Head, Brian | Testimony transcript (Continued)

Transcript of the Testimony of Brian Head (Continued)

Date: November 7, 2013Volume: I

Case: In Re: Joplin Critical Investigation

Printed On: November 13, 2013

Holliday Reporting Service, Inc.Phone: 417-358-4078

Fax: 417-451-1114Email:[email protected]

Internet:

Brian Head (Continued) In Re: Joplin Critical Investigation

417-358-4078

Holliday Reporting Service, Inc.

Page 1

IN RE: JOPLIN CRITICAL INVESTIGATION

CONTINUED SWORN STATEMENT OF

BRIAN HEAD

Taken on Thursday, November 7, 2013, from 11:51 a.m. to

12:13 p.m., at the law offices of Juddson H. McPherson,

LLC, 626 S. Byers, in the City of Joplin, County of Jasper,

State of Missouri, before

SHARON K. ROGERS, C.C.R.650,

a Certified Court Reporter and a Notary Public within and

for the County of Jasper, and State of Missouri.

Brian Head (Continued)

In Re: Joplin Critical Investigation

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APPEARANCES

MR. THOMAS E. LORAINE

Loraine & Associates, LLC

4075 Osage Beach Pkwy., Suite 300

Osage Beach, MO 65065

[email protected]


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S T I P U L A T I O N

IT IS HEREBY STIPULATED that this Sworn Statement may be

taken by steno-mask type recording by SHARON K. ROGERS, a

Certified Court Reporter, and afterwards reduced into

typewriting.

It is further stipulated that the signature of the

witness is hereby waived, and that said Sworn Statement of

said witness shall be of the same force and effect as

though said witness had read and signed Sworn Statement.


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I N D E X

Page/Line

DIRECT EXAMINATION BY MR. LORAINE . . . 5-2

E X H I B I T S

(sic) - typed as spoken

(ph.) - phonetic


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1 BRIAN HEAD

2 DIRECT EXAMINATION BY MR. LORAINE:

3 Q. Sir, I want to remind you that you're still

4 under oath. Do you agree to that?

5 A. Yes, sir.

6 Q. And would you state your name?

7 A. Brian Head.

8 Q. You're City Attorney?

9 A. That's correct.

10 Q. I already interviewed you concerning this

11 investigation that we've had so far, is that

12 right?

13 A. Yes.

14 Q. We've talked about a lot of issues. I want

15 to go into one additional issue that has

16 troubled me during some of these interviews.

17 It's come to my attention that City Manager

18 Rohr may, in fact, be difficult to deal with.

19 I know from our earlier discussion we talked

20 about the fact that he excluded you from some

21 early negotiations with Wallace-Bajjali, is

22 that true?

23 A. Yes.

24 Q. And from what period of time do you think

25 those exclusions occurred?


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1 A. Oh, probably the first couple of months.

2 Q. So the first months of an 80 million dollar

3 contract the City Attorney was excluded by

4 intent by the City Manager?

5 A. That was my interpretation.

6 Q. Well, he told me when I talked with him that

7 you were negative on sticking matters,

8 whatever that means.

9 A. I'm not sure I know what that means either.

10 Q. So I guess he dealt with sticking matters for

11 the first two months. That would be my

12 conclusion. But in any case you were

13 purposely excluded?

14 A. I believe so.

15 Q. Had you at any time requested to be in those

16 meetings?

17 A. I did make a request, not directly to him, I

18 made a request of my bosses, the Mayor and

19 the Mayor Pro Tem.

20 Q. Was that during these two months?

21 A. Toward the end of the two months I made that

22 request and made my complaints to those

23 members of the Council.

24 Q. And you're an independent office from the

25 City Manager?


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1 A. That's correct.

2 Q. Can you think of any good reason why the City

3 Manager would exclude the City Attorney from

4 possibly an 80 million dollar contract?

5 A. I don't understand it. I consider having

6 legal counsel present when you're making

7 these momentous decisions if nothing else to

8 cover your own back side very worthwhile,

9 especially when the person is available and

10 in the building every day, full-time legal

11 counsel. And I don't know what the reason

12 was.

13 Q. You must have dealt directly with the City

14 Manager about these thoughts about being

15 included during that two month period, didn't

16 you?

17 A. We talked a few times about it and never

18 really seemed like I got anywhere because I

19 would see meetings occurring that I wasn't

20 invited to. Didn't know what they were,

21 didn't know why they were, but it was clear

22 that we had the master developer, the

23 manager, and other members of staff sitting

24 in on meetings.

25 Q. That you were not invited to?


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1 A. That I was not invited to.

2 Q. Have you had any experiences with the City

3 Manager where you saw tendencies by the City

4 Manager exhibited that would be threatening

5 or maybe a better word would be intimidating

6 to you personally?

