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HomeMy WebLinkAbout121719852 3 CITY OF SEBASTIAN SPECIAL CITY COUNCIL MEETING PRE-TERMINATION HEARING December 17, 1985 6 7 8 9 10 11 12 13 14 PRESIDING OFFICER: COU~CI L~.EN: CITY ATTORNEY: CLERK: APPEARANCES: 5~ayor Jim Gallagher Vice-5~ayor Gene Harris Richard Szeluga Peter Vallone Thomas C. Palmer, Esquire Elizabeth Reid 15 P~OSECUT©R FOR CITY OF SEBASTIAn,: 16 17 Gregory J. Gore, Esquire 1507 U. S. Highway 1 Sebastian, Florida 32958 18 19 DEFENSE ATTORNEY FOR RALPH E. SHITH: 2O 21 22 23 SALIBA & ~cDONOUGH, P. A. 2121 14th Avenue Vero Beach, Florida 32960 By: Wayne R. ~cDonough, Esquire 24 25 1 I N/D E X 2 3 Proffered Testimony 4 Deputy Reichert 5 -Deputy Garfield 8 Detective Lenz 7 Lisa Brock 8 Officer Catalone 9 Frank DiVicenzo 10 officer Bennett 11 Lt. Puscher 12 Chief Eappi Page 67 71 71 74 76 78 79 81 83 13 14 15 16 17 18 19 Testimony of Ralph E. Smith Direct Examination by Mr. McDonough Cross Examination by Mr. Gore 85 101 20 21 22 EXHIBITS Exhibits A and B, two depositions 41 23 24 25 1 P R O C E E D I N G S 2 'MAYOR GALLAGHER: The purpose of this meeting 3 is to continue the pre~termination hearing of Ralph Smith. 4 The meeting was begun on the 26th of November and -- the 5 meeting was started on the the 26th of November. The 6 Council continued it over to this date because they ? requested some additional written material. Those 8 materials have been supplied to the City Council. 9 10 11 this time. Okay. Mr. Gore, we'll let you have the floor at 12 MR. GORE: Thank you. 13 Members of the Council, we're on the charge 14 that the former officer, Ralph Smith, made false and 15 inconsistent and potentially perjurious statements under 16 oath, regarding the case of State of Florida versus 17 Ceth Patrick Flood. 18 Previously -- there were other charges 19 against the former police officer, which have been 20 referred to the Administration for internal investigations. 21 I would like to state that the Council is 22 going to view two separate depositions, one of which was 23 held Tuesday, August 27, and the other which was held 24 Friday, October 18, concerning defenses of former Mayor 25 Pat Flood. B.asically, the assertion of the latter deposition is that there was an attitude on behalf of the police department to, quote, unduly discriminate against ex-Mayor Pat Flood, which the City has denied. The earlier deposition of Tuesday, August 27, 6 1985, would indicate, by Officer Smith, that there, indeed, ? was no attitude on the part of the police department, 8 regarding a prosecutorial and discriminatory attitude 9 towards the Mayor. 10 We're not here to question which deposition 11 is accurate. We're not here to put on trial actions of 12 police officers, former or present, or actions of the 13 present police chief, nor the administration. 14 We're here to delve into the charges that 15 a police officer for the city made contradictory statements 16 which, in sum and parcel, result in lying under oath. 17 I want Council to be made aware of the fact 18 that there will be an attempt -- or, I presume there will 19 be an attempt by the able Counsel on behalf of Officer 20 Smith, to verify that the charges substantiated, or the 21 charges alleged in the October 18 deposition are, in fact, 22 true.. 23 Once again, this is not the inquiry before 24 the City Councill Should inquiries be made regarding 25 actions which took place during the administration of Mayor Flood, or immediately thereafter., that is for another time and another place. I would object and I will request, a ruling from the Chair that the investigation 4 be limited to these two depositions, both under oath. § I expect~to ~demonstrate to the Council that 6 neither substantiates each other. Statements were made ? in the former, statements were made in the latter 8 deposition; apparently one is true, one is not true and @ I request the City Council, again, not delve into the 10 aspects of which deposition may or may not be true 11 according to the beliefs of the deponent, Ralph Smith. 12 Something happened. The statements are 13 contradictory. The~ charge is that they were made under 14 oath and I would hope that the Council would limit itself 15 to these two depositions, both of which i will present 16 to the City on a page by page delineation, and rest my 17 case. 18 If the Council will excuse I do plan to make 19 objections, as I'm sure Counsel for Mr. Smith will make 20 objections during the hearing. We will require rulings. 21 It's quite often that we say that the matter 22 is open and shut. Perhaps the matter is not open and 23 shut but, once again, if we want to avoid a circus 24 atmosphere and we want to avoid bringing up four years 25 of acrimony, which existed between the political forces 1 in this Community, then I suggest that we limit outselves 2 to these two.depositions and I would further suggest that, 3 in the .event we try to open three years of wounds which 4 haven't probably healed, which should have healed, that 5 we will lose sight of~this grievance procedure, which is 6 mainly that %he accused made false statements under oath. 7 Thank you. $ MAYOR GALLAGHER: Attorney McDonough, do 9 you want to make an opening statement? 10 MR. McDONOUGH: Good afternoon, Mr. Mayor 11 and Council members. 12 Before I address you in connection with the 13 continuation of my opening statement, I believe the last 14 time we were here and the last time we attempted to 15 proceed with this was back on November 26, 1985. I am 16 sure some of us may have forgotten what was said, it's 17 been so long. 18 But I would like to readopt and continue 19 my opening statement at that point in time. 20 Before i do so, before I do so I would ask 21 the Mayor and/or Council members to invoke the rule of 22 sequestration. Today, we have various witnesses that we 23 have subpoenaed, which we intend to call on our behalf 24 and, consequently, we would ask the Mayor and/orCity 25 Council members to invoke the rule, which means,specificall that all the witnesses we have here, some of which are standing behind 'this, in the back of the room, be disallowed from remaining in Council chambers during the course of the presentation of the case. We think it is only fair that that occur and, of course, any and all witnesses should be removed from Council chambers so that when there is questioning going on and when there is direct examination and/or cross examination, the other officers and witnesses are not 10 priVy to it. 11 12 13 14 15 16 18 19 20 21 22 23 24 25 So, I would ask you, Mr. Mayor, at this time, to invoke the rule before I would proceed with my opening. MAYOR GALLAGHER: No, sir. And Council members, let me advise Council, if, at any time, the Council or any member feels like they would tike to overrule the Chair, I will receive ~otions immediately after my rulin~ to overrule the Chair. If that is upheld by three members of the Council the Chair shall be overruled. MR. VALLONE: I'd like to make a motion to over rule the Chair in reference to this request in front of us by Attorney McDonough. MAYOR GALLAGHER: We have a motion to overrule the Chair. Is there a second? Motion dies for lack of second. Continue. MR. McDONOUGH: If I may, now, I will continue with my opening statement. In that regard, I assure you, Mr. Mayor and members of the Council, ~we are not here to, using Mr. Gore's terms, open up wounds that should have ~een repaired during the last three years. ? We're here today for one reason and one reason alone and 8 that ~ to represent Officer Smith. 9 I submit to you that the evidence is going 10 to show, if in fact it hasn't already shown, through all 11 the various disciplinary procedures that Officer Smith 12 has undergone, that he has, effectively, been railroaded 13 in this particular case. 14 Mr. Gore would very much like each one of 15 you to look only at two documents; the prior deposition 16 and the latter deposition. 17 That would be very convenient; that would 18 be very simple; that would be very easy. 19 And it would also be very easy, I 20 respectfully submit, for each and every one of you. 21 But I would also suggest that nobody in this 22 room lives in an ivory tower. I would suggest that life 23 is not blacks and whites. I suggest that the facts and 24 circumstances surrounding Officer Smith's first 25 termination, reinstatement, and then subsequent 1 termination is, indeed, very .relevant. 2 .If I may briefly refresh your memory, 3 Officer. Smith was suspended under letter dated Oct6ber 18, 4 1985 by Chief Nappi pursuant to an investigation that was 5 undertaken by various officers and I guess it was 6 Lt. Puscher and Lt. Emrick which, again, culminated in 7 Chief Nappi's letter of suspension of October 18, 1985. 8 Coincidentally, that date is the same date that Officer 9 Smith gave his second deposition, which, of course, is 10 before each and everyone of you. 11 That deposition contained· various testimony 12 which responded to specific questions relating to the 13 allegations of abuse of police arrest powers and abuse 14 of police powers, abuse of police power of the City of 15 Sebastian. 16 I presume that each member has reviewed 17 at least excerpts of that three and one half hour hearing 18 which was conducted before Mayor Gallagher, during which 19 time various officers testified that it was known by 20 Police Officer Smith that he was going to be candid at 21 the deposition of October 18 relative to answering 22 specific auestions, pertaining to specific allegations 23 of abuse of police power. That was known around the 24 Station and that was known sometime during the end of 25 September, 1985. Coincidentally, during the first week 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 of October, 19.85, we find that there were certain 2 affidavits submitted by some of the officers, including 3 Officer Bennett, Officer Catalone, officer Witt. Some 4 of those affidavits refer to incidents which occurred 5 back in June of 1985. 6 I submit to you, Members, that you have got 7 to look at the facts surrounding this whole ordeal and 8 I'll submit to you that after you entertain the facts you 9 will determine, as I submit, that this whole situation 10 is outrageous. The initial deposition taken of Officer Smith contained general questionsl posed to him. You'll note in the initial deposition that he referenced that there was more than three times the police administration inferred that there was a policy to get a citizen of this city. You'll also note in the initial deposition of Ralph Smith that he said you need to ask me specific questions relative to specific instances. Specific questions were not posed to him in the initial deposition, because that information was not available at that time. You have before you the deposition of Lisa Brock, which was taken on or about October 4, 1985. That deposition relates verious instances of police abuse and that deposition relates those instances in response to specific questions. Those same specific 1 questions were posed to Officer Smith in his deposition 2 of October 18, 1985. 3 Now, .we note and I presume we all know that 4 Officer Smith was reinstated after that three and one half 5 hour hearing by Mayor Gallagher, only to be suspended 6 the following day. The following day we had an emergency 7 hearing requested by the Mayor; an emergency hearing 8 whereupon Officer Smith was suspended. 9 Officer Smith now has been suspended for 10 several weeks and I submit to you that he was suspended 11 because his testimony was unfavorable 12 You have to refer to the ordinances under 13 which Officer Smith was suspended, and I quote, "Making 14 or publishing false, vicious, or malicious statements 15 concerning any employee, supervisor or the City, or its 16 operation." 17 wherein lies the false statements about 18 officers in the City? You've got to determine the 19 factual basis and circumstances surrounding his testimony. 20 You have got to do that.. 21 The other charge that he is immoral and/or 22 unethical to the extent that he should not be allowed to 23 remain a Sebastian Police Officer. I sub~.it to you that 24 if Officer Smith had the tenacity, the temerity to 25 testify under oath, in response to specific questions, of specific instances of.police abuse he is, indeed, ethical 2 and moral; that he should not be facing termination 3 because' he had the audacity to be truthful to questions 4 that were unfavorable to his employer. $ For that reason I submit to you these whole 8 proceedings are outrageous. ? This man is standing before this Council 8 being accused of a liar. Mr. Gore doesn't want to look 9 at which deposition is more truthful than the others. 10 I submit the evidence is that there are no perjurous statements made. I further submit that this Council has an obligation to 10ok at the facts and circumstances 12 13 surrounding this testimony. 14 We're not here to put the Police Department 15 on trial. We're not here to get involved in Pat Flood's 16 acrimony, if any exists against the City, or his acrimony 17 or the Chief's acrimony against Pat Flood, or all that 18 stuff. I submit to you, I don't care about that. 19 I submit to you my client, Ralph Smith, doesn ' t care 20 about that. 21 I do submit to you that you have got to look 22 into the facts and circumstances surrounding these 23 depositions. You have got to listen to and review 24 Lisa Brock's deposition and her testimony. You have 25 asked for transcriptions of all depositions. This hearing 19 2O 21 22 23 24 25 1 was continued for, some, over two weeks for that particular 2 purpose. The City has incurred all kinds of expenses 3 to review additional depositions. 4 Certainly Mr. Gore, now, is not going to 5 suggest to this Council, "Let's disregard all the expense, 6 let's disregard all the depositions." 7 The door was opened, if you will. Council 8 continued this for over two weeks while my client 9 remained unemployed and not being paid. 10 You've got the depositions before you. I 11 need not remind you there are inconsistencies in various 12 depositions. Council has got to 10ok into the facts 13 and circumstances and if you refuse to do that I 14 respectfully submit you are doing this City and its is citizens a grave disservice. 16 I respectfully submit that you are 17 representatives of this City and you represent citizens 18 and the citizenry of Sebastian are not stupid; they are not ignorant. They see what's going on. My client, here, today, is being accused of being a liar. He was fired because his testimony was unfavorable. I submit you have an obligation to.at, least listen to these witnesses. MAYOR GALLAGHER: are ready. Attorney Gore, if you MR. 'GORE: Excuse me, Mr. Mayor. I believe Mr. Lulich has been employed by the Police Department. MR. LULICH: With the permission of The 4 Chair and the Council, I'd just like to make just a very 5 brief partial opening statement. 6 MR. McDONOUGH: For the record -- excuse me-- ? Attorney Lulich. I don't mean to be disrespectful but 8 I object to Attorney Lulich making any opening statement 9 whatsoever and, very frankly, I'm not certain as to what 10 capacity he is~before the Council today. I heard, through 11 the grapevine, he may be representing various police 12 officers. I'm not certain of that but I do know that he 13 is not an attorney of record before this Council and he 14 certainly does not have the right to get in here today ls and making opening statements. 16 MAYOR GALLAGHER: Before I rule on your 17 objection, Attorney Lulich, who are you representing? 18 MR. LULICH: I am representing se~,eral 19 parties; Douglas, Officer Douglas DiSomma, Kenneth Bennett, 20 David Puscher, Andrew Catalone and Chief Gerald Nappi and-- 21 MAYOR GALLAGHER: I'm going to sustain the 22 objection until such a time as those individuals are 23 involved directly in this matter. 24 But wehad opening statements from·Greg 25 and Wayne McDonough, his opening, the other party in the 1 in the case., the'Defendant, Nd i'll welcome you, if any 2 of your clients are involved in this, too, I welcome you 3 to participate. 4 MR. LULICH: 5 already there has been an involvement of my clients by 6 saying that there was an abuse of police power and in ? that regard I would like to bring up a matter that the $ law controls, where there might be any abuse of power 9 and I would just like to lay in front of you gentlemen ~, 10 the proper statute so that if there is any more comment 11 on abuse of police power that you will have the Florida 12 statutes in that regard and the City of Sebastian Police 13 Department procedure for handling any complaints 14 regarding abuse of power. 15 MAYOR GALLAGHER: If the Council will 16 receive that information -- 17 MR. VALLONE: I'm going to object to this. 18 I don't want to hear this man. I don't even know who 19 he is and it's not relevant to what we want to hear and 20 he's not an attorney of record and I want to go on the 21 public record that he should stand mute and I make that 22 motion. 23 MAYOR GALLAGHER: We have a motion. Is 24 there a secOnd? 25 The motion dies for lack of second. By your permission, Mr. Chairman, 1 Mr. 'Lulich, What -- because I understand 2 that Attorney McDonough made a blanket statement of 3 police .abuse but if you represent individuals I would 4 prefer that you hold these, you know, these individuals 5 are not directly involved right now -- 8 MR. LULICH: Thank you, Mr. Chairman. ? MAYOR GALLAGHER: -- and you are not $ representing the Police Department, which Attorney 9 McDonough was referring to and, in any case, it's just 10 a matter of his opinion. 11 So, I'm going to sustain the objection, 12 Attorney I~cDonougk's objection. 