Dale F. Norris, State Bar No.

020608
LAW OFFICE OF DALE NORRIS, LLC
517 West Monte Vista Road
Phoenix, Arizona 85003
(602) 307-5627
fax: (602) 325-0486
norrislaw@cox.net
Attorney for Complainant

BEFORE THE ARIZONA

STATE PERSONNEL BOARD

SIMON WADE, )
Complainant, )
)
v. ) COMPLAINANT’S
) OBJECTIONS TO
ARIZONA DEPARTMENT OF PUBLIC ) FINDINGS OF
SAFETY (DPS); HESTON SILBERT, in his ) FACTS, CONCLUSIONS
capacity as Deputy Director of DPS; ) OF LAW AND
MATTHEW MURRAY, in his capacity as ) RECOMMENDATION
Sergeant with DPS; PETE CURTIN, in his )
Capacity as Sergeant with DPS; )
Respondents. )
)

1 Complainant, by and through undersigned counsel, submits this Objections to

2 Findings of Facts, Conclusions of Law and Recommendation.

4 STATEMENT IN PARTIAL SUPPORT OF CONCLUSIONS OF LAW

5 The Hearing Officer correctly finds, as a matter of law, that the 18-page letter

6 written by the Complainant is a protected disclosure under Ariz.Rev.Stat. § 38-531, et

7 seq.

8 During the course of the hearing in this matter, the Respondents argued that
9 Complainant’s disclosure did not meet the statutory requirements because the 18-page

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 1 letter did not contain a date. However, the letter was hand-delivered to a Arizona

2 Department of Public Safety (DPS) representative assigned to the department’s

3 Professional Standards Unit (PSU). (Complainant Exhibit 4, pp.037 & 038). In

4 response, Complainant argued that under the doctrine of “substantial compliance” that

5 lack of a date, under these factual circumstances, would not eliminate the document

6 being protected under Arizona’s Whistleblower protections. See State v. Galvez, 214

7 Ariz. 154, 157; 150 P.3d 241, 244 (App. 2006) (Holding that "substantial compliance"

8 generally means that the information provided has satisfied the purpose of the relevant

9 statute, and the inquiry is whether the failure to comply with the statute prejudiced a

10 party.). In this case, there is no prejudice to DPS where it is, in fact, certain of the date

11 the document was received and a date on the document would only be redundant.

12 At the time of the Respondents’ protest, the Hearing Officer ruled the

13 Complaint’s disclosure met the statutory requirements, and we concur with his Finding

14 that “Complainant’s undated May 2, 2016 eighteen (18) page complaint to the

15 Professional Standards Unit of the Department of Public Safety is a ‘disclosure’ within

16 the meaning of ARS, §[38]-532 A…” Although Complainant concurs with the Hearing

17 Officer on this issues, he takes exception to the remainder of his Conlusions.

18

19 OBJECTIONS TO THE FINDINGS OF FACTS

20 Trooper Wade respectfully disagrees with Hearing Officer Merkow in his

21 ultimate findings, conclusions and recommendation. Like DPS and the other

22 Respondents, the Hearing Officer has villainized Trooper Wade for bringing forward

23 serious concerns and matters of life and death. Although Trooper Wade’s writing was

24 clumsy and unartful, his intentions were to put an end to the many problems in the

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 1 Explosive Ordinance Disposal Unit (EOD) before someone was seriously injured or

2 killed. He did this at great risk and after being warned by a DPS commander that if he

3 didn’t drop these concerns it would not go good for him.

4 The Hearing Officer fails to included critical facts that were part of the record

5 and necessary for this Board to make a proper and informed decision. Complainant’s

6 objections are as follows:

7 Although it is mentioned that Trooper Wade “had a career in the U.S. Marine

8 Corps”, the Findings fail to completely inform the Board of his life-long and total

9 commitment to service and honor. This is necessary when judging Trooper Wade’s

10 character, honesty and intentions as the Hearing Officer does throughout his report.