7 A. I can think of a couple of instances, yes.

8 Q. Explain those for me.

9 A. Well, the first one, and I'm not sure of the

10 year and the date, the first one was during

11 we had a couple of ice storms, consecutive

12 ice storms, and I don't remember if it was

13 the first or the second ice storm, but some

14 sort of an email had gone out from the

15 Manager's office about something to ensure

16 that we were providing appropriate response

17 to the citizens and the victims of the ice

18 storm. And just thinking I was being nice I

19 sent out a similar email that said, but also

20 remember that our employees are victims of

21 this ice storm, too, and if we can be

22 flexible with them let's try to do that. I

23 just thought it seemed like a decent thing to

24 do because most of our employees were

25 impacted as well. In fact, I was at home, I


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1 didn't have power for seven days or something

2 like that during an ice storm. I was under

3 my house rewiring something on the furnace so

4 I could plug into a generator and I get a

5 call from the Manager's office saying that

6 he's looking for me and he's hot, wants to

7 talk to me. So I jump back in, went back to

8 the office, and he was very angry with me and

9 told me that there appeared to be a shadow

10 government operating within City Hall and

11 that it appeared that I was at the head of

12 it. I really didn't even understand what it

13 was about, why I was being told that I was

14 some sort of threat, I assume, something. I

15 didn't understand that. That was one

16 instance, but he was very angry.

17 Q. Visibly?

18 A. Visibly angry, yes, visibly angry. You know,

19 slamming hand down on the desk kind of angry.

20 Now the second time - now I'm not a shy

21 person and I have a forceful personality and

22 I won't back down to a threat. There was

23 another meeting, and this was more recently.

24 This was after Wallace-Bajjali started. And

25 I don't even remember what the argument


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1 started about, but it was in front of a

2 little group of people. It had to do with

3 what I perceive is just a lack of respect for

4 the office.

5 Q. For your office?

6 A. For my office. I've never felt like, number

7 one, he knew how to use full-time legal

8 counsel because he had never had that in any

9 other place he'd been. And number two, was

10 never understanding that I had a role and a

11 great deal more of my opinion than he felt.

12 And it had to do with some scheduling of

13 meetings and I have a real aggravation with

14 people who demand instead of ask. I think

15 all it was was the fact that I was being told

16 when this whole series of meetings was going

17 to be instead of a simple email saying are

18 you available for these meetings, this is

19 when we would like to have them. That

20 aggravates me and frustrates me. That seems

21 to be a lack of respect issue. And that's

22 how the issue started and it escalated into a

23 shouting match, me on one end of the table,

24 he on the other, in front of I know Leslie

25 Haase, I know Gary Box and possibly Bruce


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1 Anderson, and part of it I know was in front

2 of David Wallace as well.

3 Q. Of Wallace-Bajjali?

4 A. Of Wallace-Bajjali. And we were shouting

5 down the table at each other. I complained

6 about the fact that I was not included and I

7 didn't know what was going on and it was

8 difficult for me to do my job. He retorted

9 that I already knew way more than I should

10 and that had I been a man I would have come

11 to him and talked to him about being excluded

12 back when I went to members of the Council

13 about being excluded, and you know, slammed

14 his hand down on the table a couple of times

15 and at one point did not stand up, but looked

16 like he was going to.

17 Q. Looked like he was going to come after you?

18 A. Looked like he was coming out of his seat.

19 Now I'm not shrinking violet. Somebody comes

20 at me like that I don't back down so he could

21 probably make the same statement about me,

22 that he felt threatened. I don't know, but

23 I'm not shrinking violet. If somebody comes

24 at me like that I'm not just going to back

25 down and run away. That's just not my


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1 personality.

2 Q. I mean the situation was created not by you

3 as I understand it but by him?

4 A. I went into the meeting irritated because I

5 was being told as opposed to just some simple

6 basic respect of being asked. And I went

7 into the meeting aggravated and I intended to

8 ask the questions as to why this was

9 happening.

10 Q. You had repeatedly asked him to invite you to

11 these meetings?

12 A. I had. And it wasn't so much about I was

13 being asked to the meeting, but instead of

14 being asked I was being told this was when

15 the meetings were going to be and it doesn't

16 matter what else you have on your schedule,

17 this is when the meetings are going to be. I

18 mean it felt to me like for a period of time

19 that it was a way to try to pressure me out

20 of going to the meetings because you give

21 them to me on short notice, you don't tell me

22 until a few hours before or maybe the evening

23 before some sort of meeting early the next

24 morning or something like that. It's a way

25 to pressure me into not being there because I


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1 have other things that I've already scheduled

2 to do.