13 14 15 16 17 18 19 20 21 22 23 24 25 Eut I will invite you, of course, to represent your clients, in accordance with my ruling. MR. LULICH: Thank you very much. MAYOR GALLAGHER: Attorney Gore, are you prepared -- MR. SZELUGA: Mr. Mayor. MAYOR GALLAGHER: Yes, sir. MR. SZELUGA: Before we continue with that particular meeting, statements are being made, or have been made about charges, and so forth. Before we continue i would like to have the specific charges which are being raised against Officer Smith so I'll know ~wh~ the heck I'm going to be discussing, what questions I'm 1 going to ask and what evidence that I have to take into 2 consideration. 3 MAYOR GALLAGHER: Well, the specific charges 4 as outlined in the charges that were presented to Council 5 at the special meeting for that purpose. 6 MR. SZELUGA: I have a letter dated November ? 21st regarding, relative to Mayor's report to City Council, 8 charge Section 211. 9 MAYOR GALLAGHER: All right. The specific 10 charge arises from -- Well, it's in the letter that 11 officer Smith lied under oath; that being that there are 12 conflicting depositions. Okay? That falls into the 13 standard operating procedures, blanket category of making 14 false, or whatever kind of statement. Okay? And the 1§ thing is at one time or another, where and what time 16 they are and because there are conflicting statements, 17 that false statements were made on the depositions and, 18 of course, and~, also, the fact that lying under oath 19 would fall into the category in part two, section 57, 20 as far as unfit for the job in which the person was in 21 at the time because of the offense, because, being the 22 case that police officers are required to testify in 23 24 25 so many cases. MR. SZELUGA: MAYOR GALLAGHER: Okay. Is there any charge-- That's all the charges 1 that I presented. 2 .MR. SZELUGA: As far as a letter dated 3 November 21, it says, "I recommend his immediate 4 termination." Paragraph -- I'll read it for the record. 5 "Be advised that Officer Smith is suspended 6 without pay effective Thursday, November 21, 1985, at 7 2400 hours because he fails to meet ~rescri~ed standards 8 of work and has,' through his false sworn depositions, @ exhibited unacceptable ~ora!ity and ethics to the extent 10 it makes him unsuitable for the kind of employment in 11 City service. I recommend his immediate termination." 12 In other words, anything relative to 13 these depositions of Officer Smith are the only charges 14 that are being presented here? 15 MAYOR GALLAGHER: That's all I have charged 16 Officer Smith with, was making false statements at one 17 time or another. It's in August or October. 18 time, I don't know. 19 ~R. SZELUGA: ~'~AYOR GALLAGHER: 20 21 Gore? At which Oka~,. Would you proceed, Attorney 22 MR. GORE: Members of the Council, I would 23 ~irect your attention to, and I'll cive you some time, 24 the depositions of Ralph Smith, respectively dated 25 August 27 and October 18 of 1985, the case of the State 1 of Florida versus Ceth Patrick Flood, Jr., Defendant, 2 Case Number 1850891, in the County Court of Indian River 3 County, Florida, both depositions being under oath. 4 I had earlier, I reviewed the letter and 5 indicated that, in a former deposition of August 27 that § the balance of Officer Smith's testimony, asserts that ? there were no directives issued by the Police Department 8 nor any atmosphere existing among the superior officers @ of the department regarding discriminatory actions 10 directed toward anyone and in the latter deposition 11 Corporal Smith asserts that there were numerous 12 occasions and events surrounding Corporal Smith'. that 13 led Corporal Smith to believe that such a biased 14 atmosphere existed. Again, I would like to direct the 15 Council's attention on a page by page basis wherein one 15 assertion was completely contradicted by a latter 17 assertion. 18 If we can begin, please, on the August 27, 19 1985 deposition -- 20 ~AYOR GALLAGHER: Attorney Gore, would you ~1 move ~at microphone a little closer. It's not quite 22 picking up. Turn it down, because you are talking down 23 so, kind of, turn it down. 24 MR. GORE: Is this better? 25 MAYOR GALLAGHER: Yeah, that's better. 1 MR. GORE: If I may direct your attention 2 on the August 27 deposition, page 16, line 19, question, 3 "Has Chief Nappi ever told you to get Flood or any of his 4 friends or relatives?" Answer, "No more so than you tell 5 anybody to get any other 10w-life crook. You know. It's 6 like anybody that's doing things wrong out there, that's ? trying to throw the shaft to anybody. You know. no more 8 so than that. If Joe Blow is out there selling dope 9 you know, you say, 'Go get him,' You know." 10 MR. McDONOUGH: Mr. Chairman, excuse me for 11 interrupting, and this will be the last time. i 12 apologize to Attorney Gore. As Attorney Gore said, 13 during the course of this presentation I will be objecting 14 an~ I object to Attorney Gore ~ic~inc and choosing, 15 cem~aring one phrase to another. Attorney Gore should know that, in a Court of law you cannot pick and choose. You've got to take each document in its context. 17 18 Consequently, I will submit that in this procedure, in looking at one phrase in comparison to another is totally 20 improper and does not properly portray, or aCcurately 21 portray the picture, the questions and answers accordingly. 22 So, I would submit that if Attorney Gore wants to sit 23 here and read one deposition and then read the other one, that's fine but it's tOtally improper and it's inaccurate 25 to proceed as he's proposing to proceed and I object, 20 / 1 accordingly. 2 3 4 on it. 5 8 10 11 12 13 depositions. 14 15 16 17 18 19 20 21 22 23 24 25 .MR. GORE: If I may respond. MAYOR GALLAGHER: Well, let me make a ruling You'll have an opportunity to present Mr. Smith's case anyway you want to. I'm going to overrule the objection. Would you continue, Attorney Gore. MR, GORE: Without comment, Mr. Mayor, on page -- MAYOR GALLAGHER: you can comment all you want. If-you want to comment, MR. GORE: The Council has before it the The Council and the City 'has requested that I delve into the depositions in order to determine whether contradictory statements were made under oath, amounting to false accusations. That is what I have done. The record speaks for itself. If Council would prefer, I could read the entire depositions, both of them and, then, come back line by line but I think the Council has not requested that that be done. MAYOR GALLAGHER: that, Council Members? MR. VALLONE: Would you like to have I've already read them. I can appreciate the concern of Mr. McDonough, here, but I read them' too'and 'if you want to take it line by line, I can see where it can be 1 somewhat discriminatory because the rest of the people 2 don't.know the whole content of Exhibit A and Exhibit B. 3 MR. GORE: Well, Mr. Councilman, these are 4 a public record now and they're accessible to the City 5 and far be it from me to go against the directive of the 6 Council. Wh~t I'm pointing out is I am prosecuting the ? case and I'm trying to point out inconsistencies in the 6 shortest or most time-wise economical manner afforded us. 9 That's why I had to go by designation, line per line, 10 much as if you would read a contract and point to it 11 if there are certain inconsistencies and nobody -- so, I 12 believe I have the various inconsistencies in the 13 depositions which cannot be justified, one vis a vis the 14 other. 15 MAYOR GALLAGHER: well, in any case, we're 16 not here to --.these are public records. Anybody could 17 pick them up but these gentlemen aren't here to, you know, 18 plead a case with the audience, here. They're here to 19 plead with us and if we have all read them we can be 20 satisfied with him reading them line by line,unless 21 Council wants all the depositions to be read. 22 5~R. VALLOKE: In fact, you already made a 23 ruling on it. 24 25 very brief. MR. GORE: Once, again, i would like 15 16 17 18 19 20 21 22 23 24 25 6 7 8 direction?" 10 12 13 14 Now, page number 5, line B, "Had the Chief or anyone else.in the City Police administration directed you all to effectively sit on Pat Flood's house?" Answer, "Prior-to that, I honestly can't say. Not specifically can't say." Question, "Did you and Puscher and/or Lisa Brock go back and sit on Flood's house pursuant to Nappi's Answer, "No." Question,"Why not?" Answer, "I knew it was wrong. Anything like that that we were ever directed to do, I, myself and Lisa, we didn't do it. It's wrong." And I would suggest to the Council that that would be an insinuation that there was an attitude to prosecute the members of the former administration. Page 18 of August 27 deposition, line 14, if I may -- or line two. MR. VALLONE: What page? MR. GORE: Eighteen, line 14. Excuse me. page 17. I'm sorry. Line four, "This guy, Flood -- now this is my opinion. This ain't Chief Nappi's opinion -- Flood has got away with too much. We've tried to get to him t~rough th.e ...... Grand Jury and they just smack him on the hand. Well, 1 this time they went .-- we -.th-ought they had ~nough 2 probable cause because he didn't arrest him on the spot. 3 We didn't harrass him. We didn't jerk him around. 4 Nobody humiliated him in front of everybody. We went 5 the nice, easy way to show probable cause. They thought 8 we had probable cause, or we got the warrant and ? the capias and whatever it was and it was just a 8 matter of -- " 9 Question, "Tell me, specifically, the conversations 10 and circumstances when Chief Nappi told you to get 11 Pat Flood." 12 I will go ahead and leave that to Defense 13 Counsel, as far as the explanation. 14 Again, on the deposition of October 18, 1985, 15 page 6, on line 5, "-- have you ever been directed in the 16 past or since that time by Nappi to get license plates 17 of anybody who was at or near Pat Flood's house?" 18 Answer, "Yes. This part of it was just 19 compacted into this 12-month period. Telling us to get 20 tag numbers and everything, that part was stopped. It was 21 all right in there in that specified time." 22 Question, "You had been directed on more 23 than one occasion to get tag numbers of Flood's . "Right 24 supp°rters~" Answer, 25 Question, "After that 12-month period,had 1 Chief Nappi ever 'told you in the presence of any other 2 officers to get Pat Flood or to get Pat Flood's support&rs?' 3 Answer,. "Yes." 4 Question, "Can you tell me when that may 5 have occurred, or the number .of times?" 8 Answer, "I can't tell you the number of 7 times because it was too many." 8 Question, "More than five?" Answer, "Yes." 9 Again, going to the deposition of August 27, 10 again we're 9oing to the earlier deposition, as opposed 11 to the latter deposition. 12 Excuse me, Council Members. Page 17, at the 13 bottom, line 24, question, on the earlier deposition. 14 "Again, specifically, when has Nappi told 15 you to get Pat Flood?" 16 Answer, "I don't know." 17 Question,"But it happened more than once? 18 Is that a true statement?" 19 Answer, "No." 20 Question, "It's only happened one time?" 21 Answer, "Qualify, when you say, 'Get him,' 22 you know. That could be construed two or three ways. 23 Doing, you know, trumping up stUff, or go out jerk him 24 around." 25 Question, "Well, tell me how you interpreted 1 those phrases." 2 ..Answer, "When you said it -- Okay? -- I 3 interpr~eted it as, go out and jerk him around, harrass him, 4 trump up -- " 5 Question, "And he's told you that one time, 6 anyway?" ? Answer, "No. He's never told us to go out 8 and trump and harrass and jerk him around, or anything 9 like that." 10 Question, "What has he told you?" 11 Answer, "Build good cases on anybody, any of 12 the people out there. It don't matter who it is." 13 All right. 14 On page -- August 27, page 21. I'm sorry. 15 Excuse me. We're at the October 18 deposition. Page 6, 16 line 14 -- or line 2 page 6. 17 Question, "Have you been directed in addition 18 to what you just said when the Chief asked you why you 19 weren't getting license plates, have you ever been 20 directed in the past or since that time by ~appi to get 21 license plates of anybody who was at or near Pat Flood's 22 house?" 23 Answer, "Yes. That part of it was just 24 compacted into this 12-month period. Telling us'to get 25 tag numbers and everything, that part was stopped. It was all right in'there in that specified time." -Question, "Had you been directed on more than one occasion to get tag numbers of Flood's supporters?" Answer, "Right." Question, "After that 12-month period, had Chief Nappi ever told you in the presence of any other 8 officers to get Pat Flood or to get Pat Flood's 9 supporters?" 10 Answer, "Yes." 11 Question, "Can you tell me when that may 12 have occurred, or the number of times?" 13 Answer, "I can't tell you the number of 14 times because it was too many." 15 Question, "More than five?" 18 Answer, "Yes." 17 I know this is very dry testimony, Council 18 Members, but that is all that we have right here and 19 just bear with me. 20 If we may, on page 21 of the August 27 21 deposition, it states, "As far as I know nobody has ever harrassed Flood. Nobody has ever gone after Flood. You 22 know. We're all -- Gerry's not telling us to get out 23 and get him, like it's trying to be sounding." 24 25 On page 7, approximately line 11 of the 1 deposition of .October 18, question, "You wouldn't have 2 to be 'told to arrest anybody if anybody broke the law, 3 but he mentioned Flood and his supporters by name on more 4 than five occasions?" 5 Answer, "Right." $ Question, "Did he do this in your presence ? and in the presence of other officers?" 8 Answer, "Yes." 9 Question, "Who were the other officers?" 10 Answer, "Catalone, Bennett, DiSomma, Lisa, 11 Puscher, Angie Driscom, Scott Sherbrook, Tommy Butts at 12 one point. That's about all I can remember right now." 13 Question, "And you're telling me today, 14 under oath, these other officers, to your personal 15 knowledge, have been told the same thing, and to your 16 personal knowledge, more than once?" 17 Answer, on the next page, "Yes, sir." 18 On page 28 of the former deposition -- 19 Excuse me. On page 22 of the August deposition. The 20 answer is, "No. Not go get him. You see, if you see 21 him do things that's reason that you would get anybody 22 else and just because he's Flood, don't let him go. 23 In other words, if he commits a crime, if it fits the 24 bill, then get him. That way. Don't go-out and get 25 him, jerk him up and make something up, take something little and make something big out of it. .It's not that." -On page 28 of the former deposition, on line 11., the question proposed by Mr. McDonough,-- MAYOR GALLAGHER: Which deposition? MR. GORE: The August 27 deposition, page 28 line 11, question, "And tell me again -- because I'm not sure I'm clear on what you're telling me -- tell me again what occurred during thsse conversations that the Chief was talking about Flood." Answer, Well it wasn't -- I'm getting back, now -- It's not 'Go get Flood.' It ain't." Question, "What was the inference that was Because anybody could draw their own inference. 10 11 12 13 drawn? 14 15 16 17 18 19 20 21 22 23 24 25 I'm asking --" Answer, "That's the inference." Question, "That's the inference that you drew? Answer, "Okay. No. Not 'Go get Flood.' inference was, go out, look. If he's doing something My wrong, then arrest him or cite him. Whatever. It was not, 'Go out harrass Flood.' As far as I know, nobody --" Again, next page, "ever did harrass him and nobody ever construed him as 'Harrass Flood,'jerk him around.' anything like that. If he does something wrong, if you would ticket somebody else for it, or would write somebody else for it, %~rite him. It doesn't matter 2 3 "Yes . that he's 'Flood." The second deposition, page 6, line 7, This part of it was just compacted into this 12- 4 month period. Telling us to get tag numbers and 5 everything, that part was stopped. It was all right in 6 that specified time.,, 7 Down to line 14, "After that 12-month period 8 had Chief Nappi .ever told you in the presence of any 9 other officers to get Pat Flood or to get Pat Flood's 10 supporters?" 11 Answer, "Yes." 12 Question, "Can you tell me when that may 13 have occurred or the number of times?" 14 Ans~er, "I can't tell you the number of 15 times because it was too many." 16 Question, "~.~ore than five?" 17 Answer, "Yes." 18 On page 29, on line number 8 -- prior to 19 that. Line number 6, question, regarding prosecution of 20 Pat Flood, question, "And conversations of that nature 21 came up five times?" 22 Answer, by Officer Smith, "Listen, I've 23 been there two and a half years, jerked around by Flood 24 and, yes, it"s gone on more than that many'times 'because 25 I've brought it up at times. Everybody has brought it 1 up at times." Question, "The Chief has brought it up at 2 3 times?" 4 6 7 gentlemen. 8 Answer, "Right. 5 Chief for that." Finally, on page 32. Okay. But we can't blame the I qualify the "finally" 21 On line number 32, on page 32, the earlier 22 deposition, line number 12, "Have you or any other officers 23 ever been directed to patrol Flood's house?" 24 Answer, o Ive not and as far as anybody 25 else, I do not know. Probably be a good place to patrol Line number 8, page 31, 'Question, "You 9 mentioned something about Lisa before. Were you talking 10 about Lisa Smith, your ex-wife?" 11 Answer, "Right." 12 Question, "Well,I mean, she's a truthful 13 person, based on your knowledge; isn't she?" 14 Answer, "Well, it depends on whether SOnny, 15 Jess Brock got a hold of her or not." 16 Question, You seem to me, I drew some 17 inferences from what you are saying there. Is she a 18 truthful person, or are you telling me she's not truthful?" 19 Answer, "Do you want me to explain? If you 20 do, I'll get into it." 1 but it's never been said to be done." 2 .Question,"That's my question. Ail right?" 3 On page 3, line 15, "First of all, I need 4 to know whether or not you were ever directed by Chief § Nappi, Lt. Puscher, or any body else from the city 6 administration to effectively sit on Pat Flood's house, ? and take note of all people that were located at his 8 house, and basically to follow them after they left his 9 house, sometime in February and March of '84?" 