11 Trooper Wade joined the Marine Corps at 17-years old and directly out of high

12 school. After a few years, he was assigned to bomb disposal duties and remained in

13 that capacity until his retirement in 2013. Trooper Wade served three tours in Iraq and

14 was awarded the Bronze Star with a V indicating bravery in combat. Trooper Wade is

15 a true hero and a warrior. He is passionate about serving the people of Arizona and is

16 unswerving in his belief that bomb disposal duties must be carried out with the utmost

17 caution and that EOD is no place for short cuts and practical jokes. Although he has
18 proven his honor under the most extreme circumstances, Trooper Wade admitted in his

19 testimony that he is not very articulate. It is unfortunate that Trooper Wade did not seek

20 assistance before giving his letter to DPS, but the shortcomings in his writing should

21 not eliminate the importance of the message.

22 Many important details about Trooper Wade’s 18-page disclosure document

23 were not included in the Hearing Officer’s report. These details include its format,

24 preparation and purpose. Unlike other official reports and memoranda prepared and

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 1 submitted by Trooper Wade, this was a letter “To whom it may concern” and not on an

2 official DPS document. It was not on a DPS memorandum or DPS letterhead. Trooper

3 Wade testified that he prepared this letter because he was frustrated at the inaction of

4 his superiors to his complaints. He prepared the letter at home on his own time, and

5 most unfortunately, he failed to seek advice from someone more experienced in law

6 enforcement. The purpose of the letter was to simply get someone, outside his chain of

7 command, to examine his complaints before anyone was seriously injured or killed.

8 The complaints in Trooper Wade’s disclosure are not simply about the misuse of public

9 funds or paperwork mistakes, many are about unsafe practices and procedures that

10 endanger lives.

11 Moreover, there is critical testimony and evidence left out of the Findings that

12 demonstrates the DPS’ animus toward Trooper Wade due to his disclosure. Trooper

13 Wade another EOD officer, Greg Loewen, testified that they brought many of these

14 concerns to Capt. Jason Leonard. The complaints went unresolved, and in fact, both the

15 Complaint and Trooper Loewen testified that they were advised by Capt. Leonard not

16 to pursue their complaints against Sgt. Curtin because it “would not turn out good for

17 you.” – As it turns out, that’s an understatement.

18 Further indications that DPS was irritated at Trooper Wade were statements

19 made to him by the internal Investigator Sgt. Matt Murray. During a recorded interview

20 with Trooper Wade, Sgt. Murray made it clear to the Complainant that it was

21 inappropriate for him to come forward with his concerns. Sgt. Murray stated to Trooper

22 Wade after he brought these concerns to supervisor, the “monkey was off his back.”

23 Sgt. Murray then asks a rhetorical didn’t Trooper Wade believe that was enough?

24 (Complainant Exhibit 7, @ 20:20 - 20:54).

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 1 During his testimony, Dep. Dir. Silbert was asked if DPS had a written policy or

2 provided any training to inform employees and supervisors about Arizona’s

3 Whistleblower protections. He stated he didn’t know of any. When asked what DPS

4 does to convey a message to its employees that there will be no reprisal for reporting

5 problems, Dep. Dir. Silbert could only say that he has held a few meetings with

6 employees. However, testimony showed that there is a general fear of reprisal for

7 speaking out by DPS employees. Several troopers who testified at the hearing on behalf

8 of Trooper Wade expressed their fear and concern of reprisal for their testimony.

9 These threats of reprisal, criticism and DPS’ general atmosphere of fear is

10 unmentioned in the Hearing Officer’s report and undermines the conclusion that DPS’

11 investigation and discipline of the Complainant was not a pretext for reprisal. This type

12 of intimidation undermines the purpose behind Arizona’s Whistleblower protections

13 and demonstrates DPS’ intended reprisal against Trooper Wade, and through this illegal

14 behavior suppress any reporting by its employees.

15 An important part of Trooper Wade’s reported concerns and frustration was the

16 lackadaisical approach his supervisor (Sgt. Curtin) and DPS took to the handling of

17 explosives. In his 18-page disclosure, Trooper Wade brought forward alarming

18 information about the misuse of explosives by Sgt. Curtin that placed another EOD

19 officer in grave danger. This matter is important to the Complainant’s case because the

20 facts demonstrate a clear difference between how discipline was pursued against

21 Trooper Wade versus how it was avoided against the central focus of Trooper Wade’s

22 complaints, Sgt. Curtin.