3 Q. Also assuming you may have some preparation

4 as a lawyer for those?

5 A. Correct.

6 Q. He certainly wasn't being sensitive to those

7 needs, is that true?

8 A. Yeah, I believe so.

9 Q. Are there other instances where you have

10 witnessed his conduct of slamming doors and

11 things of this nature?

12 A. I heard the slamming door things a few times,

13 but I don't know that - I mean I've heard

14 that in the hallways. I mean I've heard a

15 door slam, but I never related it to one

16 thing in particular necessarily. I have

17 never seen him, I've never really seen him

18 with anyone else, you know, making those

19 kinds of statements or being threatening.

20 I've never really witnessed that except those

21 two instances with me.

22 Q. You're aware of the term hostile work

23 environment, aren't you?

24 A. Certainly.

25 Q. As a lawyer that's a term of art, I guess,


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1 but would you think that this is the kind of

2 element that leads to that?

3 A. I think it certainly can in the right

4 circumstances.

5 Q. Have you heard complaints that would indicate

6 that's developing with this City Manager?

7 A. I've never heard anybody use those terms. I

8 have heard people who indicated they felt

9 like they could not make statements in

10 opposition to his policy or his desires

11 because they had either been threatened to be

12 fired or they thought they would be

13 threatened to be fired. I've heard those

14 kind of statements. But as far as a hostile

15 work environment from a legal term of art I

16 don't know that I've ever heard anyone

17 attempt to use that or I don't know that I'm

18 aware of any facts that would lead me to

19 believe that necessarily exists.

20 Q. If the proposed merger, the charter review

21 goes through, Ms. Hogelin's department would

22 be under the City Manager?

23 A. Yes.

24 Q. Are you aware of her position on that?

25 A. Yes.


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1 Q. Does she want that?

2 A. No.

3 Q. Why not?

4 A. She feels like that if that were to happen

5 that she would be fired immediately. And I

6 don't know what basis she has for that, but I

7 know that's how she feels.

8 Q. You would understand if the Police Department

9 isn't removed from that I anticipate that

10 same kind of issue might lie in that area,

11 also?

12 A. Yes, potentially so.

13 Q. And he's gathering departments under him as I

14 understand it?

15 A. He's gathered some divisions of the Public

16 Works Department under his direct authority.

17 Q. Is that the division that controls the

18 purchase of tires?

19 A. I believe the central garage does do the

20 purchase of tires.

21 Q. Are you aware of a complaint about the tire

22 company with Goodyear?

23 A. I have heard rumors on that, although I've

24 never confirmed any of that story. I have

25 one thing that I'd like to add that I don't


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1 think you're aware of.

2 Q. Yes.

3 A. Within the last year Mrs. Hogelin wasn't the

4 only person who it was proposed to go under

5 the authority of the City Manager. It was

6 also circulated behind the scenes by Mr.

7 Glaze, Council member, that my office be

8 placed under the authority of the City

9 Manager.

10 Q. All right. I assume that you wouldn't be in

11 favor of that?

12 A. Absolutely not. My legal opinion of City

13 Attorneys working for City Managers is you

14 set yourself up for conflict. You set

15 yourself up for a true legal conflict very

16 easily. There are cities that do it and

17 there are places that it works, however there

18 must be some separation so that the attorney

19 is able to recognize precisely who their

20 client is and not have that conflict.

21 Q. I don't know of any specialized legal

22 training that the City Manager has, do you?

23 A. I'm not aware of any.

24 Q. And if he's never had full-time City Council

25 in any of his job employments before that are


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1 you certain of that?

2 A. I'm not certain. That is my belief, but I

3 can't say that I know that for certain.

4 Q. That's based on you think your conversations

5 with the City Manager?

6 A. Conversations with him and just simply

7 knowing the size of the previous cities that

8 he had, they were all substantially smaller.

9 Q. Okay. Based on your experience of the last

10 nine years working with the City Manager

11 would you be able to render your job

12 correctly for the City if you worked under

13 this particular City Manager?

14 A. No, I could not. In fact, when that was

15 circulated I told Mr. Glaze very bluntly that

16 the day I was placed under his authority was

17 the day I resigned.

18 Q. Do you think this matter should be brought to

19 the attention of the City Council by my

20 investigation?

21 A. I have to leave that to you. I have felt for

22 a long time that there was something amiss

23 with not being included, but I have no

24 concrete facts to determine what those were.

25 Q. Well, let me ask you along those lines, are


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1 you aware of the City Parks Director? Do you

2 know who that is?