10 Answer, "Yes." 11 Members of the Council, it's my position 12 that these statements under oath are so directly 13 contradictory as to constitute testimony and behavior 14 which would require dismissal and/or suspension of 15 Ralph Smith from the City of Sebastian Police Department. 16 MAYOR GALLAGHER: Attorney Gore. 17 Attorney McDonough. 18 MR. McDONOUGH: Mr. Mayor and Members of 19 the Council, I'll briefly respond to what Attorney Gore 20 has stated. I'll try to follow this outline, which I 21 believe he was attempting to follow in his letter to you 22 of November 21, '85; give you some brief comments in 23 connection to what I see as not being inconsistent 24 statements. Don't forget, we're here today charging 25 Ralph Smith with being a liar and that he specifically 1 and direCtly testified to specific questions in one 2 deposition contrary to specific questions in the other 3 deposition. 4 We're not here today talking in generalties. 5 We're not here today talking in general attitudes, or 6 tones of the'witness in one deposition or the other. 7 You have got to look at specific 8 contradictory statements made in connection with and in 9 answering specific questions and I submit that these 10 fragmentary presentations by Mr. Gore do not contain 11 specific contradictory statements. 12 Mr. Gore did not emphasize, I note, testimony 13 by Mister -- strike that -- Officer Smith, in the first 14 deposition, whereupon he said that Chief Nappi and the 15 administration on more than three occasions made inferences 16 to focus upon a citizen of this city. 17 Nor did Mr. Gore focus upon testimony by 18 Officer Smith in the first deposition where he said 19 "You've got to give me specific questions." 20 More than once he said, "You're close but 21 that is not it." 22 And I submit that that is very relevant, 23 for the purposes of today's hearing. 24 Very briefly, if I may 25 Again, I'm going to try to follow Greg Gore's 1 outline on this letter. 2 through, I guess, 22, on the old deposition. 3 Let's see. 4 He's got here page 16, line 19, Ail right? The question is, "Has Chief Nappi ever told 5 you to get Flood or any of his friends or relatives?" 6 Smith answers, "No more so than anybody else. ? Or, "No more so than you tell anybody to get any other 8 low-life crook." 9 Mr. Gore submits that in the second 10 deposition, on page five, line 15 there is a specific 11 contradictory statement. 12 Where is the contradiction? 13 Did you -- the question is, "Did you and 14 Puscher and/or Lisa go back and sit on Flood's house 15 pursuant to Nappi's direction? 16 Answer, "No." Question, "Why not?" 17 Answer, "I knew it was wrong." 18 His second allegation, he refers to page 18, 19 of line 14 in the old deposition. Smith says, "He's never told us to co out and trump and harrass Flood, or 20 to jerk him around." That's the specific answer by 21 22 Ralph Smith, using those specific terms. 23 The example Mt. Gore has given us is not 24 specifically contradictory. 25 Now, Mr. Gore may want this Council to believe that the specific instances of alleged police abuse are tantamount to jerking around, and/or harrassing a citizen but we're not here today to interpret what one statement is or one statement isn't. We're here today pursuant to Mr. Gore's opening argument and his presentation to find specific contradictory statements. 8 9 "But it happened more than once? 10 true statement?" 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 His third example on page 18, line 2. is that a Answer, "No." Question, " It's only happened one time?" And, then, what does Ralph Smith say? "Qualify, when you say, 'Get him," you know. That could be construed two or three ways." Ralph Smith, in his initial deposition is asking me to be specific. He wants specific questions posed to him. He is a trained ~olice officer. Any person ~;t"~o ]las ever been deposed or questioned by an attorney knows not to specifically volunteer information. He's asked me to be specific. What do you mean? same thino. same language where Smith answered, "But he never told us to go out and trump up, harrass and jerk him around." Page 18, line 13, on the old depo, again, the Apparently Mr. Gore is referring to that The second depo, specific instances were asked about getting tags. He answered, truthfully, "Yes." On page 21, line 21 -- this is the old depo. I'm following his outline, here. Line 13, There's a question that is, "Who was present during these conversations in addition to you and the Chief?" And, then, Smith answers -- well, I go on to ask, "There's been someone present more than just you 10 two on occasions, has there not been? 11 Answer, "Right." 12 Question, "Tell me who they were." 13 Answer, "Puscher has been there." .14 Up in the lines, the first line on page 21 15 I ask, "Are you telling me that on more than five 16 occasions you think the Chief has inferred that you 17 18 19 20 21 22 23 24 25 should return the favor to Flood. Is that a fair question? "That's a fair question, but -- Smith says, _ Question, Is that a fair statement? Is that true?" right." He says, "No. You're close but you ain't Again, he's looking for specific questions, whic~ were not posed to him during the initial deposition because specific information was not furnished to me, 1 which was, which resulted in specific questions being 2 posed to both Lisa Brock in her deposition of October 4 3 and his., Smith's, deposition of October 18. 4 Again, on page 28, Mr. Gore refers to that 5 language wherein Mr. Smith again refers to the inferences 6 that was to Be drawn. ? On page 7 of the October deposition, Smith 8 is saying, on line 6, he was intelligent enough to know 9 it was not the way, to harrass him. He would just say, 10 if they break the law, get him, which was common sense 11 for'anybody that broke the law. You didn't have to be 12 told that. You wouldn't have to be told to arrest 13 anyone if they broke the law but he mentioned Flood and 14 his supporters by name on more than five occasions and 15 Smith answers, "Right." 16 On page 29, lines 1 through 14 of the old 17 deposition, which Mr. Gore refers to. 'Again, that 18 relates to the language --I'm not going to read it to 19 you again -- where Smith says, uses the words harrass, 20 jerk him around. 21 On page 6 of the new deposition specific 22 questions are asked of Smith. 23 "Have you ever been directed in the past 24 to get licensetags?" His answer is, "Yes." 25 That's not a specific contradictory statement. One point he is .saying we weren't advised to harrass or jerk him around. In the other deposition I asked specifically, "Were you ever directed to aet~ tags, to is a perjurer. 4 which he said "Yes." 5 Again, we may all want to conclude that 6 being directed to take tag numbers is tantamount to and ? constitutes harrassing or jerking someone around but 8 we're not here to draw conclusions what those terms mean. 9 You're here being told that there were specific contra- l0 dictory statements. 11 Mr. Gore refers to page 32, line 12 of the 12 old depo. "Have you ever been asked to patrol Flood's 13 house?" He said, "No." 14 In the new depo I asked specifically, in 15 terms of time frame, "Have you been asked to take note 16 of all the people who were located at his house and to 17 follow them after they left the house sometime in 18 February or March of '84, to which Smith said, "Yes." 19 Now, you all may want to interpret patrolling 20 the house to mean taking down tag numbers there and, 21 then, following people who leave but that's, again, 22 not before you; that's not a specific contradictory 23 statement. 24 You're here, being told that Ralph Smith 25 I believe Attorney Gore has furnished 1 you all a copy of the statute and it refers to a specific 2 statutory section which talks about inconsistent statements 3 specific inconsistent statements. 4 We're not here today, and I submit that 5 Ralph Smith should not be terminated because of one' 6 Counsel's interpretation of what harrass~ means where that ? interpretation may be contrary to someone else's 6 interpretation. 9 You're here being told he made specific 10 contradictory statements to specific questions, to which 11 he answered contradictory answers and, frankly, I submit 12 that we haven't heard that tonight. 13 Again, Ralph Smith, during the initial 14 deposition, on more than one occasion - - and you all 15 read those things -- ask me to qualify; What do I mean. 16 What do I mean. Ask me specific questions, which were 17 not specifically posed during the initial; they were 18 during the second depo. 19 Gentlemen, I respectfully submit, you do not have directly contradictory statements, so as to 20 21 justify termination of Ralph Smith and, of course, I 22 submit that we have considerable testimony that should 23 be introduced, which you all should consider, in 24 connection with the facts and circumstances--surrounding 25 these depositions. Mr. Gore has presented to you phrases versus other.phrases, which by the very nature were submitted out of context and that's improper, especially in light of the fact that'you are now being asked to terminate Ralph Smith based on this. I don't know what your pleasure is, in terms of the next stage of the proceeding but I might request, on behalf of the Court Reporter, that we take a five-minute break and let her finuers rest. ~,~AYOR GALLAGHER: first, Councilman? I want to determine something. ~.~ould you let me rule g t0 11 12 13 Have you rested your presentation? 14 MR. GORE: ~o, ~r. Chairman. I would 15 request that the testimony be limited to the depositions. 16 Period. 17 MAYOR GALLAGHER: In that case, I just want 18 to ask you. Okay. Attorney Palmer may be able to help 19 me out and advise me as to the next stage of the 20 proceeding, prior to the recess. I want to determine 21 as to when we get back what procedure we're going to 22 follow. Now, if you intend to continue with your 23 presentation, tell me. Then we'll know. 24 MR. ~cDONOUGH:. Oh, sure. We have 25 additional witnesses and testimony to present. 1 MAYOR GALLAGHER: Okay. We'll have a, if 2 there's no objection we'll have a recess and we'll allow 3 attorney McDonough to continue his defense when we 4 reconvene. 5 Ten minute recess. 6 (Hearing in recess.) ? MAYOR GALLAGHER: This special Council 8 meeting, pre-termination hearing is back in session. Let 9 the record show that the Council members who were ~resent 10 before the recess are present at the reconvening of the 11 meeting. 12 We left off with Attorney McDonough 13 responding to the presentation from Attorney Gore, so we 14 will continue with Attorney ~cDonouch. 15 ~R. ~cDON©UGH: Before we proceed, I was 16 responding to comments made by Attorney Gore. I'd like 17 to know if he is going to rest his case before I start 18 presenting my evidence in that regard. Just a matter of 19 procedure. 20 21 22 23 24 25 ~AYOR GALLAGHER: Attorney Gore? HR. GORE: Yes. Mayor and members of the Council, our case in chief is essentially the depositions, th~ statements contained on one deposition and those contained on .the ................ other. I would request that the depositions of Ralph 1 Smith of August 27, .1985 and the deposition of Ralph Smita 2 October 18, 1985 be entered into evidence at this point. 3 MAYOR GALLAGHER: Okay. City Clerk has a 4 copy provided here of those two depositions; is that 5 correct? 6 CLERK: Yes. ? MAYOR GALLAGHER: We will call, mark the 8 deposition of August 27 Exhibit A and the October 18 9 deposition of Ralph Smith Exhibit B and they're entered 10 in the record. 11 MAYOR GALLAGHER: Yes, sir. 12 MR. GORE: Mr. Mayor and members of the 13 Council, I have no further presentation, other than the 14 statements in the depositions. 15 MAYOR GALLAGHER: Thank you, Attorney Gore. 16 Attorney McDonough. 17 MR. McDONOUGH: It's my understanding that, 18 Attorney Gore, that you have rested. 19 Just so I can proceed. You have rested? 20 MR. GORE: Other than in the event of 21 rebuttal witnesses, I'd like to have the opportunity to 22 recall and things like that, I rest, yes. 23 MR. McDONOUGH: On that, Er. ~ayor, I would 24 like to move, now, forwhat is called a motion to dismiss, 25 or a judoment of acauittal. 1 As 'You,. Mr. Mayor and Council members, I'm 2 sure are aware the City has the burden to prove the 3 allegations made against Officer Smith. it is the City 4 who has suspended officer Smith without pay. It is the 5 City who are making allegations that Officer Smith 6 was specifically inconsistent in the two depositions. It ? is the City who is alleging that Officer Smith has 8 effectively purjured himself. Accordingly, the City, of 9 course, has the burden to present sufficient evidence 10 to show and support those allegations. 11 We would submit, at this time, based on the 12 case presented, that there has not been sufficient 13 evidence to support the allegations and the alleged 14 violations of the City ordinances so as to justify 15 terminating Officer Smith. 16 I say there's insufficient evidence on more 17 than one ground. Initially, the City has not shown and 18 has not introduced evidence that Officer Smith was sworn 19 and, in fact, testified under oath as to both depositions. 20 That's critical. The City has got to show that and 21 they've got to introduce testimony to that effect. 22 Secondly, and I reassert my previous 23 position, that the various phrases in and lines picked 24 and chosen by Attorney Gore is improper because these 25 questions and answers are clearly taken out of context. 1 I've indicated to you and I believe the 2 depositions reflect that a certain phrase or word may be 3 used in one deposition to which Attorney Gore says was 4 inconsistent and'contradictory to a different word and/or 5 phrase in the second deposition. We cannot get involved 6 in semantics~ when it comes to alleging a person has ? committed perjury. 8 I would respectfully submit that you cannot 9 draw your own conclusions and/or definitions of the word 10 "harrass" to include taking down license tags, or being 11 lambasted for not taking down tags. 12 You cannot construe those two instances to 13 mean the same thing, for the purpose of determining that 14 Officer Smith is a perjurer. 15 He is a trained police officer who has been 16 deposed many times. Any Attorney, any trial attorney 17 worth his salt tells his client, "You don't volunteer 18 information at depositions. You answer specific questions. 19 If the questions are not sufficiently specific, then, of 20 course, you cannot provide specific responsive answers. 21 That is critically important in this matter. 22 At the sake of repeating myself, more than 23 once in the first deposition Officer Smith said, "Close 24 but that's not it." Officer Smith said, "Well, what do 25 you mean by that?" Officer Smith said,"you have to be, to ask me a specific example." .Those specific questions were posed at the second ~eposition, to which he specifically responded. There are no specific contradictory answers to specific and identical questions containe~ in these ~e~ositions an~ I would submit, based on the lack of specific evidence in that regard that this case should not co an!' furti~er. Ee should not be terminated on the charges alleged, for the reason I've announced. 10 11 12 on this. MAYOR GALLAGHER: Okay. Let me just rule It's going to take a couple of instances, here. First of all, 'I can answer the objection, 13 one part of your motion to dismiss, the contention that 14 there's no evidence presented by the City that Officer 15 Smith was not duly sworn. I direct Counsel's attention 16 to Exhibit A, to the certificate Page, page 35, by 17 Patricia Earoo Held, Notary Public, that Ralph Smith was 18 duly sworn in, during this deposition, prior to it. On 19 each deposition on about the third page, you'll find that 20 the beginning sentence is that he was sworn in. Alsc, 21 Exhibit B, on page 19, there's a Certificate by Richard 22 W. Hall, Notary Public, that Ralph Smith was duly sworn. 23 So, I would not consider that particular 24 part. We do have documentation that officer Smith was 25 sworn on both depositions. However, I do believe that the Exhibits, A and B, as presented by Attorney Gore on behalf of the City do show sufficient evidence to support the charges that there are violations of the City ordinances. As far as.spec~ficality is concerned, that's a decision for the Council to make. But I'm going to deny your motion to dismiss and that will stand as such unless I'm overruled by the 9 Council. 10 11 12 MR. VALLONE: Mr. Mayor, at this time, I think it's proper that I make a motion to overrule. I don't think you're listening to what we're 13 saying here, specifics, and based on that -- you just 14 said to give it to the Council on what was presented. 15 So, I'm going to overrule your objection to the motion 16 to dismiss, based on the information. It has not been 17 proven, Exhibit A to Exhibit B, that Corporal Smith, 18 19 20 21 22 23 24 25 there are no specifics, and that is the key word that the Council should look into. There's no specific instances that show that this individual has lied. So, based on that I make a motion to override your motion-.-" .'-- MAYOR GALLAGHER: Let's clarify, for the record, there was no motion made by the Chair'. you make your motion. I mean, your objection. objection. MR. VALLONE: .Change that. MAYOR GALLAGHER: Excuse me. i overrule your There is no objection 4 made by the Chair. I made a ruling. Now, if you want 5 to overrule the Chair, just make a motion to overrule $ the Chair. ? MR. VALLONE: I make a motion to overrule 8 the Chair. 9 MAYOR GALLAGHER: There's a motion to 10 over rule the Chair, and that's on the decision that the 11 dismissal be denied. If you want to dismiss the case, 12 second the motion and vote in the affirmative. 13 Is there a second? 14 Motion dies from lack of second. 