23 In his complaint, Trooper Wade described an event involving Sgt. Curtin

24 dangerously setting off an explosive device on the range while another EOD officer,

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 1 Cleave Odegard, was handling explosives nearby on the same range. Trooper Odegard

2 testified that it was an unsafe action by Sgt. Curtin, and it shocked and astounded him

3 that Sgt. Curtin would set off an explosive so close while he was handling volatile

4 explosives including old and unstable blasting caps. Both Troopers Wade and Odegard

5 agreed that Sgt. Curtin was smiling immediately after the explosion, and that Trooper

6 Wade loudly and immediately confronted Sgt. Curtin because this action was so

7 dangerous.

8 DPS’ audit and internal investigation resulted in conflicting statements from Sgt.

9 Curtin about the event. DPS neither investigated Sgt. Curtin’s conflicting statements

10 nor his actions that may have endangered the life of Trooper Odegard.

11 Contrary to the accounts of Trooper Wade and Trooper Odegard, Sgt. Curtin

12 asserted that this complaint was meritless and “disingenuous” because nobody said

13 anything to him about it at the time. (Complainant Exhibit 4, p.029). However,

14 Complainant did confront Sgt. Curtin at the time of this unsafe detonation, and both

15 Troopers Wade and Odegard testified to that confrontation clearly making Sgt. Curtin’s

16 assertion untrue. Surprisingly, Trooper Odegard was not interviewed by the internal

17 investigator.
18 Further, Sgt. Curtin’s statements about the event were inconsistent between his

19 interview with the PSU investigator and the auditor. In the PSU interview, Curtin

20 related that he found an old diversionary devise and described it as a type they no longer

21 use and that there was something unique about it that caused him not to put it with the

22 other explosives. This statement indicates a clear recollection of the event;

23 (Complainant Exhibit 4, p.028); however, when he was interviewed by Capt. Leonard

24 in the audit, Sgt. Curtin stated he could not remember if it was a diversionary devise or

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 1 a smoke grenade. (Complainant Exhibit 2, p.005). Sgt. Curtin gave conflicting accounts

2 of the event and part of his statement was directly refuted by two other officers. Neither

3 Sgt. Curtin’s conflicting accounts nor his refuted statement lead DPS to take up a

4 misconduct investigation for dishonesty.

5 In the audit, Trooper Odegard, an experienced EOD officer, was not asked about

6 whether he believed Sgt. Curtin’s actions were dangerous. Instead, the auditor asked

7 an FBI bomb technician who was not at the scene nor was he fully informed of the

8 explosives present during Sgt. Curtin’s gross mishandling of explosives. This seems

9 calculated to avoid the conclusion that Sgt. Curtin put Trooper Odegard in danger of

10 death or serious injury.

11 While ignoring these facts about the subject of the protected disclosure, DPS

12 pursued a misconduct investigation for the same conduct against the complainant. This

13 is a clear indication of reprisal, and there has been no evidence to explain DPS’

14 dissimilar treatment.

15 Given the serious and dangerous nature of Sgt. Curtin’s behavior, it is

16 inexplicable that he was not the subject of a misconduct investigation, was not removed

17 from his assignment nor receive any discipline for endangering the life of Trooper
18 Odegard or making conflicting and statements contrary to other witness accounts. This

19 demonstrates that DPS’ motivation in investigating and disciplining Trooper Wade

20 reprisal for bringing forward serious concerns about the EOD unit. It does not support

21 DPS’ contention that any allegation of untruthfulness is so serious it must be pursued.

22 DPS vigorously pursued charges against Trooper Wade while simultaneously ignoring

23 the same conduct by Sgt. Curtin along with an allegation that he endangered the life of

24 Trooper Odegard.

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 1 Because these are such fundamental aspects of the Complaint’s case it is difficult

2 to understand how these facts could have been omitted from the Hearing Officer’s

3 report. I believe that these facts inform the Board and demonstrate that the stated

4 reasons for the termination of Complainant was a pretext to DPS’ reprisal for his report

5 of matters of public concern.

7 OBJECTIONS TO THE CONCLUSIONS OF LAW:

8 Conclusions #3, #4 & #5 (p.18):

9 In making these conclusions, the Hearing Officer imports the very most

10 belligerent version of the events. As stated above, Trooper Wade has had a heroic life

11 of service and there was no evidence of any prior dishonesty.

