door. Q When you were demoted, did the benefits of

that position change adversely? A Well, the first thing that happened was --

first of all, I got the notice in the mail as opposed to from people that I saw and worked with every day. Notice came in the mail. And I was instructed to, you

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know, basically get out of Dodge.

Transferred over to

probation, Dover District of Probation & Parole in Dover. Answering to the director of Probation &

Parole, who works in New Castle. During that period, I had a chance to prepare some documents. decision. The petition to vacate the

I generated initially a grievance on the

thing, which I realized would be unproductive immediately. There was no sense in even doing that if

they weren't going to recognize my basic rights under the Constitution and under the laws of the state. Q A Are you referring to LEBOR? Sure. Delaware code. There didn't seem to

be any sense in going forward with any procedure involving the same people that had made the decisions to deny me my rights in the first place. So I,

frankly, I stopped all of that and here I am. Q Did the Attorney General's Office at some

point, prior to this lawsuit, I think you testified that you were denied rights under the Law Enforcement Officer's Bill of Rights? A I was denied rights under the Law

Enforcement Officer's Bill of Rights at the hearing itself, at which point I would have been able to

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establish that the regional manager was untruthful in his statements to Internal Affairs. Q The Department said you were not covered by

the Law Enforcement Officer's Bill of Rights? A anything. The Department never responded formally to They never responded to any of my requests

for the production of evidence, they never responded to my requests to interview, reinterview the regional manager after I provided additional information to Robert George. He told me that he would conduct He did not. The question file Because

additional interviews.

on the offender, which was very significant.

within my recollection, there is a memorandum of reference in that file explaining exactly when and where I notified the regional manager of our attempts, our extraordinary attempts to try to keep this one boot camper from going back to prison. once. Q And it just didn't work. Did there subsequently come a time when you We just tried it

were provided with an Attorney General's opinion as set forth in Doherty No. 3? A Q A Yes, there was. And what did that opinion conclude? The opinion concludes that I was entitled to

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all of the rights outlined in 9200, including the hearing. And including access to the exclusionary rule

within 9200 that would have prevented any unlawfully obtained evidence from being admitted at the Trial Board. MR. NIEDZIELSKI: MR. WIER: Are you done?

That's all I have. EXAMINATION

BY MR. NIEDZIELSKI: Q The evidence that you're talking about is a

financial document that you brought with you to the IA? A Q A That is correct. You brought them with you? Yes, I did. To show them to the internal

investigator. Q Okay. All of your present arguments, your

contentions, are contained in your grievance, your petition, are they not? A Q They are. You work 40 hours a week? Do you work 40

hours a week? A Q A Now? Yes. Usually quite a bit, somewhat more than 40

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hours a week. Q A Q Do you put in for overtime? No. Did you work more than 40 hours a week when

you were in Dover? A Q A Q Yes. Frequently.

Did you get overtime then? No. And you're saying that because you don't

carry a gun, you can't get overtime? A That's correct. I can't. I have no access There

to carry a gun.

That has not always been true.

have been times during extreme manpower constraints where I have had to go out and help in hunting down escapees. There have been times when I have been the

only one, including the offender, that didn't have a weapon at a scene, at a scene of like a search and arrest or whatever. And there were times when I have

had to arrest people without a weapon or any other means of defense. Q A So you don't feel you need a weapon? Of course I need a weapon to do this job. MR. NIEDZIELSKI: next document, please? Would you mark this as the

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(Doherty Deposition Exhibit No. 5 was marked for identification.) BY MR. NIEDZIELSKI: Q Doherty? A Q A Q A Q A Yes, I have. What is it? It's an e-mail I sent to the chief. And you're talking about Noreen Renard? That's correct. Was it truthful what you wrote there? Yep. MR. NIEDZIELSKI: that we have. Will you waive reading? MR. WIER: We'll read and sign. MR. NIEDZIELSKI: Okay. Thank you. No, we won't waive reading. That's all the questions Have you ever seen this document before, Mr.

(Deposition concluded at 2:28 p.m.)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 2 15 16 17 4 18 19 5 20 21 22 23 24 E-mail to Noreen Renard from John Doherty dated Wednesday, December 31 39 Letter dated January 27, 2003, to Chief Noreen Renard from John Doherty, with attachments 30 3 Letter dated February 13, 2003, to John Doherty from Alan Machtinger Delaware State Personnel Office Pay Grade Table 7 29 NUMBER 1 E X H I B I T S DOHERTY DEPOSITION DESCRIPTION Letter dated January 31, 2003, to John Doherty from Richard Seifert MARKED 6 DEPONENT: JOHN DOHERTY PAGE 2 31 38 I N D E X

Examination by Mr. Niedzielski Examination by Mr. Weir Examination by Mr. Niedzielski

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 BEEN COMPLETED AND SIGNED BY THE DEPONENT THE ERRATA SHEET AFTER IT HAS REPLACE THIS PAGE WITH SIGNATURE NOT WAIVED DEPOSITION CERTIFICATE

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State of Delaware County of New Castle

: :

CERTIFICATE OF REPORTER I, Allen S. Blank, Registered Merit Reporter, do hereby certify that there came before me on the 21st day of June, 2005, the deponent herein, JOHN DOHERTY, who was duly sworn by me and thereafter examined by counsel for the respective parties; that the questions asked of said deponent and the answers given were taken down by me in Stenotype notes and thereafter transcribed by use of computer-aided transcription and computer printer under my direction. I further certify that the foregoing is a true and correct transcript of the testimony given at said examination of said witness. I further certify that I am not counsel, attorney, or relative of either party, or otherwise interested in the event of this suit.

__________________________________ 16 Allen S. Blank, RMR 17 Certification No. 103-RPR 18 (Expires January 31, 2008) 19 20 21 22 23 24 DATED: June 23, 2005

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