15 Attorney ~cDonough, you may continue. 16 MR. McDONOUGH: All right. 17 At this time I'd like to call a few witnesses 18 and they'll be brief, I assure you. 19 First, if I may call Deputy Reichert here. 20 MR. GORE: Again, Council, I would object 21 to the introduction of any testimony, other than by the 22 officers charged with the violations of the City ordinance, 23 by making false contradictory statements and, again, it 24 has been my r-equest that the Council direct itsel.f to.the 25 two depositions and any attempt to expand these proceedings 1 would involve possibly acrimonious statements concerning 2 the past practices of the City administration, present 3 and former, which is not on trial at this point. What 4 is on trial is the fact that there are two depositions 5 and where there are inconsistent statements made between 6 the two of them and I would object to any other witnesses ? and I will raise the objection -- other than Ralph Smith ~- 8 and I request a 'ruling from the Chair. 9 Thank you. 10 MR. McDONOUGH: I'd like to respond. 11 MAYOR GALLAGHER: Before I rule I'd like 12 to ask the nature of the testimony of that particular 13 witness you expect to give. 14 MR. McDONOUGH: Well, if I may first -- Okay. 15 the nature of that testimony, this particular witness is 16 to testify as to the his opinion as to Officer Smith's 17 truth and veracity; his reputation, if you will. 18 Officer Reichert is a Deputy with the Indian 19 River County Sheriff's Department, has known officer Smith 20 professionally and otherwise for a number of years and 21 is here prepared today to testify under oath before the 22 Mayor and Council members that he knows and has an 23 opinion that Officer Smith has a reputation for being 24 truthful and honest 'and 'that's the purpose for 'which I 25 would like to offer Deputy Reichert's testimony and, in that regard, I. further would like to respond to Mr.. Gore's argument -- MAYOR GALLAGHER: Well, just let me rule on that. Being the case that any testimony by Officer 5 Reichert will be merely opinion, I'll sustain the 6 objection of Attorney Gore. ? Mr. Reichert, you can be excused. 8 MR. VALLONE: Just a minute. You made a 9 ruling and I overrule the Chair and I think the Chair is 10 really, really being very biased and in reference to 11 getting the truth out here. 12 Now, I don't know your intention, Mr. Mayor, 13 but you're showing this Council that you're not want to 14 hear the truth. 15 Now, before you made a rule showing that that 18 individual would like to go ahead and justify that that 17 individual, here, is telling the truth and you went 18 ahead and said -- I can't believe it. I really can't 19 believe it. 20 what are vou doing to this town? Do you 21 want the truth to come out? 22 I'm calling you, that you should stand mute 23 because you originally fired that individual and 24 suspended this individual and you don't want.-the trut.h ....... 25 co~in? cut. I call tt~at you skould stand mute, along with 1 Councilman Roth, 'here. That's what I call, and I don't 2 really care what anyone else thinks but I'm telling you, I'm saying 3 you're really blowing your mind on this one. 4 I overrule the Chair. 5 I can't believe it. 6 MAYOR GALLAGHER: I really can't. Councilman Vallone, you 16 17 18 19 20 21 22 floor? 23 motion. 24 25 10 objection -- whatever -- and I would like to tell the 11 rest of this Council, boy, you better get off your duff. 12 I don't know what you're doing here. You don't want the 13 truth. Say something. 14 MAYOR GALLAGHER: You have a motion to 15 overrule the Chair. Is there a second? MR VALLONE: I don't believe it. MAYOR GALLAGHER: Councilman Vallone, would you please refrain. Is there a second to the motion? MR. SZELUGA: Mr. 5~ayor, may I have the MAYOR GALLAGt{ER: If not, we'll let the motion die. can have the floor. Motion dies for lack of a second. You have to second the Then you 7 have to make a motion. 8 9 takes. MR. VALLONE: Hey, listen. Whatever it I'm going to make a motion to overrule your 1 councilman Szeluga. 2 -MR. SZELUGA: I've been listening and I've 3 been reading. Mr, McDonough, the witnesses that you are 4 attempting to bring before this Council, their specific 5 purpose is, is specifically What? What is the specific 6 purpose of the witnesses that you are going to present ? before this Council? 8 MR. McDONOUGH: Councilman Szeluga, that 9 question was specifically posed to me by Mayor Gallagher 10 as to Corporal Reichert and I stated in direct response 11 to that question that Corporal Reichert is here today to 12 testify to what he believes to be Officer Smith's 13 reputation for being truthful and honest and I submit to 14 you, Councilman Szeluga, and ~ayor Gallagher, and other 15 Council members, that nothing could be more relavant. 16 You are accusing Officer Smith of being a 17 liar and a perjurer and nothing is more relevant than to 18 allow Officer, Deputy Reichert, Investigator Lenz, and 19 Deputy Garfiel~ to Get up here and testify as to -- 20 MR. SZELUGA: My question was to verify the, 21 exactly what I heard, as to the reason why the witnesses 22 were here. 23 MAYOR GALLAGHER: 24 25 If the Council will, I'll briefly explain why my' ruling Qas that way, The reason being is we're not up here questioning about particular, outside .the realm of this particular matter, the two depositions and the two' times, on October 18 and August ~27, during the times of these depositions. I'm~ not asking for anything about Mr. Smith's character, other than at those specific times .and, unless Deputy Reichert was there and knows something material about the specific, these specific depositions that were taken at that specific time, it's really irrelevant, as far as the charges are 9 concerned. 10 11 12 MR. GORE: Mr. ~ayor. 5~AYOR GALLAGHER: Yes, Mr. Gore. MR. GORE: If I may, I would like to 13 reaffirm ~at. We are here on these two depositions. 14 As to Mr. Smith's behavior at other times, 15 I don't believe it's relevant. We're talking about these 16 two depositions, under oath, which is before the City 17 Council. Period. 18 MR. SZELUGA: This is the reason why I 19 wanted to take the floor at this particular time. If 20 we're going to be talking about specific questions, 21 specific answers, contradictory answers, and so forth. 22 So, I would like to go through several of 23 the things that were not brought out. 24 MAYOR'GALLAGHER: Councilman S'zeluga, I'm 25 sorry I have to interrupt you but we're not into that stage in this hearing. Council's deliberations. You can reserve that for the Right now we're right in the middle of the presentation by Mr. McDonough. We're going to have to listen to his presentation in its entirety, at which the 6 Council will close the pre-termination hearing and go ? into their deliberations on the matter. Then you'll have 8 an opportunity to point out whatever points you want to @ make. 10 MR. HARRIS: I, like Councilman Szeluga, 11 would like to know if any of these witnesses, are they 12 able to give specifics to these two documents that we're 13 looking at. I mean -- 14 MR. MCDONOUGH: Councilman Harris, again, 15 in addition to the three witnesses, Deputy Reichert, 16 Investigator Lenz, and Deputy Garfield, we have additional 17 witnesses, including Lisa Brock, who will affirm and 18 confirm testimony as to specific instances of specific 19 allegations of abuse of police discretion. 20 You have before you that deposition on 21 October 4. I have also Mr. Frank DiVicenzo, who is a 22 polygraph operator, who asked Lisa Brock, during a 23 polygraph, as to her truthfulness in her responses and 24 you have before you that doCumenti that is to say, 25 Mr. DiVicenzo's report that confirms, based on his exper~ testimony, that She .told the truth, as to those specific instances of.police abuse. In addition, I intend to call Lt. Puscher, 4 who, on previous occasions, has stated that he did not 5 recall being lambasted by Chief Nappi for not sitting on 6 Pat Flood's house and taking down tags. ? I specifically asked Lt. Puscher, "Does that 8 mean it didn't occur?" To which he answered, "No. It 9 means I do not recall." 10 That further supports answers furnished by 11 Officer Smith to specific questions. 12 I intend to call Officer Bennett who denied 13 in a previous deposition -- 14 15 17 You sit down. 18 MR. LULICH: MR.McDOKOUGH: MR. VALLONE: Objection. Excuse me-- Wait a minute. You sit down. MAYOR GALLAGHER: 19 way out of order. 20 MR. VALLONE: Councilman Vallone, you're No, I'm not. 21 MR. GORE: Does Councilman Vallone understand 22 that the City officers are entitled to re7~resentation? 23 ~R. McDOI<0UGH: Excuse me, Attorney Gore, I 24 am responding to a specific -- 25 ~!?~. V?,LLOi~E: You Letter do your'job. MAYOR GALLAGHER: Attorney Gore, please, you do not have the floor. Councilman Vallone, I would really -- if you would like us to take a break until you cool off, we'll do it. 6 MR. VALLONE: No. ? MAYOR GALLAGHER: Okay. I would really 8 appreciate your allowing these gentlemen to proceed with 9 this hearing in an orderly fashion. 10 MR. VALLONE: Right. 11 MAYOR GALLAGHER: Counsel Lulich, do you 12 have an objection? 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LULICH: Yeah, I want -- ~4R. ~cDONOUGH: Let the record reflect I vehemently object to him having any objection at this time. I am responding on behalf of my client to a specific question asked me of Councilman Harris. There's no testimony taken of these officers yet and I want to respond to Councilman Harris' question and now I would tike to proceed without any objections from an attorney who has no standing in this particular proceeding. MAYOR GALLAGHER: ~r. McDonough. MR. McDONOUGH: Okay. Continue, AI'i right. In connection with MR. 'LULICH: Mr. Chairman, you addressed me and I asked to be heard in this case. MR. McDONOUGH: Excuse me. MAYOR GALLAGHER: Just a moment, Attorney 3 5 ~'~cDonough -- 6 7 8 9 MR. LULICH: MAYOR GALLAGHER: HR. McDONOUGH: Mr. Mayor. Let Mr. McDonough continue. Thank you, Mr. Mayor. In Connection with Officer Bennett, he 10 previously testified under oath at a deposition that 11 when there was a tape Played, a tape of Roy Raymond 12 talking about potential consolidation, that tape being 13 played at a departmental meeting, I asked Offficer Bennett 14 specifically, during that tape did Chief Nappi or any 15 other police administrator, stop the tape and state, 16 "These are Pat Flood people and Pat Flood supporters," 17 Officer Bennett denied that that was stated. 18 However, Lt. Puscher testified -- and I 19 will ask him to testify today -- that, yes, Chief Nappi 20 did state during the course of that tape, that Pat Flood 21 and Pat Flood supporters' name was used durinc that 22 particular departmental meeting. 23 Lt. Puscher will totally contradict Deputy -- 24 strike that -- Officer Bennett's testimony. 25 I will ask Chief Nappi whether or not he, at any time, directed Puscher, or Officer Smith, or Officer Brock .to sit on Flood's house. Chief Nappi denied that. However, Lt. Puscher admitted, in his deposition, that Lisa Brock did approach him and advise him that she was concerned about selective law enforcement on the night in question, whereupon both Officer Smith and Officer Brock were lambasted for not sitting at a citizen's house. Lt. Nappi -- strike that -- Chief Nappi 10 will also be asked whether or not the night before 11 Officer Smith's second deposition of October 18., 1985 12 he told Officer Smith, "If you testify that you don't 13 recall, that will not be perjury." 14 I asked Chief Nappi if that were true, under 15 oath, at the three and one half hour termination hearing. 16 Chief Nappi responded, "I do not recall." 17 We were referring to an incident which 18 occurred on October 17, 1985. 19 I asked Chief Nappi, "Did you tell Officer 20 Smith that, if you answer, "I don't recall," it will not 21 be perjury, to which Chief Nappi said, "I do not recall." 22 I asked, "Does that mean it did not happen?" to which he 23 answered, "i do not recall." 24 Councilmen and Mr. Mayor, you have those 25 excerpts in your possession and those specific instances 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 of testimony are relevant because they specifically go to specific answers relative to specific questions, posed to Officer. Smith in the second deposition and I submit to you, vehemently, that this testimony is relevant and material and that the testimony of the two deputies and the investigator from the Indian River County Sheriff's Department is relevant and material and that if this Council precludes this testimony you are abusing your discretion and precluding my client from having anything close to a fair hearing tonight. the case. I assure you'.that i-s I submit to you, respectfully, that you are representatives of the citizens of this City and you have an obligation to treat each citizen properly, including Officer Smith and that you have an obligation to answer these questions and respond to these questions because these citizens have the right to know. I submit to you, as I indicated in my opening argument, that Officer Smith has been railroaded. The facts are before each and everyone of you. I submit that these citizens are not MR. GORE: ignorant. this. I would object. i submit that you have a responsibility -- Your Honor, I would object .to--- We're getting into a closing opportunity to respond. Attorney, or whoever. case. argument-type of statement and I would like to have an MAYOR GALLAGHER: The objection is sustained. Really, the Council should refrain from asking any questions, or whatever. We have a prosecutor in this matter and if we will wait until the Council gets into deliberations and ask the questions of the City Let it be the spokesman for the 10 MAYOR GALLAGHER: Mr. 5~cDonough, would you 11 continue with your presentation. 12 MR. McDONOUGH: Mr. Mayor, just to reiterate 13 a motion that was made at a previous hearing, which of 14 course, I readopt and I shall reiterate at this time, 15 I've asked you, ~r. Mayor, to recuse yourself. 16 You, Mr. Mayor, I would submit respectfully, 17 are not acting objectively, at any time during the course 18 of these various disciplinary actions. 19 I would sugar, it that vcu a¢~visin~ tke 20 Council members to refrain fro~. ~osin~ questions, because 21 ~©u dcn't care what the responses are -- 22 ~R. ~©RE: I would object to that. 23 MAYOR GALLAGHER: That motion was already 24 made at a previous hearing and it was denied. 25 MR. McDONOUGH: I reiterate, ~r. ~ayor, that 1 I submit, that you should recuse yourself from what appea£s 2 to be blantant lack of objectivity as it relates to 3 preserving my client's rights. 4 MR. GORE: Perhaps the Counsel for defense 5 would care to poll the entire City Council to determine 6 their predisposition in this case and you can be assured ? that everyone who, perhaps, might be predisposed, would 8 either remove themselves in accordance with the objection, 9 or remain seated in accordance with his wishes. 10 I'm sure that that is not what's going to 11 be done by the city Council. 12 MAYOR GALLAGHER: Okay. Continue. 13 MR. McDONOUGH: I have a motion, Mr. Mayor. 14 That motion -- 15 MAYOR GALLAGHER: The motion was reiterated. 16 The objection is sustained. It has been denied. Get 17 down to -- 18 MR. McDONOUGH: I reiterate that, Mr. Mayor, 19 based on additional evidence of what I feel is total lack 20 of objectivity in connection with what has occurred to 21 this mOment. 22 Mr. Mayor, you have refused to entertain 23 testimony from a Deputy Reichert, which relates specificall 24 to the issue at hand, Officer Smith's truthfulnessan~ 25 I submit that that additional evidence, of your lack of 1 ~bjectivity further requires me to, in representing my~ 2 client, to move to have you recuse yourself. 3 MR. GORE: Once again, I would object on the 4 basis of being the prosecuting attorney. 5 Council members, if I may, and I know there 6 members in the audience who have positions on both sides ? of this matter. One position of the audience would love 6 to find that there was a witch hunt. The other part of 9 the audience would love to have the idea of a witch hunt 10 vindicated in the fact that no certain, quote, witch hunt 11 took place. 12 13 depositions. 14 What we have before us is a very simple, two In one deposition we are told that -- MR. McDONOUGH: 15 is making closing argument. Excuse me, Mr. Mayor, Mr. Gore I would object to that. He 17 18 19 sustained. 20 21 16 has rudely interrupted me more than once -- MR. GORE: _And the other -- MAYOR GALLAGHER: Both your objections are Will you continue. MR. McDONOUGH: Mr. Mayor, I would request 22 a ruling on my motion to recuse yourself, sir. 23 24 25 MAYOR GALLAGHER: I've already ruled on that. MR. McDONOUGH: I want -- MAYOR GALLAGHER: Let me make this clear now. 1 I heard your motion ~and I heard your statement that you 2 believe that,I should recuse myself from this case. 3 Ail right. The answer is, no, I will not do that. 4 The City Charter gives the Mayor specific 5 directives on how to present these matters to the City 6 Council. It' says the Mayor will make the recommendation ? for termination and will suspend the officer and make 8 that recommendation to the City Council. The Charter also @ says the Mayor sits as a member of the City Council and 10 it will take three ~.members -- in other words, two in 11 addition to the Mayor -- to uphold the recommendation 12 of the Mayor to terminate that officer. 13 This is the way it is in the books, in the 14 City of Sebastian and that's the way it is right now. 15 The answer is no. 16 Will you continue with your defense. 17 MR. McDONOUGH: I would request a formal 18 ruling from the Council on my motion, Mr. Mayor, for you 19 to recuse yourself, based upon what I believe is 20 evidence of your lack of objectivity. 