12 Trooper Wade testified that when stating he had to “completely lie”, he was

13 indicating that no one, including his supervisor Sgt. Pete Curtin, informed the Chandler

14 scene commander that DPS used an uncertified canine team for a search at a bomb call

15 at a Chandler Walmart. He testified, he believed this to be dishonesty by omission.

16 Both the termination of the Complainant and the conduct of DPS in the manner

17 in which pursued the investigation of Trooper Wade constitutes “personnel action”

18 under Ariz.Rev.Stat. §38-531.A(c) (disciplinary or corrective action) and (e)

19 (suspension, demotion or dismissal). This added to the other action of reprisal including

20 his transfer from the EOD unit, Ariz.Rev.Stat. §38-531.A(d); and the administrative

21 assignment to his home after taking his gun and badge; Ariz.Rev.Stat. §38-531.A(l).

22

23 Conclusion #6 (pp. 18-19):

24 Complainant was initially contacted by the internal investigator Sgt. Matthew

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 1 Murray on May 12, 2017. Sgt. Murray testified this was not an interview and he did not

2 want to hear Trooper Wade’s side of the story. When Complainant was advised, he was

3 under investigation for stating he had to “completely lie”, he was both surprised and

4 confused. When Sgt. Murray gave him a notice of investigation for dishonesty, Trooper

5 Wade’s reaction was to say, “Not dishonesty on my part?” Sgt. Murray then told

6 Trooper Wade the allegation was because he said he had to completely lie to a Chandler

7 commander “but we are not going to talk about that today.” Trooper Wade had never

8 been the subject of a misconduct investigation and demonstrated his continuing

9 unfamiliarity with the process by saying, “I apologize. I’m nervous. I’ve never done

10 anything like this” as he fumbled with the document handed to him by Sgt. Murray.

11 (DPS Exhibit, DPS0264 – Wade Video, Professional

12 Standards_20160512_1411…wmv, @ 0:01:00-0:2:51). Even at the end of the meeting,

13 Trooper Wade was unsure why he was under investigation. When Sgt. Murray again

14 mentioned the allegation of dishonesty, Trooper Wade replied, “Am I in trouble for

15 that?” (DPS Exhibit, DPS0264 – Wade Video, Professional

16 Standards_20160512_1411…wmv, @ 1:00:42-1:01:10).

17 There is no indication that when he described the Chandler officer in charge of

18 the scene at the Walmart, that he intended to mislead Sgt. Murray. He was describing

19 the person he believed should have been told about the uncertified canine team used by

20 DPS.

21 Given the facts that Sgt. Murray specifically tells Trooper Wade they were not

22 going to talk about the allegation of dishonesty and Trooper Wade’s clear confusion

23 about the allegation and the investigative process, it does not follow that the Hearing

24 Officer would lean so heavily on Trooper Wade’s failure to set the record straight in

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 1 that meeting as evidence he intended to decisive DPS. At that meeting, he did not

2 understand that Sgt. Murray believed he actually spoke to and lied to the Chandler

3 commander, nor did he have a grasp that the investigation was focused on him and not

4 Sgt. Curtin.

5 Following this May 12, 2017 meeting with Sgt. Murray, Trooper Wade sought

6 guidance from a peer support observer as allowed by state law. The peer, Sgt. John

7 Allen, listened to Complainant’s story, looked at the notice of investigation given to

8 Trooper Wade, and according to Sgt. Allen’s testimony, told the Complainant he

9 believed that the PSU investigator thought he spoke with a Chandler commander and

10 told him a lie. Sgt. Allen testified that it was apparent that Trooper Wade did not

11 understand that.

12 Upon learning of this misunderstanding, and at the beginning of the very first

13 interview with Sgt. Murray on June 7, 2016, Complainant immediately informed the

14 investigator “I believe the misunderstanding of dishonesty comes from my lack of

15 articulation…”. (DPS0264 – Wade Voice Recordings, Simon Wade interview.wma @

16 5:00-6:55). He goes on to relate his belief that by not informing the on-scene Chandler

17 commander of the lack of certification for the canine team, they were dishonest.
18 At the end of that interview, Complainant reiterated that he didn’t lie, and Sgt.