3 A. Yes.

4 Q. Who is it?

5 A. Chris Cotten.

6 Q. Are you aware that he suffered a complaint by

7 his supervisor, Mr. Rohr, for independently

8 seeking the independent ball club, the matter

9 that's presently pending before the City, did

10 you know he got censured by Mr. Rohr on that?

11 A. I was not aware of that.

12 Q. Who would I investigate? If I wanted to get

13 ahold of that record who would I call?

14 A. The Human Resources Director, Dave Allgood.

15 Q. And Mr. Allgood would have the existence of

16 such a record, is that right?

17 A. He would.

18 Q. Is he under the City Manager's authority?

19 A. Yes, he is.

20 Q. Now, City Attorney, would you make an effort

21 to procure that because I won't be back here

22 on my behalf. I don't know if there's a way

23 to eradicate a record, but I want to make

24 sure I get that record before the next visit.

25 Would you be able to do that today?


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1 A. Yes, I will.

2 Q. All right. If I told you the City Public

3 Works man, Chris Cotton, testified here the

4 difference between the City acquiring someone

5 and running it through Bajjali would be

6 probably 20 to 25 million dollars, would that

7 surprise you?

8 A. It wouldn't surprise me that it was higher,

9 but that amount is a surprise.

10 Q. That's what he testified. I don't know what

11 the basis for that was, but it seems to me

12 depending on what I've learned under you,

13 there's been some vestige of secrecy

14 involving the Wallace-Bajjali contract. At

15 least to your exclusion by the City Manager.

16 A. I think early on especially there was. And

17 with regard to this baseball thing I have had

18 no briefing, no involvement in it whatsoever.

19 Didn't know it existed, in fact, until was

20 told that we were going to have a work

21 session on it Monday night. I still haven't

22 seen any documents on it.

23 Q. I assume that - no, I don't assume. I know

24 that Mr. Cotten told me that he was directed

25 - the reason he was subject to discipline is


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1 that it had not been run through

2 Wallace-Bajjali rather than directly through

3 the City. Does that raise some awareness on

4 your part?

5 A. Yes, I believe so.

6 Q. Given the background that you know concerning

7 the secrecy or at least the exclusion of you

8 that troubles me as a lawyer. Does it

9 trouble you?

10 A. It does. I would see no reason to reprimand

11 or otherwise take employment action on an

12 employee for - you know, even if ultimately

13 you felt that you had to follow through with

14 the Wallace-Bajjali contract for that I would

15 be very interested to know what the basis for

16 that reprimand was.

17 Q. And further is the matter that's being

18 brought up is that being brought up through

19 Wallace-Bajjali? I thought it was to the

20 exclusion of Wallace-Bajjali.

21 A. I don't know. I have not yet seen any

22 documents.

23 Q. Well, keep your eye on that because my

24 understanding talking with Cotten was that

25 this proposal was followed through to the


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1 exclusion of Wallace-Bajjali which further

2 heightens my suspicions.

3 A. The only thing that I have been told was that

4 it came from the Chamber of Commerce. I

5 haven't heard any Wallace-Bajjali discussion

6 on it at all.

7 Q. And just because if it came from the Chamber

8 or came from Cotten or whatever does

9 Wallace-Bajjali get some kind of a fee

10 associated with it?

11 A. They would get a fee if it was one of the

12 projects that they had initiated and found

13 for the City.

14 Q. Well, they didn't obviously find this.

15 A. Right, if the City had a - now they did

16 propose early on some sort of a ball field

17 and that may be what the Manager is relying

18 on. But as far as the use of Joe Becker

19 Stadium I don't think that was ever proposed

20 as part of their overall redevelopment effort

21 for the City.

22 Q. I think as a City Attorney I'm interested in

23 that aspect of this investigation and I would

24 caution you to be aware of it.

25 A. Yes, sir.


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1 Q. That's all I have, sir. Thank you.

2 A. All right.

3

4 (SWORN STATEMENT CONCLUDED)

5

6

7


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REPORTER'S CERTIFICATE

STATE OF MISSOURI

ss.

COUNTY OF JASPER

I, SHARON K. ROGERS, Certified Court Reporter in the

State of Missouri, do certify that pursuant to the

foregoing Stipulation the witness came before me on the 7th

day of November, 2013, was duly sworn by me, and was

examined. That examination was then taken by me by

steno-mask recording and afterwards transcribed; said Sworn

Statement is subscribed by the witness as hereinbefore set

out on the day in that behalf aforesaid and is herewith

returned.

I further certify that I am not counsel, attorney, or

relative of either party, or clerk, or stenographer of

either party or of the attorney of either party, or

otherwise interested in the event of this suit.

________________________

SHARON K. ROGERS, CCR-650

Head, Brian | Testimony transcript (Continued)

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Transcript of Head, Brian | Testimony transcript (Continued)