21 MAYOR GALLAGHER: Well, the Council, the 22 Council is the judge of the qualifications, according to 23 the City Charter, of -- if it is the desire of the 24 majority of the Council for the Mayor to withdraw, I will .... 25 do so. 1 MR. 'VALLONE: Mr. Mayor, at this time, I 2 think it's appropriate that I will make a motion that, 3 because, of your attitude tonight and your reference to 4 Corporal Smith, I can't, in all just fashion, see how 5 you can sit here, up here, at this Council, not letting 6 this Council talk. You're doing all the talking. I don't ? like that. You're not objective. You're showing us, 8 you're showing us that your objectivity is out the 9 window. 10 I'm making a motion that you excuse yourself 11 lack of your objectivity in this matter. 12 MR. GORE: I object. As the prosecuting 13 attorney, it is required in the prosecution of my case, 14 that this entire Council sits. 15 MR. VALLONE: We don't have an entire Council. 16 We already have one that excused himself here. MAYOR GALLAGHER: Councilman Vallone, let's 17 18 set -- 19 MR VALLONE: I have a motion on the floor. 20 There's no discussion unless there's a second. MAYOR GALLAGHER: Did you make one? 21 22 MR. VALLONE: 23 to read it back? 24 CLERK: I certainly did. Do you want That you excuse yourself because'of 25 your lack of objectivity. 1 2 3 4 5 motion? MAYOR GALLAGHER: Is there a second to the Motion dies for lack of second. Would you proceed, Attorney McDonough. MR. McDONOUGH: 'At this time, Mr. Mayor, 6 to preserve the record, I have various witnesses whom ? i have subpoenaed, various testimony which I intend to 8 elicit and i would like to request each and every witness 9 take the stand, i am going to proffer questions and have 10 answers, so that I can preserve the record. This process 11 is called proffering testimony. 12 If Mr. Mayor and/or City Council wants to 13 preclude the introduction of what I consider to be highly 14 relevant and material testimony, I submit that I am 15 going to proffer testimony from each and every witness 1§ over that objection, to preserve the record. 17 At this time I would like to call back 18 Corporal Reichert. 19 ~AYOR GALLAGHER: Attorney Palmer, is this 20 in order? 21 ~R. PALMER: No, sir, it's not and 22 Mr. McDonough knows full well it ' s not. 23 24 25 MAYOR GALLAGHER: order, Mr. McDonough. MR. PALMER: Ail right. You're out of Mr. McDonough, you want to state 1 for the record, and you've already done, in the case of 2 these police.officers, and the other two police officers, 3 from the Sheriff's Department, they are here to present 4 opinions as to the general reputation of the witness. 5 The Chair has ruled that the 'general reputation of 6 Officer Smith in the community is immaterial. Those are ? your three witnesses, and you have ruled that they are 8 not going to testify. Now, what Mr. McDonough in this 9 formal procedure is to call another witness and you can 10 ask him what is that witness going to testify to and he 11 explains to you what the witness will testify to and, then, 12 you can rule whether that witness can testify. That's 13 what proffer is. 14 We're not in a court of law, here. I mean, 15 when you call to proffer evidence, you don't put the 16 witness on and listen to the questions before a body like 17 this. We're an administrative hearing. We already know 18 what the officer is going to testify to. The Chair has 19 already ruled, in this case, his ~eneral reputation for 20 truth and veracity in the community is immaterial. 21 ~R. McDONOUGH: Mr. Palmer, I disagree with 22 your opinion, I assure you, and consequently, Mr. Mayor, 23 and Council members, I intend to proffer testimony to ~4 preserve the record. I disagree with Attorney Palmer's 25 opinion as to what proferring testimony means. I'm a 1 trial lawyer. I 'know what it means, and I know the 2 procedure that has to be followed. Consequently, i'd 3 like to call Officer, Deputy Reichert, Deputy Garfield, 4 Investigator Lenz, Chief Nappi, Officer Bennett, § Lt. Puscher, Officer Catalone, and Frank DiVicenzo, and 8 Lisa Brock; I'm going to pose the questions and elicit ? testimony to proffer their testimony and preserve this 8 record. 9 You will not, Mr. Mayor, I respectfully 10 submit, preclude me from making a record so as to preclude 11 me from properly appealing these proceedings. 12 MAYOR GALLAGHER: The Chair has ruled that 13 if you want to depose those individuals at some future 14 date, you can do it. 15 The Chair has ruled, and you are out of 16 order, Attorney McDonough. Would you -- 17 MR. PALMER. We're not in a court of law, 18 here. This is an administrative hearing. The rules of 19 evidence in courts of law and criminal, civil matters 20 do not pertain to this body. If the Chair rules that 21 he's not going to allow witnesses to testify under an 22 alleged proffer of evidence, the Chair has all the 23 discretion to do that. 24 'MAYOR GALLAGHER: You've got to remember; 25 now, we're just talking about a specific charge of false 1 statements were made on either August 27 or October 18; 2 which 'one is immaterial. We're not questioning your 3 client's integrity or Character outside of those two 4 particular, particular cases, that were presented to the 5 Council. I'm sure that your witness has many nice things 6 to say about Officer Smith and I do, too. Don't forget ? he's worked under me while I was the Mayor for a year and 8 a half and I know he's done, done several things in the, 9 during this period of time that are commendable. 10 But in this particular case, You've got a 11 problem. See? 12 You can take your seat, Deputy. 13 MR. McDONOUGH: Mr. Mayor, let me just take 14 one moment here. Just one moment. Excuse us. 15 MAYOR GALLAGHER: If you have no objection, 16 take a five minute recess. 17 (Hearing in ~c.es.s.) 18 MAYOR GALLAGHER: Special Council meeting 19 pre-termination hearing will come back to order and let 20 the record show all Council members who were present and 21 left have returned. 22 Attorney McDonough, for the Defendant is 23 giving us his presentation and Attorney McDonough. 24 MR. McDONOUGH-: Mr. Mayor, I'd next.liketo 25 call Deputy Reichert to the stand. 1 MAYOR GALLAGHER: The Chair has already 2 ruled, based.on the objection and the nature of the 3 testimony as outlined and i would appreciate it if you 4 would honor that ruling. The Council's desire was not 5 to overrule the Chair and I would appreciate it if you 6 would honor it. 7 MR. McDONOUGH: Let me just proffer what 8 questions would be posed to Deputy Reichert. 9 It would be to the effect, when you are 10 deposed, Deputy Reichert, as an officer, do you answer 11 responsively to specific questions, when, being posed 12 by defense counsel. In the alternative, do you volunteer 13 information in response to questions at depositions. 14 That woul~ be the proffer question. 15 I anticipate the proffer answer would be, 16 I do not volunteer information. I respond only specificall 17 to specific questions when deposed by defense counsel. 18 That would be the proffer question and 19 answer for Deputy Reichert. 20 I would submit specifically relates to and 21 is relevant to these proceedings because, Mr. Mayor and 22 Council members, you are looking at two depositions. 23 The issue is whether or not those depositions contain 24 perjurous statements when comparing the two. I submit 25 that them is no direct contradictory statement and I've 1 submitted to you that one contains general questions and 2 one contains specific questions and, consequently, that 3 question posed to Deputy Reichert would, indeed, be 4 relevant. 5 MR. GORE: Mr. Mayor, if I may, again, I've 8 requested the Council limit itself and its investigation ? to the two depositions. The documents speak for themselves 8 MAYOR GALLAGHER: How would Deputy Reichert, 9 I'm sure that his testimony, you know, will be -- how 10 would Deputy Reichert answer his questions is not of We're talking .about Officer Ralph Smith, 11 concern here. 12 so -- 13 The Chair has ruled. If you want to 14 continue please do so. If not, just let us know. 15 MR. McDONOUGH: Well, it's my understanding, 16 Mr. Mayor,~ Ii'm' not being argumentative. It's not my 17 nature--that your previous ruling related to profferred 18 cuestions, whict~, a~arentl~' Tke ~ay©r and no one u~ 19 tkere particularly care to hear about. 20 I'm now raising an additional proffered 21 question and an additional proffered answer, which I 22 anticipate, which I believe, again, is highly relevant 23 because Deputy Reichert, Deputy Garfield, and Detectiv~~ 24 Lenz, as far as that goes, are all trained, police offi'~ers ~5 and, as far as that goes, so is everybody else, all the other officers up here, up here in Sebastian, which got subpoenaed and I will submit to you that it's, indeed, relevant and material how trained police officers respond to and answer questions from defense attorneys such as myself, in connection with a case. MR. GORE: We could go from the City of Pensacola and on down to the Key West -- ~R. McDONOUGH: Mr. Mayor I object to Mr. Gore -- 10 MAYOR GALLAGHER: The objection is 11 sustained. Will you continue with your presentation. 12 MR. McDONOUGH: Consequently, here, I submit 13 that these questions and proffered answers are, indeed, 14 relevant because it relates to the process of being 15 questioned during the course of depositions. 16 Mr. Gore has announced to everybody in the 17 wo~ld today, that's all he wants to 100k at is two 18 depositions. So, let's talk about the making and taking 19 and answering questions during a deposition. 20 It's highly relevant. 21 MR. PALMER: Mr. Mayor. 22 MAYOR GALLAGHER. Mr. Palmer. 23 MR. PALMER: The fact about how these three 24 police officers may have been.trained to answer questions ....... 25 at depositions is totally irrelevant to these proceedings. 14 15 16 17 18 19 2O 21 22 23 24 25 1 MAYOR GALLAGHER: I'm aware of that, 2 Attorney Palmer, and that is why i'm asking Attorney 3 McDonough to get off that point and continue. 4 MR. McDONOUGH: Well, I would like the record 5 to reflect that I object to Mr. Palmer's opinions., whatso- 6 ever. I'm addressing the Mayor and City Council and Mr. 7 Palmer, contrary to, perhaps, his wishes, is not a Council 8 member. I objeCt to his opinion as to my arguments on 9 relevancy. I'm posing that to the Mayor and the City 10 Council. 11 MAYOR GALLAGHER: Just for the record, 12 Attorney Palmer, if at any time you feel that your legal 13 advice is necessary for either myself or this Council to conduct this proceeding, please give it. You're authorized to do so. MR. PALMER: When I feel that Mr. McDonough realizes that you are not a judge or a lawyer and tries to take advantage of you as a lay person, at times, if I feel I've got to object. MAYOR GALLAGHER: sir. Well, I appreciate that, MR. McDONOUGH: Well, I assure you, Mr Maycr, I have no intention of taking advantage of you or anybody else, although I certainly appreciate Mr. Palmer's ............. concern in that regard. 9 10 11 12 13 14 15 16 1 Mr.'Mayor, I've pr0fferred what testimony 2 i would expect, from Deputy Reichert. 3 I would next like to call Deputy Garfield 4 at this time and I will submit what the profferred 5 questions and answers would be. 6 If I may call Deputy Garfield at this time. 7 MR. GORE: Once again, your HOnor, I raise 8 my objections. This is a continuing and ongoing objection that I request and I request a ruling from the Chair that this hearing be limited on an administrative basis to the statements made at deposition. 19 20 21 22 23 24 25 MAYOR GALLAGHER: the testimony? MR. McDONOUGH: What was the nature of The nature of the testimony from Deputy Garfield would be relative to his opinion as to Officer Smith's reputation for truthfulness and 17 veracity, as to his abilities, as a competent and 18 conscientious police officer and as to Deputy Garfield's training and conduct as it relates to being deposed by defense counsel during a course of a controversial criminal charge.. MAYOR GALLAGHER: ]4R. McDONOUGH: Objection is sustained. I next would like to call Detective Lenz from the indian River County -Sheriff's Department. Of course, Deputy Garfield and Deputy Reichert 1 are also from Indian River County Sheriff's Department. 2 .The proffered questions and testimony from 3 Detective Lenz will be as to his opinion as to Officer 4 Smith's reputation for truth and veracity, based on 5 experiences and personal knowledce, concerninu Officer 6 Smith. Detective Lenz will also testify as to the training 7 he has received and how he should conduct himself during 8 the course of our depositions, when he is being deposed 9 by defense counsel in a criminal case. 10 I anticipate he will answer as I have 11 indicated in the previous witnesses, both Deputy Garfield 12 and Deputy Reichert will answer that their opinion is 13 that Officer Smith has a good reputation for truth and 14 veracity and, also, that you don't volunteer information~ 15 you answer specific questions responsively. You do not 16 volunteer information. 17 That would be all their proffered answers. 18 MR. GORE: Mr. Mayor -- 19 MR. McDONOUGH: Excuse me, ~,~r. Gore. I have 20 that proffer to give to you, Mr. ~ayor and I object to 21 Mr. Gore interjecting his thoughts during the course of 22 these proceedings. 23 MR. GORE: Once, again, Mr. Mayor, I would 24 object on the.basis that these witnesses werenot present 25 at the depositions. We have the documents before this Council. 2 MAYOR GALLAGHER: Objection sustained. 3 MR. VALLONE: Mr. Mayor, I am going to make 4 a motion that --in fact, I made it again. I'm going to 5 do it again -- that I would like to see your objection 6 overruled and I would like to see that these witnesses ? to be heard by this Council and, also, I would like to 8 make a note, if I may, since I have the floor, Attorney 9 Gore, you asked, and I asked you a specific cuestion. 10 That's a matter of record, too, that you wanted this 11 information. I made a public statement, saying that, 12 do you want these other depositions and you said yes. 13 Now, you're turning around and saying, no, 14 you don't want to look at them. 15 I don't understand your intent and I don't 16 appreciate it. 17 MR. GORE: Would you like an explanation of 18 my intent? 19 ~IAYOR GALLAGHER: Gentlemen -- 2o MR. GORE: They are relevant. You requested 21 them, I reviewed them and, as the prosecutor, they are 22 relevant. 23 MR. VALLONE: 25 But you, initially, I asked MR. GORE: I don't want to argue about it. 14 15 16 17 18 19 20 21 22 23 24 25 you continue. MR. VALLONE: MAYOR GALLAGHER: no objection made by the Chair. MAYOR GALLAGHER: Councilman Vallone, will I have a motion on the floor. The motion is, there was Would you reword your 6 motion to overrule the Chair's decision on the objection, 7 of this witness to be heard. $ MR, VALLONE: I make a motion to overrule 9 the Chair on the objection, of this w~tness to be heard. 10 MAYOR GALLAGHER: Is there a second? 11 Motion dies for lack of second. 12 Attorney McDonough. 13 M.R. McDONOUGH: I next would like to call Lisa Brock to the stand. Her profferred testimony would be that she will reiterate testimony elicted from her during the course of her deposition of, on or about October four, 1985, relative to certain instances of alleged police abuse, consisting of whereupon she was directed by the police administration to take license tag numbers of people parked at Pat Flood's house; whereupon she was directed to get Pat FloOd and his supporters; whereupon she was directed to sit on Pat Flood's house; whereupon she was lambasted by Chief Nappi -.for.not sitting .on Pat Flood's.house We submit this testimony is relevant because 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 discretion. 5 ir supports testimony furnished by Officer Smith in his second deposition relative to specific questions pertaining to specific alleged instances of abuse of police It is relevant. My client is being charged with making false 6 7 statements about the City and/or City employees. He is 8 also being alleged as being unethical and immoral. 9 I, again, submit that testimony to support 10 his testimony in answer to specific questions is highly 11 relevant because it shows Officer Smith of being a very 12 high caliber and high moral person; ethical. 13 He was willing to exercise the temerity and 14 the audacity to be truthful in answering specific questicns 15 and that is highly relevant before this Council. In addition, Lisa Brock will testify that she underwent a polygraph test, conducted by Frank DiVicenzo and she will testify as to the specific questions posed to her and the specific answers, as per the operator's opinion. MR. GORE: Again, Mr. Chairman, I would object on the basis that Miss Rrock's interpretation of events surrounding actions by the former, or present cit~ administr'ation'i~' no't 'relevant at'-t'his"'-'hearing, The fact of the matter is that we have two depositions one is day; one is night. MAYOR GALLAGHER: The objection is sustained. MR. VALLONE: Mr. Mayor, I would like to make a motion to overrule your objection to having this witness heard by this Council. MAYOR GALLAGHER: motion? 8 Is there a second to the Motion dies for lack of second. MR. McDONOUGH: I would next ask Officer 10 Catalone of the Sebastian Police Department to testify. 11 I would ask him questions relative to specific instances 12 of alleged police abuse. At one time I asked him if he 13 had ever been asked to take down license tag numbers of 14 people sitting at a certain citizen's house; namely, 15 Pat Flood's house. He answered he didn't recall offhand 16 being advised that. 17 Specifically, he was unresponsive and 18 evasive in connection with answering that specific 19 question, i submit that unresponsive response is relevant to further support our position that Ralph 20 Smith is an ethical officer who, despite being concerned 21 about being terminated, if he was truthful in answering 22 23 specific questions, was specifically responsive and, in 24 fact, was ultimately terminated, or .is i-n..the process.. 