19 Murray apparently understood this and recounted his understanding of Complainant’s

20 statement, “So for the tape… You didn’t speak to the commander saying we have a

21 certified canine team or any of that stuff, but the totality of the circumstances you felt

22 was inappropriate and the message out there was everyone was trained and ready to

23 go.?” (DPS0264 – Wade Voice Recordings, Simon Wade interview.wma @ 42:51 –

24 43:59). This ended the interview, and Sgt. Murray had no further questions for the

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 1 Complainant.

2 Sgt. Murray submitted a “draft report” just four days later. The draft was

3 returned to him the same day, he completed edits and on June 21, 2016, Sgt. Murray

4 submitted his “report”. (Complainant Exhibit 4, p.003). It is a reasonable conclusion

5 that in the June 21, 2016 report Sgt. Murray initially found that the Complainant had

6 not lied and there was a misunderstanding as he had summarized at the end of the June

7 7, 2016 interview. Because this would be important in proving reprisal by DPS, Sgt.

8 Murray was asked, during his testimony, what happened to the report he submitted on

9 June 21, 2016. He stated it was “shredded.” By shredding this report, Sgt. Murray has

10 concealed from Complainant significant and relevant evidence of the reprisal that

11 followed.

12 The June 21, 2016 report clearing Trooper Wade should have ended the

13 reasonable inquiry into the statement of Trooper Wade about the events at the Chandler

14 Walmart. However, DPS was not satisfied with this honest explanation of the matter.,

15 and what followed constitutes and proves reprisal against Trooper Wade.

16 It wasn’t until after Sgt. Murray met with the Dep. Dir. Silbert that additional

17 allegations of untruthfulness were added and the initial allegation was revived. On June
18 22, 2016, the day after Sgt. Murray submitted his report, he met with Lt.Col. Webb and

19 Dep. Dir. Silbert. (Complainant Exhibit 4, p.025). Testimony was that Dep. Dir. Silbert

20 told Sgt. Murray that the Complainant either had to have lied to the Chandler police

21 commander or to DPS in his 18-page letter submitted to PSU. Sgt. Murray was then

22 instructed to investigate further. The message was clear that Dep. Dir. Silbert was not

23 willing to accept anything other than a conclusion that the Complainant was dishonest.

24 All the while, DPS was ignoring serious allegations against Sgt. Curtin.

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 1

2 Conclusion #7 (p.19):

3 Complainant alleged that Sgt. Curtin was inappropriately using overtime from

4 the Racketeer Influenced Corrupt Organizations Act (RICO) funds (Complainant

5 Exhibit 2, p.10). He used the term “theft” in describing the conduct, but Trooper Wade

6 testified he didn’t know if it met the definition under Arizona’s criminal statute nor did

7 he consider his training as a peace officer when making this statement. Of course, the

8 word “theft” has a meaning beyond that described in Ariz.Rev.Stat. §13-1801, et seq.

9 It is also means, “An unlawful taking of property.” Webster’s 9th Collegiate Dictionary,

10 p.1222; 1.b.

11 Therefore, as discussed earlier, it was important to include the manner of

12 Trooper Wade’s complaint. It was written in letter form in a “To whom it may concern”

13 fashion and not on as an official DPS document (not on DPS memorandum or

14 letterhead). Trooper Wade was expressing his belief that Sgt. Curtin was not entitled to

15 use the RICO funds for overtime, and there was a reasonable basis for this belief.

16 Trooper Wade’s prior supervisor at EOD, Retired Sgt. Jerry Diehl, testified that the

17 policy when he led the EOD was RICO overtime could only be used for call-outs and
18 could not be used for training. He made certain his subordinates understood this policy.

19 Additionally, Trooper Loewen, still in the EOD unit, testified that was his

20 understanding too and one of the concerns he took to Capt. Leonard. Contrary to the

21 Hearing Officer’s conclusion, Trooper Wade could clearly believe Sgt. Curtin’s use of

22 RICO funds was “an unlawful taking of property.”

23
24

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 1 Conclusions #8, #9, #10 #11 & #12 (pp. 19-20):

2 These conclusion are centrally based on the Hearing Officer’s failure to consider

3 and include significant factual findings damning to the behavior of DPS in this matter.

4 The finding that there was nothing different in the treatment of the Complainant and

5 the subject of the complaints (Sgt. Curtin) relies on ignoring the facts previously

6 discussed.

7 Not only did DPS fail to investigate serious conduct on the part of Sgt. Curtin,

8 it aggressively pursued discipline against Trooper Wade without regard to the simplest

9 explanation of what happened. Further evidence of this fact, and contrary to the

10 Hearing Officer’s assertion, is DPS’ initiation of a criminal investigation against

11 Trooper Wade but not on Sgt. Curtin. There was no reasonable basis for a criminal

12 investigation of Trooper Wade. This is certainly true where the alleged conduct of Sgt.

13 Curtin did not likewise elevate to that level in the eyes of DPS.

14 It is worth noting that DPS has no written or established criteria for when a

15 criminal investigation will be initiated against an employee. This alone invites the use

16 of criminal investigations for reprisal and under arbitrary and capricious circumstances.

17 The only basis for initiating the criminal investigation of the Complainant was a
18 statement in his disclosure stating, “I took a Total Containment Vehicle (TCV) that I

19 was getting rid of in the Marine Corps. I sent it to the Defense Reutilization Material

20 Office (DRMO) and coordinated it being transferred to Sgt. Jerry Diehl at AZDPS.”

21 (Complainant Exhibit 1, p. 4 & 9). There is nothing in this statement that gives rise to

22 any suggestion of criminal conduct. The disclosure specifically asserts that the

23 equipment was turned over to the Defense Reutilization Material Office (DRMO).

24 Ironically, the contract between DPS and the Department of Defense was signed by the

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 1 investigator Dennis Young. (“Inquiry on the 2012 Acquisition of Excess Property from

2 the Federal 1033 Program”, Addendum F. This was part of the complete but

3 unnumbered QAA submitted by Respondents during the hearing). Inspector Young

4 should have cleared up the legality of the transaction when first assigned this matter.

5 Instead, Trooper Wade was relieved of duty, his gun, badge, and was assigned to his

6 home for nearly a month.

7 This uncalled-for investigation is juxtaposition to DPS’ approach to allegations

8 made against Sgt. Curtin. Complainant related facts that that Sgt. Curtin could have

9 committed a criminal act when he placed an EOD team member in life threatening

10 danger by setting off an explosive devise while that team member was handling

11 explosives nearby on the same range. (Complainant Exhibit 2, p.10 & 11). However,

12 Sgt. Curtin’s actions did not prompt a criminal investigation nor any scrutiny like the

13 allegation against Complainant. According to the testimony of both Sgt. Curtin and

14 Dep. Dir. Silbert, Sgt. Curtin was not the subject of a criminal or internal investigation

15 for this conduct; was not given a notice of internal investigation alleging misconduct,

16 nor was he removed from his assignment and sent home.

17 When the treatment of Trooper Wade is compared to the treatment of Sgt. Curtin,
18 there is clearly, competent evidence that the investigation and ultimately the discipline

19 of Trooper wade was in reprisal for his complaint. There has been no evidence or

20 testimony to explain the disparate treatment by DPS, and it cannot be said the

21 allegations are not comparable where Sgt. Curtin has made conflicting statements

22 during official investigations, has had those statements and his testimony under oath

23 directly refuted and by his conduct that put a subordinate in grave danger.

24 DPS pursued discipline against Trooper Wade in reprisal for his disclosure while

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 1 protecting and shielding the subject of those complaints.

3 OBJECTIONS TO REASONS FOR RECOMMENDATION

4 The Hearing Officer recounts his belief that Trooper Wade did not set the record

5 straight about the misunderstanding over his statement. Again, Trooper Wade stated

6 during interviews and during his testimony, that he did not correctly articulate his

7 meaning of he had to “completely lie” to a Chandler commander. He further testified

8 that he didn’t know that was how that statement was understood until it was pointed out

9 to him by Sgt. Allen. After learning this, he set the record straight at the very first

10 opportunity. In listening to Trooper Wade’s first interview, the first five minutes is

11 taken up with formalities and background information. At the five minute mark the

12 interview turns to the allegation of untruthfulness, and Trooper Wade immediately

13 explains his statement.