25 MR. GORE: Again, Mr. Mayor, Mr. Smith has 9 10 11 12 13 one testimony in' one deposition and another deposition, another testimony in another deposition. We can have witnesses paraded before the Council indicating that, yes, indeed there was a certain attitude or, no, in fact, there was no attitude. We are not here to test the waters of past emotional and political feelings in this City. It is limited, again, to the depositions given 8 under oath. MAYOR GALLAGHER: MR. McDONOUGH: Objection sustained. Just for the record, }~r. Mayor I vehemently object to Mr. Gore trying to suggest that my client's position is to kring up past, quote, unquote, wounds. We're not concerned about personalities. I am 14 concerned about my client being effectively railroaded t5 and being terminated because he testified truthfully. 16 I don't care, nor does my client care, about 17 past conflicts in personalities. He is concerned about 18 presenting facts, circumstances attendant to and surrounding his depositions. MAYOR GALLAGHER: 19 20 21 22 23 '24 25 to the witness being heard. That is highly relevant. Objection is noted. MR. VALLONE: Mr. Mayor, I would like to make a motion at this time to object to your objecting to this witness to be heard. MAYOR 'GALLAGHER: The Chair di.-d not-.object ............. The Chair ruled on the 1 objection by the prosecuting attorney. 2 -MR. VALLONE: i object to that ruling. 3 MAYOR GALLAGHER: Your objection is noted. 4 Attorney McDonough. § MR. McDONOUGH: I would next like to call $ Frank DiVicenzo, polygraph operator, to the stand. The ? proffered questions will be those contained in his report 8 previously furnished each Council member. 9 I will ask him whether the information that 10 Lisa Brock gave in her deposition October 4 was true and 11 correct to the best of her knowledge, to which she 12 answered yes. 13 14 in her deposition of that date that were not factual, to 15 which her answer was no. 16 i will ask him whether she was given 17 instructions by Chief Nappi to maintain surveillance on 18 the home of Pat Flood, to which he answered yes. 19 i will ask him if she was asked the question, 20 "Do you know for sure if Chief Nappi ever gave such 21 instructions to other officers of the department, to 22 which he answered yes. 23 I proffer that those questions will be asked 24 of Frank DiVicenZO' as 'a'"~olygraph operat'or '~ith twelVe 25 years experience and that his report relative'to testing i will ask him whether she made any statement 1 Lisa Brock relates to this particular case and is 2 relative and.material for the reasons I have expressed, 3 and readopt those reasons. 4 MR. GORE: Once again, Mr. Mayor, Lisa Brock's 5 credibility is not at issue in this hearing. Again, she 6 may state that certain actions took place. However, we 7 do have the depositions, both of which indicate a hundred 8 and eighty degrees in an attitude by the city administratiol 9 MAYOR GALLAGHER: Although there's in 10 Exhibit A, the deposition from the State of Florida 11 versus Ceth Patrick Flood, Jr., taken of Ralph Smith on 12 August 27, 1985, there were questions raised by, in that 13 deposition by Mr. Smith as to Miss Brock's credibility 14 but that!s not a question of this hearing today. 15 The objection is sustained. 16 MR. McDONOUGH: I would next like to call 17 Officer Bennett of the Sebastian Police Department as my 18 next witness. The proffered question would be at a 19 previous deposition, when I asked Officer Bennett, at 20 that session, whereupon a tape of Roy Raymond of the 21 indian River County Sheriff's Department was played, 22 pertaining to the topic of consolidation, whether or not ~3 during playing that tape Chief Nappi stopped the tape 24 and stated,-~"TheS~are pat FloO~d supporters." I a~'ked~ 25 Officer Bennett if Chief Nappi or any other police officer 1 or administrator said that. Officer Bennett stated, no. 2 I will ask Officer Bennett that question again because it 3 directly contradicts with Lt. Puscher's deposition, 4 whereupon he specifically testified that Chief Nappi did 5 state that these are Pat Flood supporters and~ people and 6 Lt. Puscher did state that Chief Nappi was upset when he 7 stated that, at that particular meeting~ 8 I further will ask Officer Puscher if he 9 at any time stated that he in the past he stated to other 10 officers that he was going to go out and arrest Pat 11 Flood, to which he answered no. 12 Lisa Brock stated that he had done that in 13 the past. 14 We submit that that is relevant for the 15 reasons we allege and readopt those relevancy' arguments. 16 MR. GORE: Same objection. 17 Your Honor, this is, again, whether a 18 certain action took place is not at issue here. The 19 fact of the matter is that a statement was made that one 20 action took place; another statement ~ss ~adc tt~at no 21 action took place. 22 The depositions, aoain, reflect conflicting 23 testinony under oath. 24 ~.~R. GALLAGH~R: Objection sustained. -- 25 ~R. McDONOUGH: ~r. ~ayor, I would object to Attorney Gore making conclusory statements as to, that there are contradictory statements. That's a question of fact for you, Mr. Mayor, and you're going to rule on that, contrary to any objections, and other Council members. 6 It's not Attorney Gore's opinion~ His ? opinion is not important. He is not a fact finder and 8 I object to his continuing comments that they are 9 directly contradictory. 10 MAYOR GALLAGHER: Objection sustained. 11 In the future, just voice your objection 12 on the grounds of relevancy Or irrelevancy. 13 MR. McDONOUGH: I next would like to call 14 Lt. Puscher of the Sebastian Police Department. The 15 questions posed to him will include and not be limited 16 to, were you ever advised by any police administrator, 17 Chief Nappi, or otherwise, to get Flood, to which he 18 answered, "I don't think so." 19 I would pose the question to Lt. Puscher 20 whether or not Chief Rappi, during that tape recording 21 of Roy Raymond, did stop the tape and say, "These are 22 Pat Flood people, Pat Flood supporters," to which 23 Lt. Puscher will admit to, as he did in his prior -24 - deposition, yes, Chief Nappi.._did ~ay. _that.; .that is 25 contradictory to other officers' statements. Lt.'Puscher will also be asked whether or not Lisa Brock did approaCh him and advise him that she was lambasted by Chief'Nappi for not sitting on Flood's house. He will testify that she was complaining of what she believed to'be selective law enforcement activity. He will testify that he recalled her stating, or using that phrase. 6 7 8 I Will next ask Lt. Puscher whether or not 9 he was lambasted and confronted by Chief Nappi for not 10 surveilling a citizen's house in this community, to "I do not recall" 11 which he will answer, . 12 I will ask does that mean it did not 13 happen. He will answer, no, that means I do not recall. 14 That would be the proffered questions and 15 16 17 18 19 answers. relevancy. MR. GORE: I would object on the basis of MAYOR GALLAGHER: Objection sustained. MR. VALLONE: Mr. Mayor, I would like to 20 21 22 23 24 25 make a motion at this time to object to your objection to not hearing this witness, relative to this case. MAYOR GALLAGHER: been no objection' by the Chair. The motion -- There has The Chair ruled on an objection by the prosecuting attorney. MR. VALLONE: Well,I go ahead and object to 1 that. 2 3 .MAYOR GALLAGHER: Your objection is noted. If you want to go ahead and make a motion 9 10 11 to call Chief Nappi to the stand. 12 would be as follows: to overrule the Chair. MR. VALLONE: That was my intent. I would like to make a motion to overrule the Chair. MAYOR GALLAGHER: We have a motion to overrule the Chair. Is there a second? Motion dies for lack of second. MR. McDONOUGH. Mr. Mayor, I would next like The proffered questions 13 First, did you, at any time, state that 14 these are Pat Flood people or supporters during the 15 playing of the tape, during which he will deny -- 16 MR. GORE: I object, your Honor. 17 MR. McDONOUGH: Excuse me -- 18 MR. GORE: I don't want any answers 19 insinuating that the witness -- the questions I will go 20 ahead with. I want no answers on the record. 21 MAYOR GALLAGHER: Objection sustained. You 22 are getting into, what you are doing is giving answers 23 to questions, as to what he is going to testify for, you 24 got away with .it up to this.point because AttorRey-Gore ........... 25 didn'tobject but please discontinue that. Attorney Gore 1 2 3 4 i made Attorney Gore discontinue his lengthy opinions as well. MR. McDONOUGH: opinions to you, Mr. Mayor. Mr. Mayor, I'm not submitting I'm submitting you proferred 5 questions and answers, which I need to do to make the § record. That~,s why I'm doing it. ? My next question will be whether or not 8 Chief Nappi did approach officer Smith the night before 9 his October 18 deposition and told Officer Smith, "If you 10 state that you do not recall, that is not perjury." 11 To which Chief Nappi will answer ~- 12 MR GORE: I object. 13 MAYOR GALLAGHER: Mr. McDonough, you're 14 doing it again. I just sustained the objection. You're 15 doing it again. Just give the questions, not the answers. 16 MR. McDONOUGH: Again, Mr. Mayor, I'm 17 respectfully attempting to make a record for appeal. 18 MR. GORE: The Record for appeal is duly 19 noted, your Honor, notwithstanding the fact that answers 20 21 22 23 24 25 are not allowed to be given over objections, of the prosecutino attorney. MAYOR GALLAGHER: MR. McDONOUGH: Okay. Mr. ~ayor, I would ask that Mr. Gore cease from interrupting and s~'rik'e" ~'ny statements that he makes, such as that. 1 MAYOR GALLAGHER: Attorney Gore has a 2 perfect right to object if he feels the need to do so. 3 MR. McDONOUGH: I will next ask Chief Nappi 4 if he had occasion to tell Officer Smith to talk to 5 Lisa Brock before her deposition to insure that she does 6 not provide candid answers to specific questions relative 7 to specific alleged instances of police abuse as more 8 specifically laid out in her deposition of October 4, 1985. 9 MR. GORE: Ongoing objection, Mr. Mayor. 10 Again, irrelevant and immaterial for the charges pressed 11 12 13 14 15 against the officer. MAYOR GALLAGHER: MR. McDONOUGH: The objection is sustained. May I just have one moment? I next call Mr. Smith, Officer Smith. MAYOR GALLAGHER: Riss Reid, would you swear 16 in Officer Smith, please? 17 CLERK: I don't have the Bible with me. 18 MAYOR GALLAGHER: Let's wing it. 19 (Whereupon, having been sworn by ~ayor Gallagher, 20 RALPH E. SMITH, 21 was examined and testified under his oath as follows: 22 DIRECT EXAMINATION 23 BY MR. McDONOUGH: 24 Q State your full name, Officer ~mith. 25 A Ralph Edward Smith. 1 Q 2 Sebastian? And you currently reside in the city of · A Yes, I do. Q And how long have you been employed as an officer here? 6 A 10 A 11 Q 12 A 13 Q 14 15 Almost three years. And, up until recently, what was your rank? Corporal. And when were you named corporal? It was, I believe it was July the 29th. Of this -- Of this year. During this period, what were your responsibilities as a corporal? A It was road, the road division; supervising, 16 you know, under the lieutenant. 17 Q Okay. Were you also given the responsibility 18 of being, training officers? 19 A Yes, I was. 20 Q And during that responsibility, did you have 21 an occasion to train various officers of the Sebastian 22 Police Department? 23 A 24 Q Yes, I did. And who 'gave"you that reS~°nsibility'~ 25 A Chief Nappi. 1 Q Were you.also given the responsibility to 2 revise the standard operating procedures book? 3 'A Yes, I was. 4 Q What is the name of the book? 5 A Okay. It's the'SSDP, it's the FTO Manual. 6 It's the Field Training Officer's Manual. Basically lays ? out the guidelines on, you know, to train officers so 8 everyone can be trained basically the same way, under @ the same criteria. 10 Q All right. 11 Is it a document which the Department was 12 to, or was, in fact, going to follow? 13 A As far as I know, that was the purpose. 14 They were going to follow it as soon as it was revised. 15 Q And you were requested to revise that by 16 Chief Nappi? 17 A Yes, sir. 18 Q And did you, indeed, revise the document? 19 A Yes, I did. 20 Q Within the time frame we're talking about? 21 A Yes, sir. 22 Q Now, Officer Smith, you recall your 23 deposition being taken on August 27, 1985, by myself; '24 do you not? 25 A Yes, I do. 1 Q All'right. 2 .And at that time, was the case involving 3 the State of Florida versus C. Patrick Flood? 4 A Yes, it was. 5 Q All right. 6 During that deposition, Officer Smith, I 7 will ask you, did you at any time lie and give me 8 erroneous answers to questions? 9 A No, sir, I did not. 10 Q Is it fair to say you were generally 11 responsive to questions but not, did not volunteer 12 specific answers; is that a fair statement? 13 A That's fair. 14 Q Why is that? 15 A Well, because I've been trained, like, to 16 be brought out. You know, you don't go in there and 17 volunteer any information; that you're supposed to 18 answer specific questions and if you don't understand what 19 the attorney is askinc for, you make him Gualify or you 20 don't answer.it. 21 Q Were you trained as a police officer that, 22 again, you don't volunteer information to a defense 23 attorney who is deposing you in a criminal case? 24 A Yes,.sir. That'.s true. 25 Q Is it fair to say that you did not volunteer information in response to general questions posed by myself in this initial deposition? -A That's true. Q And is it also true, again, that you did not lie under oath during that particular deposition? A No, sir, I did not. Q Officer Smith, do you recall having your deposition taken a second time by myself, in the same case, on or about October 18, 19857 A Q Yes, sir. During the course of that deposition, did 10 11 12 I pose specific questions to you, sir? 13 A Yes, sir, you did. 14 Q And did you respond specifically and 15 responsively to those questions, sir? 16 A Yes, I did. 17 Q And did you do so truthfully? 18 A Yes, sir. 19 Q During the course of the initial deposition-- 20 let's hop back to August ~- durino the course of those "What are you aetting atT Or 21 questions, did you ask me, ~ . 22 that's not quite right"? 23 A Yes, I did. 24 Q And was that pursuant to your training, in 25 terms of not volunteering; answering general questions? 1 A Yes, sir. 2 Q .As a trained officer, do you have an opinion 3 that, during the cours~ of the second deposition, more 4 specific questions were posed, whereupon you had an 5 obligation to provide specific answers? 6 A Yes, sir. 7 Q Were you at any time advised as to what to 8 say or threatened, or otherwise, as to the second 9 deposition? 10 A Okay. Like you brought up, I was talking 11 to Chief Nappi down at Mother's Kitchen and this was the 12 night that I received the letter from Lt. Puscher and 13 Lt. Emrick suspending me the first time. 14 I went in to talk to Nappi and we went 15 outside and the conversation got around to -- I don't 16 know how it got around to the Flood deposition but it 17 got to that and he, Nappi said that you know, as long, 18 there's nothing wrong with you sayina that you don't 19 remember. He said if there was anything wrong with that there would be a lot of people in jail. 20 21 Also -- 22 Q Did Chief Nappi tell you that if you say 23 that you don't remember that it's not perjury? 24 A Yes, sir, he did. 25 Also, before the second deposition, Chief 1 Kappi lived, he Shared a house with me. 2 Q .What? I'm sorry? 3 A I say Chief Nappi shared a house with me, you know, before, you know, I was suspended this first 5 time. 6 Q 7 A 8 months. How long was that? I don't know. I would say approximately six don't know. 9 10 11 12 13 14 15 Q So, you were roommates for six months? Yes, we were. All right. Go ahead. We were setting at the house and the discussion came to the Flood depositions, and everything, and ]%e told me that he was going to ~ait until the day before the trial, he was going to drop the charges on 16 Flood and he was going to receive copies of all the 17 depositions and whoever went against him, he was going 18 to fire them. 19 Q Who was he referring to, whoever went 20 a~ainst him? 21 A He would be referring -- my interpretation, 22 he would be referring to anyone that -- 23 MR. GORE: Mr. Mayor -- 24 MR. McDONOUGH: EXcuse me. 25 ~R. GORE: -- at this point -- ~R. iMcDONOUGH: Excuse me. ~r. Mayor. Mr. Gore is interrupting my client's response -- MR. GORE:· I would like to raise an objection at this time that Mr. McDonough -- MR. McDONOUGH: when questions are -- MR. GORE: Mr. Gore well knows that When questions are proffered to 8 a witness in a court of law -- which this is not. The 9 rules are substantially more relaxed -- that the opposing 10 attorney does have the opportunity to raise an objection. 11 I'm not trying to do this in order to confuse Mr. McDonough's train of thought. I'm just 12 13 stating that the question as to what Mr. Nappi was saying 14 to him, I don't see the relevance. The history, they were housemates, or whatever, I fail to see any relevance 15 in this, as to the charge that is before the Court, and before this Council. 17 18 MR. McDONOUGH: Mr. Mayor, first of all 19 b~r. Gore objected in the middle of my client's answering 20 a query which was posed several sentences before that. 21 Consequently, his objeCtion is untimely and my client 22 should be entitled to fully answer the auestion posed. 23 It's improper for him to object, he waited 24 t0o'long t° object; Consequently~ 25 Now, my client may not be saying what he wants to hear but my client is answering the question; he should be allowed to do so. MR. GORE: Fine. In this case, I move to strike the answer from the official record. MR. McDONOUGH: Furthermore, I would submit 6 that if he had been threatened, that is relevant because ? it' relates to why and/or circumstances surrounding his 8 testimOny. 9 And I submit that he should be allowed to 10 answer this question. 11 MR. GORE: Mr. McDonough, I'm just trying 12 to make an Objection for the re60rd. 13 MR. McDONOUGH: Excuse me, Mr. Gore. I'm 14 not responding to you. I'm responding to the Mayor. 15 MAYOR GALLAGHER: I'm sure that what you are 16 saying is -- 17 Attorney Palmer, is that the case that, has 18 Mr. Gore waived the objection? 19 MR. PALMER: No, sir. No, sir. The question 20 is, the proper objection is the answer is unresponsive 21 to the question. There was no question elicited. Any 22 testimony about whether the Chief and Ralph Smith were 23 roommates, or anyone was threatened, Mr. Smith states 24 that he does not volunteer information.' Well, he'is 25 volunteering fifty sentences since he started. 1 MAYOR GALLAGHER: We realize that Mr. Gore's 2 objection is'sustained. 3 Please, you know, direct objections to 4 some reason why these things are the way they are. 5 If you're going to defend your client, we 6 are interested in why there is such a conflict in these ? depositions. 8 MR. McDONOUGH: And I indicated to you, 9 Mr. Mayor, that I'm trying to bring out what I consider 10 to be relevant and material testimony. 11 Mr. Palmer, any more comments before I ask 12 the next question? 13 MR. PALMER: No, sir. I just wish the 14 witness would be responsive to the questions and quit 15 volunteering information. You made the point that this 16 witness was trained not to volunteer information when 17 ke is asked questions. 18 MAYOR GALLAGHER: Either he was trained to 19 volunteer or trained not to volunteer, which really is 20 inconsequential to what we we're here today for. 21 Ask another question, Attorney ~cDonoug~. 22 DIRECT EXAMINATION (Continued) 23 BY MR. McDONOUGH: 24 Q officer~ S~ith, did you interpret What was 25 said to you by Chief Nappi as a threat? A Yes, I-did. '.And tell us what, why, please. Would you repeat the question? Tell us why you interpreted what he said 5 perhaps you may want to tell'us what he said -- as a threat. A Okay. Like I stated before, he said that 8 he was going to drop the charges and anybody that went 9 against him, you know, was going to be fired and my 10 interpretation of that would be anybody that said that 11 there was any type of "Get Flood" campaign, or anything 12 like that. 13 MR. GORE: I object. 14 MAYOR GALLAGHER: I agree. Let Mr. Gore -- 15 MR. GORE: I have an objection. i6 MAYOR GALLAGHER: Let me just -- the 17 objection is sustained. That has nothing to do with 18 materiality. 19 These are obviously matters, in order for 20 you to ask questions, you can talk to Mr. Smith and if 21 it's part of your defense, I assume you can do so. 22 Now, we have got a procedure'that's 23 outlined about how complaints are made by police officers 24 and 'to have -- you 'know; ~e'r~ not here-to.-.-a.ttac.k -anyone, 25 especially not our Chief of Police and if it's your 1 intention to, rather than defend your client, to dump on 2 our Chief of.Police, or any other officer in this city, 3 it's not appreciated. 4 MR. McDONOUGH: I appreciate that that's not 5 appreciated, Mr. Mayor. I assure you no one at this 6 Counsel tabl~ intends to dump on the Police Chief, using ? your terminology. $ What we're attempting to do is competently 9 represent our client and defend him and we feel that the 10 circumstances surrounding his depositions, statements 11 made to Officer Smith prior to that deposition, and all 12 the attendant facts and circumstances relating to same 13 are, indeed, relevant. 14 I assure you, that is our concern, and our 15 sole concern and the testimony we're attemptinc to elicit 16 is based on my opinion relevant and material to our 17 defense, as proper. 18 Now, we may have a difference cf opinion 1@ in that regard but I assure you it's not our intent to 20 dump on anyone. It is our intent to defend my client 21 by eliciting material and relevant testimony. 22 MAYOR GALLAGHER: i appreciate that but 23 the fact is we're not here to determine, or as to what 24 surrounding'events took-.ptaceto make-Mr. Smith.say., on 25 August 27 what he said on August 27 and October 18. 1 We're here today to .determine.if, in fact, August 27 2 and October 18 conflict. Not why they conflict; just if 3 they conflict. 4 I'm sure Office Smith has good reasons for § saying what he did on August 27 and I'm sure he had good 8 reasons to say what he did on October 18. We're not ? interested in that right now. 8 What we want to know right now is if, in 9 fact, they conflict. 10 MR. McDONOUGH: Mr. Mayor, I would like to 11 assert, for the record, that circumstances surrounding 12 why he said what he said is, indeed, relevant and 13 it's my understanding that "your ruling is that it 14 is not? 15 MAYOR GALLAGHER: No, I don't believe that 16 it is relevant. 17 MR. VALLONE: Mr. Mayor, at this time I 18 would like to register a complaint, again. 19 It's I, I, I. 20 It's the Council and if I want to hear the truth. So, don't talk for me and I want that on the 21 22 record. You don ' t talk for Councilman Vallone, Mayor 23 Gallagher. I want to hear whatever this man says and 24 I waht-'t'o hear-it from every one of't'hoSe wit'nesses"'th'a-t ....... 25 were deposed by Attorney McDonough. NO%', and I also want 1 that on the record.. 2 -I feel .at this time this hearing is being 3 derailed and this community is seeing that this man is 4 not getting a fair shake and I object to that very 5 strongly and I say to my 'other fellow Councilmen that I 6 am shocked and dismayed with their attitude by staying ? silent and letting you dominate them. You're not going 8 to dominate me. 9 I want this man heard and I want to hear 10 everything he has to say so next time you say "we" or "I" 11 you don't talk for me. 12 MAYOR GALLAGHER: Let the record show that 13 when I speak I have no association whatsoever with 14 Councilman Vallone. 15 Attorney Palmer, please let me know if that 16 ruling was correct. 17 MR. VALLONE: And I with you, Gallagher. 18 MAYOR GALLAGHER: Am I correct, or am I 19 wrong? If I'm wrong, ~d appreciate it if you tell me. 20 But if I'm correct in my determination that what 21 surrounding, or why he gave these depositions, and why 22 one says this and one says that -- what is the relevance? 23 MR. PALMER: First, we know when you're 24 saying'~"~i'wek~6~'~°~'re spe~kin~-'~s--the Ch~ir'is ............ 25 speaking. A Judge saysthe Court. But you're not 17 18 19 20 21 22 23 24 25 1 2 3 might cure the objection. experienced in these matters and if Mr. Vallone is objecting, if you would like to say the Chair rules, that 4 MAYOR GALLAGHER: What I'm asking you is, 5 is the decision that, the ruling that it is irrelevant, 6 is that a proper decision? ? MR. PALMER: They're trying to say that he 8 had a basis for testifying the way he did and in the 9 second deposition and that may be, but if, in fact, the 10 depositions are contradictory, on their face -- 11 MR. ¥..cDON OUGH: Objection. 12 MR. PALMER: Now, I -- 13 MR. McDONOUGH: I object. Attorney Palmer 14 now is making conclusions of fact for all Council members. He, too, is evidence of an interesting lack of objectivity 15 and I strongly object to him drawing these conclusions. 16 He is the City Attorney. MR. PALMER: Mr. McDonough, I didn't draw any conclusions. I said if, in fact, the depositions are contradictory, it's immaterial why he said one thing one day and one thing another. If, in fact, they are contradictory, I think the Chair's ruling is correct in that regard. MAYOR GALLAGHER'~ My'probl~m,-"---Attorn-ey ...................... ~cDonough, is in your openin~ statement you had indicated 18 19 2O 21 22 23 24 25 1 that in your defenses that these are not specific 2 statements and therefore they're not conflicting. 3 However, now you're attempting to show that 4 you know, regardless whether they're conflicting, or not 5 that there's reasons for them and this is the problem. 6 'Now, if your defense 'is that they are 7 conflicting and there's reasons for that, fine. But you 8 did state that in your opening arguments. 9 MR. McDONOUGH: Mr. Gallagher, i am not 10 asleep, sir. I did not suggest to you, or. anyone else 11 nor am i going to concede there are conflicting 12 statements and where you got that I would respectfully 13 submit I don't know. 14 My defense is that there are not direct 15 conflicting and inconsistent statements in those 16 depositions. My position, throughout, is that they are 17 not and there's been no perjury, for the reason I've announced but I've also maintained that the facts surroundinc the taking of these depositions are, indeed, relevant and those two positions are not inconsistent. questioning. BY 'MR. McDONOUGH: ~AYOR GALLAGHER: So, continue with your DIRECT EXAMINATION (Continued) Again, officer Smith, did you answer 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 specific questions responsively, in connection with the second deposition? .A Yes, I did. Q And was it your opinion that the initial deposition of August 27 consisted of relatively general questions posed by myself as defense counsel? A Yes, I did. Q And in that regard did you not volunteer specific answers accordingly? A I answered general'ly because they were general questions and I didn't volunteer anything. Q Q sir? A Q A BY ~<~. GORE: Q depositions? A And were you trained to do that? That's what I was trained to do. Officer Smith, have you perjured yourself, During these investigations. No, I have not. Thank you. MR. McDONOUGH: I have nothing further. CROSS 5XA~.i!?~ATION ~.'Cere you represented by Counsel at these In the first one -- no, I was not represented 102 The first one, Mr. Palmer was there. I don't know what he was doing-there. I didn't ask him to be there. At the second one, also, again, I was not represented by a -- Dan Vaughn was there from the State Attorney's office and, you know, what reason he was there, I don't k~ow. 7 8 9 without a Counsel. 10 Q Was any administrative officer from the City 11 of Sebastian there at your first deposition, other than 12 Tom Palmer, City Attorney? 13 A No, there was not. Was any officer there at your second 14 Q 15 deposition? Usually, when we go to these depositions 16 A No, not that I can remember. 17 Q October 18. 18 Now, your attorney said you had some coaching 19 in answering depositions, as a police officer, that 20 you're not supposed to be so specific; is that right? 21 Did you state that? 22 A Are you talking about during my training, or-- 23 Q During your traininc, or whatever. Something 24 came out that you're not supposed to' volunteer informa%icn7 25 something unless you are specifically asked at deposition. 1 A This is-true. 2 Q -Okay. Ail right. 3 At the first deposition of August 27, 1985, 4 the question was, "Has Chief Nappi ever told you to get 5 Flood; or any of his friends or relatives?" You said, "No more so than you tell anyone to get any. low life crook." You didn't stop there. You kept on going. It's like anybody that's doing Just trying to throw the shaft No more so than that. If Joe 12 Blow is out there selling dope, you know, you say, go 6 7 8 9 "YOU know. 10 things wrong out the=e. 11 at anybody. You know. 13 get them. You know. 14 Chief Nappi's opinion. This is my opinion. This ain't Flood has got away with too much. 15 we tried to get him through the grand jury and they just 16 17 18 19 20 21 22 23 24 25 smack him on the hand. Well, this time we went. We thoUght we had enough probable cause because he didn't arrest him on the spot. didn't jerk him around. We didn't harrass him. We Nobody humiliated him in front of everybody. We went the nice, easy way to show probable cause. We thought we had probable cause and we got the warrant, capias, whatever. It was just a matter of --" .-At that point you .ended and...th.e..._.tes.timon~ .............. went on, approximately about fifteen minutes. seems to me that you did volunteer certain information, .unsolicited, in that statement. Is that correct? You might say that. In the deposition of October 18 -- Let me continue on the earlier deposition. On page 18. You can preview, give your counsel time to 9 get the deposition, if that will help refresh your 10 memory. 11 12 Mr. McDonough? MR. McDONOUGH: 13 he needs it, I'll give it to him. 15 16 BY MR. GORE: 17 Q Gore, just proceed. Go ahead. MR. GORE: Thank you. CROSS EXAMINATION (Continued) If You stated that, with regard to Chief Nappi, 18 that, "No, he's never told us to go out and trump up lg and harrass and jerk him around or anything like that." 20 Relating to the former Mayor. 21 "What has he told you?" "Build good cases 22 on anybody, any people out there. It don't matter who 23 it is." 24 Then, in your seco'nd deposition, on Pag'~ '3-'; ......... 25 actually, the first page, you stated, first of all, the .,LU~ the question was, "First of all, I need to know whether or not you were ever directed by Chief Nappi, Lt. Puscher, or anybody else in the'City administration to effectively sit on Pat Flood's house and take note of all people that were located at his house and, basically, follow them after they left his house, sometime around March 7 of '847" 8 g Answer, "Yes." Now, Mr. Smith, your testimony seems total 10 diversion and contradictory. stated -- On one, in your earlier deposition, you 11 12 13 MR. McDONOUGH: I object. Mr. Gore is 14 making conclusory statements and if he wants Mr.Smith to 15 respond to, obviously, what is not inconsistent 16 statements, which goes specifically to the point I made 17 earlier, about interpreting what harrass and jerking 18 somebody around, you can't compare that to the fact 19 that he was directed to sit on someone's house and take 20 tag numbers. 21 If this Council wants to interpret jerking 22 someone around, or harrassing someone as being sitting 23 on somebody' s house, that's fine. That's semantical. 24 But that is not a specific inconsi~tent--s~-atement-'~ 25 MAYOR GALLAGHER: I'd be very interested in definitions of all the responses. Objection sustained. 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 1 2 3 whatever. 4 5 6 It.would be more specific as to the questions and not draw conclusions as to any contradictions, or MR. GORE: No. In fact, I have no further questions and I go ahead and rest the City's case and based on the depositions already submitted to Council. MR. McDONOUGH. I have nothing further. Come on, Ralph, sit down here. MAYOR GALLAGHER: Do you have anyone else to call? proffered testimony, here. here, Mr. Mayor, and see. MR. MCDONOUGH: I can't think of any other Maybe I'll look behind me, I have no additional witnesses, Mr. Mayor, but I would again renew my motion to allow me to elicit testimony from each and every witness, as I have proffered, because precluding me to do so is violating my client's due process rights. MAYOR GALLAGHER: The record shows the Ckair has already ruled. MR. McDONOUGH: And, Mr. Mayor, I also renew my objection and request that you recuse yourself from voting on this particular matter. · MAYOR GALLAGHER: The record will also show 25 that's already ruled on, as well. 1 MR.'McDONOUGH: Mr. Mayor, I would also 2 renew my motion for directed verdict. I believe I used 3 that term earlier, namely that in light of Mr. Gore's 4 now not proceeding any further with this case, that I § feel that the City has not successfully carried its 6 burden. I readopt each and every argument I previously ? made and I again ask that this matter be dismissed for 8 lack of evidence and that my client be reinstated to 9 his former employment. 10 MAYOR GALLAGHER: 11 MR. McDONOUGH: Is that it? For now, Mr. Mayor. 12 13 you don't. MAYOR GALLAGHER: ~R. ~cDONOUGH: Well, you either rest or At this point in time,we rest. 14 15 MAYOR GALLAGHER: Ail right. 16 Council, if there is no objection, we'll 17 close the hearing. 18 Hearing is closed. 19 Okay. 20 At this time the Council will enter its 21 deliberations. I ask Council to take into account the 22 format of this particular hearing, in fact, that the 23 City was represented by Attorney Gore and that Officer 24 Smith has been represent'e-d'by'"Attorney MtDo'nough'-and .......................... 25 that, those individuals are the ones with the 108 1 responsibility t© supply the evidence to the Council. 2 And both sets, either pro or con or whatever. I'd ask 3 the Council to base their judgment on the evidence that 4 was presented by Attorney Gore and by Attorney McDonough 5 in defense of his client and make their deliberations on 8 on that evidence and not to reopen a hearing at the ? Council level and it's not the Council's place to be 8 calling witness or to reopen these, either the defense 9 or the prosecution in this case. 10 At this time, we'll move on to the agenda 1t at the point where the City Council will make a decision 12 in the City, regarding the status of Officer Ralph Smith. 13 Councilman Szeluga. 14 MR. SZELUGA: Mr. Mayor, due to the fact 15 that nature sometimes is not controlled to some degree, 16 and, therefore I have a nature call and therefore I 17 request a five minutes recess. 18 MAYOR GALLAGHER: If there's no -- I will 19 remind Council -- okay? -- at tkis point in the hearina 20 it's important that the Council, you know, everybody ; refrain from any discussion~ of this matter with members 22 of the public or anyone else, for that matter. The 23 defense has rested and the prosecution has rested. 24 MR. VALLONE: Mr. Mayor, tthinkthis-is~- 25 highly out of place. You should not have a five minute 2 3 Okay. recess. .MAYOR GALLAGHER: We have an objection. · There won't be a recess, unless there's a motion and a three vote. MR. SZELUGA: excused. excused. Mr. Mayor, I wish to be MAYOR GALLAGHER: Councilman Szeluga is 9 We have not entered the deliberation portion 10 of the meeting and if it's Council's will, we'll continue 11 with the deliberations with only three members, we do so. 12 To save us all a problem I need a drink of 13 water so I will get up and we will have to recess because 14 there's five of us. 15 MR. McDONOUGH: Mr. Mayor, I object at this 16 time and request that the Council deliberate. 