14 To believe that Trooper Wade intended to lie in his letter, the Board must accept

15 that he chose for his first act of deception an event and information that could be easily

16 verified. The Hearing Officer’s characterization of this statement as a “vast miscarriage

17 of the events and a gross overaction of the issue”1 fails to account for Trooper Wade’s
18 frustration and the extremely serious nature of the work in the EOD unit. When not

19 exposed to the additional dangers brought on by the bad behavior and marginal

20 competency of Sgt. Curtin, it may be easy to make this characterization, but when you

21 live and die by the actions of your team members, I suspect you see these issues more

22 seriously.

23 In his testimony, Trooper Wade described how he has watched men in his

1 Hearing Officer also describes his allegation as “reckless”. This is an opinion that is likely to
change depending on your personal exposure to danger and your experience in these matters.

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 1 command killed or seriously wounded when they failed to follow policy or acted

2 carelessly. You can’t experience this without it having an effect on your world view.

3 On page 27, the Hearing Officer writes about an “undercurrent” in Trooper

4 Wade’s account that he was under duress not to divulge the fact DPS used an uncertified

5 canine team in the search. Of course, we heard from other troopers that there is a general

6 fear of reprisal for reporting errors of supervisors. Trooper Wade testified he was

7 conflicted but decided not to say anything to avoid embarrassing Sgt. Curtin and DPS.

8 Unmentioned by the Hearing Officer is the fact that the auditor Capt. Leonard

9 concluded that the deployment of the uncertified canine team was contrary to DPS’

10 written policy. It was the DPS’ testimony that canine teams could benefit from

11 exposure to these types of low level threats, but the use of the team at the Chandler

12 Walmart was contrary to DPS policy. (Complainant Exhibit 2, p. 014). This is what

13 Trooper Wade knew, and it is his belief that being lax with the rules can result in

14 horrible consequences.

15 The Hearing Officer’s reliance on Trooper Wade’s agreement with Sgt. Murray

16 that his initial statement that he had to “completely lie” was not correct, fails to

17 acknowledge that Trooper Wade was subjected to over 6 hours of interrogation by Sgt.
18 Murray who repeatedly told him it was not true. In reality, Trooper Wade was simply

19 agreeing that it was not true that he spoke with and lied to a Chandler commander at

20 Walmart which was exactly what he told Sgt. Murray at the very beginning of DPS’

21 inquisition. His statement in the 18-page letter was neither false nor “subversive” as the

22 Hearing Officer opines. When Sgt. Curtin failed to inform the Chandler Police

23 commander about the lack of a certification by the canine team, this flew in the face of

24 Trooper Wade’s character of honesty. DPS has argued it wasn’t necessary to tell anyone

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 1 at Chandler, but the evidence is that the Chandler Police Department requested a “bomb

2 dog” to assist. When DPS showed up with a canine unit, the inference was clear but

3 dishonest, that the canine team was certified to provide the service requested. There is

4 nothing subversive about Trooper Wade’s belief that the Chandler commander should

5 not be left with a false understanding of the service provided. Neither DPS, nor

6 apparently the Hearing Officer, believe honesty extends to relationships with other

7 agencies.

8 Although it is true that Trooper Wade repeated the exact “he had to completely

9 lie’” statement in the memorandum he authored after the initial meeting with Sgt.

10 Murray, the Hearing Officer does not share that Trooper Wade had not at that point

11 spoken with Sgt. Allen. He quoted the phrase from his initial letter and simply

12 explained that he was put in the position to be deceptive because Sgt. Curtin failed be

13 honest with the Chandler commander. Whether DPS believes it is important to be

14 honest with other agencies is not the question here. Trooper Wade believed in the

15 importance of being honest, and based on his combat experience the necessity to follow

16 the rules for bomb technicians. DPS’ own audit found the use of the uncertified canine

17 unit was a violation of policy and that was important to Trooper Wade as an experienced
18 EOD officer. Unlike the characterization of the Hearing Officer that he was trapped by

19 his “careless, heedless and irresponsible words”, instead, Trooper Wade was trapped

20 by his own sense of honesty and belief in the need for the utmost care when dealing

21 explosives threats, no matter how “vague”.