17 MR. VALLONE: well, obviously, there's only 18 two of. us up here, Mr. McDonough, and it seems that, at l@ this time, I guess I'm off the record now but whatever -- 20 It seems that this Council is not lookina out for justice. 21 They're playing games and I don't appreciate it from my 22 fellow Councilmen whatsoever. We should be up here 23 deliberating right now and I want to apologize to your 24 client and I want to apologize for a pros'~cutor for not 25 doing his job. 1 MR. GORE. Thank you. Thank you very much. 2 -MR. McDONOUGH: I submit, for the record, 3 that right now Council should be deliberating and there 4 should be discussion and deliberation on this particular 5 matter and that Councilman Szeluga has chosen to excuse 6 himself and Mayor Gallagher has chosen to excuse himself, ? that doesn't preclude Council from proceeding 'with the 8 deliberations. If they choose not to be involved in the 9 deliberations and choose not to vote, that's f±ne. 10 MR. VALLONE: Vice-Mayor Harris, you have 11 the right. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HARRIS. I believe the Mayor said it was a receSs. He called recess. MR. VALLONE: And I objected. And he just walked off the podium to get a drink of water. MR. McDONOUGH: I understand, Councilman Harris, it's my understanding it requires three votes to have a recess. MR. VALLONE: MR. McDONOUGH: RiGht. I would request you, Councilman Harris and Councilman Vallone to proceed with your deliberations. MAYOR GALLAGHER: meeting was recessed. The record...shows...that.._..th~ ...... I just went for a drink of water. 111 I suggest that we recess until Councilman Szeluga is able to rejoin us. it won't take him 10ng. MR. McDONOUGH. There was an objection to that recess. ? 8 now, Mr. Mayor. 9 MAYOR GALLAGHER: 10 and wait for a minute. 11 MR. McDONOUGH: 12 that Council begin deliberating. 13 It's not a recess. 14 MAYOR GALLAGHER: 15 are not chairing this meeting. 19 20 21 22 23 24 25 MAYOR GALLAGHER: Was there an objection? MR. VALLONE: Yes, I registered an objection. I feel that we should be in the deliberation process riaht Well, we'll just sit here Mr. Mayor, I would request Attorney McDonough, you The Chair will do as it lap . MAYOR GALLAGHER: No comment. MR. SZELUGA: I'~ext time i-"li'"do it in y0'~'~-' Mr. Mayor, did somebody object 16 pleases, as far as ~unning this meeting. 17 Councilman Szeluga has every right, as an 18 elected member of the City Council, to be here for these deliberations and hope, ~.~e should have a little consideration for him. MR. SZELUGA: to my leaving? 16 17 18 19 2O 21 22 23 24 25 1 MR. McDONOUGH: Let the record reflect that 2 Councilman Sze.luga just stated next time he will do it 3 in my lap, referring to me, as attorney representing 4 Ralph Smith. 5 Councilman Szeluga, I submit to you, that 6 your conduct, sir, is inappropriate; shows -- MAYOR GALLAGHER: Mr. }IcDonough, you -- MR. ~'iCDONOUGH: -- It shows contempt for 9 myself and my client and Councilman Szeluga, ! request 10 you recuse yourself because you cannot be objective 11 in terms of these deliberations, sir. 12 MR. SZELUGA: Mr. McDonough, at one time I 13 made a statement to you that I would protect Officer 14 Smith's rights and privileges in this City Council and 15 in this city, as well as anybody else. MAYOR GALLAGHER: Ail right. Let's get going. i ask you folks to refrain from interrQpting.- the Council during its deliberations. It's a simple matter. The City Charter reads, in the City Charter, reads that an officer will -- MR. MCDONOUGH: Mr. Mayor. Excuse me. MAYOR GALLAGHEg: -- that an officer will have Attorney McDonouch, please do not interrupt 1 us again. 2 MR. McDONOUGH: I apologize, Mr. Mayor. I 3 won't do it again. I would just like to have a ruling on 4 my motion for recusal of Councilman Szeluga. 5 MAYOR GALLAGHER: DO you recuse yourself? 6 Because Councilman Szeluga made some kind of 7 a statement about next time I'll do it in your lap, 8 certainly it's not reason for hi. to recuse himself -- @ MR. GORE: I would object to the motion for 10 recusal. ~r. McDonough should be very thankful that he 11 is, in fact, not on trial, or perhaps something would 12 have happened. 13 MAYOR GALLAGHER: Objection sustained. 14 All right. 15 Now, Officer smith has the right to a 16 hearing before the City Council and the City Council 17 shall approve the Honorable Mayor and three members for 18 suspending such officer to thereupon stand removed and 19 vacated. Shall have a pre-termination hearing, prior to 20 this deliberation. 21 Okay. It is the Council's decision to 22 decide whether they approve of the action of the ~ayor 23 for suspending such officer or not approve the suspending 24 such officer. If in fact approval, it is by three 25 members of the Council, the officer stands removed. 114 10 remove him. you don't. What,s the pleasure of the Council? .MR. HARRIS: It is upheld to remove, him? MAYOR GALLAGHER: Yes. If it is upheld, we You either uphold my recommendation or You either approve it or you don't. Takes 6 7 8 9 or what? three votes of the members of the Council. What's the pleasure of the Council? MR. HARRIS: Are we having any discussion, MAYOR GALLAGHER: Well, we haven't heard 11 any motions yet. 12 MR. VALLONE: Mr. Mayor, at this time, I 13 would lik~ to make a motion that your request, as Mayor, 14 to remove Corporal Smith be denied, based on the 15 following facts: 16 It was not proven to my satisfaction that 17 specific questions which were addressed -- and the key 18 work is specific -- these specific questions that were 19 addressed in Exhibit A and Exhibit B, in depositions 20 taken in August and one taken in October,did not, in fact, 21 present a lie. Questions in Exhibit A are not the same 22 as questions in Exhibit ~ 'and that this ~n's-own 23 admissions, Corporal Smith, under oath, here, this 24 evening, deny that faCt. 25 So, I will move that th~ info~mation'that 1 2 3 Sebastian. 4 5 6 7 8 9 10 11 12 was presented .here this evening does not justify your claim to remove Corporal Smith from the police force of MAYOR GALLAGHER: Could you, kind of, lump it into a motion that you do'not approve of the action of the Mayor, so it's by the Charter? MR. VALLONE: That's what I just said. Do you want me to reiterate it again? No problem. I will make a motion at this time that, according to the Charter, and the recommendations of the Mayor, to remove Corporal Smith from office as officer of the Sebastian Police Department, be denied based on 13 the information presented tonight does not satisfy me 14 that a lie was presented by Officer Smith. 15 MAYOR GALLAGHER: Just for the record, let 16 it show that the motion was made in the language that He is He is not Corporal Smith. Okay. But we get the gist. Is there a second to the motion? 17 he was Corporal Smith. 18 police Officer Smith. 19 20 21 22 23 24 25 MR. SZELUGA: Mr. Mayor, the motion, I believe, means that the action of the 5~ayor is to be refused. Council. MAYOR GALLAGHER: That's right. By this Correct. That's the motion. MR. SZELUGA: Okay. With all the statements discussion. being made and sO forth, I'm going to second it, for MAYOR GALLAGHER: We have a motion and a second for discussion. Is there any discussion from the 5 Council? ? bit. 8 9 MR. HARRIS: Yes. I think there's quite a I have heard here tonight a lot of stuff and that there's not specifics in the one deposition, 10 where there is specifics in the other. 11 I also heard a lot of other testimony being 12 brought in which I go back to saying that I agree with 13 the, Mr. Gore, for once, I aoree with ~r. Gore that we 14 are considering these two depositions and I cannot see 15 where this testimony can tell us what ~r. Smith was doing 16 when he gave these depositions. 17 I find, to me, discrepancies in the first 18 deposition, on page 16, in, about at 19, where the 19 question is asked if Chief Nappi ever told you to get 20 Flood or his friends and relatives and the answer, "No 21 more so then you tell anybody to get any other lowlife 22 crook, etc., and it continues on clear over to page 18 23 and, where Mr. McDonough is asking the question "Put it 24 happened more than once?" Is that a true statement?" 25 He says, "NO." "It's only happened one time?" "Qualify 1 2 3 4 5 what you say, get him, you know. Doing, you know, trumping up stuff or jerking him around. Well, tell me how you interpret those phrases. McDonough asking Mr. Smith and Officer Smith 6 replies, "W]'~en you say -- Okas~, I interpret it as go out 7 and jerk him around, harrass him, tru~.F u~ and he's told 8 you that one time, anyway? 9 No, he has never told us to go out and 10 trump up, harrass, jerk around, or anything like that. 11 Then, in the testimony over here, the 12 question is asked, "'Were you told to take note of people 13 located at the house and basically follow them, take 14 license numbers, and so on, to which he says "Yes." 15 I believe that question is pretty specific 16 and I think the answer was more specific, when he said 17 "Ko, he's never told us to out and trump up or harrass 18 or jerk around, or anything like that." 19 I may be drawing conclusions but, to me, his 20 answers are pretty specific there. 21 The 17th, page 2, the bottom of that page, 22 says, again, specifically, "When has Nappi told you to go 23 out and get Flood?" His answer, "I don't know." But 24 it has happened more 'than once. Is that a true statement? ..... 25 "NO." 1 So, I mean, I think the answers were very 2 definite, or.they appear to be to me. 3 But, then, in the last part of this -- I 4 think it's page 32, in the 12th line, there, it says, 5 "Have you or any other officers ever been directed to 6 patrol Flood's house?" No, i have not and as far as ? anybody else, I don't know. Probably a good place to 8 patrol but it's never been said to be done. 9 "That's my question. All right?" 10 That was McDonough. 11 So, and then in this deposition here, the 12 latter one he specifically says, yes, that he was told 13 to do these things. 14 I think perhaps that particular statement 15 there is very definitely in conflict. 16 Another thing, I -- apparently, what's -- 17 the testimony that was trying to be brought forward here 18 is to tell us that the second deposition is the one that's 19 more revealing, or whatever~ and I was wondering why, 20 that -- maybe not wondering why but -- I think it's 21 peculiar that on the seventeenth, the night of the 22 seventeenth, he said that he received this threat, or 23 what he felt was a threat but still, in view of that, he 24 went the 18th and gave this deposition, whileon.the .................... 25 27th of August, without any threat over him, he gave the 1 evasive answers. That leaves quite a bit to wonder, to me. 2 And I have a lot of problems with this, 3 ~entlemen, as I have had all the way along and I've read 4 all the testimonies. I've been through all of them and § I think we're looking at two different things. I think 6 we're looking at the two testimonies and, Mr. Mayor, the ? Mayor's letter to us, stating that, and the examination 8 of these two depositions, felt that there were direct 9 conflicts of the police officer's sworn testimony which, 10 on the face of it, indicates that the police officer Smith 11 lied under oath and goes on to quote the ordinances. 12 And that, to me, is what we're to consider 13 tonight. We're not to consider whether there was wrong 14 use of police power. That's another thing for another 1§ 'time, if that's the case. But I think the thing, to me, the thing 17 that we're to consider tonight is these two depositions 18 and whether you feel within yourself that there's 19 ccnflict between these two testimonies. 20 And after having read them thorouqhly, a number of 21 times, and made notes in them, I feel that the general 22 context of the questions and i find the first deposition, 23 there's an undertone here and several of these questions 24 in regards to this surveillance of this type of-thing-, ............... 25 which Mr. Smith did'not answer the same as he did in the .L .,' U 1 second one. Why two testimonies? I don't know. That's 2 not for me to decide, or not, but as to whether there is 3 discrepancies in them, I feel that there is 4 discrepancies, and I've studied~them pretty thoroughly. ~ Now, that is not, I'm not touching on all $ this other testimony is in regards to and the testimony ? of Lisa Brock and all of this, is to me, pertains to 8 another issue totally than this particular thing that @ we're looking at tonight. 10 MAYOR GALLAGHER: Any other discussion? 11 MR. SZELUGA: Mr. Mayor, members of the 12 Council, I h~ve the same opinions relative to these two 13 depositions that are under question. 14 As has been indicated by Councilman Harris. 15 I can't understand. 16 That's all I have to say. 17 I agree with Councilman Harris. 18 MR. VALLONE: Mr. ~ayor. 19 MAYOR GALLAGHER: Councilman Vallone. 20 MR. VALLOI~E: Is my gross misunderstanding 21 of this Council to go ahead and use taxpayers money to 22 order these depositions and we didn't even hear anything~ 23 And I also feel that if this Council deny 24 to Counselor Offi. cer.-Smith.due processhere tonight ..... 25 and I do caution the Council in reference that the 1 original motion'was-made by Szeluga to get further 2 information -- Ha ha, now we can't hear the further 3 information. 4 I still have the floor. $ And I want this to be perfectly clear to 6 this Council: please, caution yourselves and in 7 reference to due process and I feel very strongly about 8 this, that due process was not served at this hearing 9 this evening. 10 I therefore, recommend that this Council vote 11 in affirmative with my motion to, in fact, deny the 12 letter that the b~ayor presented to this Council for 13 dismissal of Officer Smith. 14 MAYOR GALLAGHER: Any other discussion of 15 Council? 16 MR. HARRIS: Mr. Mayor, as far as the 17 information that was recuested I wasn't a party to it, 18 but that's neither here nor there. 19 The fact that the infor~ation came, I think, 20 perhaps somebody may have felt that there ~ight be 21 information there that would lend to the credence of 22 these two depositions. Myself, as I went through them, 23 I -- and, again, I read all of those, too -- I could not 24 find anything in those particular depositions that 25 supported or denied the authenticity of either one of 2 it. 3 then!. these particular depositions and that's how I feel about I'm sorry for the expense but -- and I went through There's testimony in there in regards to all this other stuff which, as I said, to me, is something that will be to be looked at separately. MAYOR GALLAGHER: Any other discussion from 6 7 Council? 8 MR. VALLOKE: Yes. In all due respect to the Vice-Mayor and to this community, vice-Mayor Harris 10 you're totally blind. 11 5.~R. HARRIS: 12 changed, Pete, but -- 13 MAYOR GALLAGHER: 14 from Council? 15 16 well, I do need my glasses Any other discussion Okay. The motion is to deny the recommendation of 17 tke ~ayor and affirmative, three affirmative votes will 18 keep, continue ~r. Smith's employment with the City. ~fill ~ou take a roll call, ~.{rs. Reid. CLER}~: Vice-~ayor Harris. MR. HARRIS. No. CLERK: Councilman Szeluga. ~R. SZELUGA: No. CLERK'f Councilman Vallone. 19 20 2~ 22 23 24 25 ~R. VALLO~JE: Yes. Mayor Gallagher. No. CLERK: .MAYOR GALLAGHER: Okay. A motion to affirm the recommendation of Mr. Mayor. the Mayor is in order. MR. SZELUGA: MAYOR GALLAGHER: Councilman Szeluga. MR;.SZELUGA: Listening this evening and reviewing the documents an~ so forth, I hereby make a 10 motion that the Mayor's recommendation for termination 11 of Officer Smith be upheld. 12 MAYOR GALLAGHER: 13 there a second? There's a motion. Is 14 MR. HARRIS: Second. 15 MAYOR GALLAGHER: We're' now ready for 16 discussion. Is there any discussion from the Council? 17 MR. VALLONE: Yes, Mr. Mayor. I would like 18 to go on record and say that this motion that's in front 19 of this Council this evening should be denied. Again, I 20 made the statement, again, that due process was not 21 followed and I really feel that this statement that I'm 22 making next -- I don't think the rest of this Council's 23 going to sleep awful good tonight and I'm really, totally 24 ashamed of sitting up..here with you this evening. You're 25 a bunch of jerks. 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 MAYOR GALLAGHER: Anyone else? MR. HARRIS: Thank you Pete. And, as far as sleep, i haven't slept for a 4 good many nights, going over this thing. 5 MR. SZELUGA: I've been insulted by 6 professionals. I mean, who cares about amateurs? MAYOR GALLAGHER: Any other discussion from Council? Anyone else want to call anybody else names? Miss Reid, would you take a roll call, please. CLERK: Vice-Mayor Harris. MR. HARRIS: Yes. CLERK: Councilman Szeluga. MR. SZELUGA: Yes. MAYOR GALLAGHER: Did we Get a second? CLERK: Yes. MAYOR GALLAGHER: Okay. CLERK: Councilman Vallone. MR. VALLO~E: No. CLERK: Mayor Gallagher. MAYOR GALLAGHER: Yes. Okay. Officer Smith is terminated. (whereupon the meeting adjourned at 7:50 P. M.) 25 CERTIFICATE STATE OF FLORIDA COUNTY ~OF INDIAN RIVER ss. I, Patricia Bargo Held, Court Reporter, do hereby certify that the above entitled cause was heard as hereinabove set out; that I was authorized to and did ? report in shorthand the proceedings and evidence adduced 8 and offered in said hearing; and that the foregoing 9 pages, numbered 1 through 124, inclusive, comprise a 10 true and correct transcription of my shorthand report 11 of the proceedings of said cause taken during said 12 hearing. 13 I~ TESTIMONY WHEREOF, I have hereunto affixed my 14 signature this 14th day of January, 1986. 15 16 17 18 19 ";'"; ' ~.3. 3.' ', Patricia Bargo Hei'~, Notary Public My Commission expires $-28-89 20 21 22 23 24 25