22 The Hearing Officer insults Trooper Wade and dishonors his long and proven

23 service to his profession by calling Trooper Wade’s concerns “purely egocentric.” This

24 is not evident in his disclosure, because most of the issues brought forward by Trooper

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 1 Wade dealt with the threat of harm to others and many of the complaints he had heard

2 expressed by others. Why Trooper Wade was the only employee willing to ignore the

3 threat “it would not turn out good for you” is now obvious. Trooper Wade had nothing

4 to gain by making his complaints other than make DPS a better place. DPS has

5 fabricated an idea that he was concerned for his position in the EOD unit, but the

6 evidence belies this falsehood. Trooper Wade had never been the subject of a

7 misconduct investigation. The testimony and evidence indicated that Trooper Wade

8 had never received discipline, his evaluation immediately prior to his termination

9 indicated he was performing at an “above average” level, and he was the most

10 experienced and capable EOD officer at DPS.

11 At the end of his reasoning, the Hearing Officer again attempts to explain why

12 it was reasonable for DPS to call for a criminal investigation into Trooper Wade

13 assisting DPS to obtain a piece of decommissioned military equipment. He allows the

14 idea that it was a legitimate concern for DPS because Trooper Wade wrote, “I sent it

15 [Total Containment Vessel] to the Defense Reutilization Office (DRMO) and

16 coordinated it being transferred to Sgt. Jerry Diehl at AZDPS.” Neither the Hearing

17 Officer nor DPS has explained why this would indicate criminal conduct, but yet,
18 Trooper Wade’s allegation of Sgt. Curtin putting Trooper Odegard in danger as a joke

19 does not raise criminal issues. Trooper Wade reports of that incident could clearly meet

20 the definition of reckless endangerment (Ariz.Rev.Stat. §13-1201.A, “…recklessly

21 endangering another person with a substantial risk of imminent death or physical

22 injury.):

23 Pete Curtin, Cleave Odegard and myself were preparing to do a disposal shot.

24 All three of us grabbed a bunch of random explosives and carried them downrange to

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 1 the disposal site. I returned to my truck to unload the rest. While I was at my truck a

2 detonation occurred. I ran down range and saw Cleave Odegard and Pete Curtin

3 standing there, Cleave was obviously distraught and pissed off and Pete Curtin was

4 laughing. Pete Curtin decided to through a flash bang. The flash bang went off

5 relatively close to the explosives that were piled up. I first made sure that nobody was

6 injured and did scream several obscenities, I did not find this humorous at all. I thought

7 someone was seriously injured or dead.” (Complainant Exhibit 2, p.035).

9 This account of these events was confirmed by Trooper Odegard who stated he

10 was standing next to the pile of explosives and had a box of destabilized blasting caps

11 at his feet. Trooper Odegard, an experienced EOD officer, testified he was shocked by

12 Sgt. Curtin’s action, was speechless and saw that Sgt. Curtin was smiling. Shockingly,

13 neither the initial account (above), Trooper Odegard’s subsequent testimony, nor Sgt.

14 Curtin’s conflicting statements have prompted DPS to consider this matter as either

15 employee misconduct or criminal conduct.2 This lack of investigation was not

16 explained by any DPS witness, nor is there any viable explanation to explain the

17 disparate treatment of the Complainant resulting in his termination from employment.

18 DPS wanted to protect Sgt. Curtin, and after his blistering complaints about the EOD

19 unit, DPS wanted Trooper Wade gone.

20 There is no evidence in the record that can believably explain why statements

21 made by the Complainant were so aggressively investigated and twisted to result in

22 Trooper Wade’s termination of employment while similar conduct and the serious

2 We know that DPS did not investigate this as a misconduct issues, because when he was
interviewed, he was notified that he was a witness to allegations against Trooper Wade and not that
he was the focus of the investigation. (DPS Exhibit, pp.DPS0154-58).

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 1 actions of Sgt. Curtin were swept under the rug. Without a viable explanation for this,

2 the dismissal of Trooper Wade is without reasonable basis and in reprisal for his

3 protected disclosure.

5 OBJECTIONS TO THE RECOMMENDATION

6 For the foregoing reasons, and pursuant to Ariz.Rev.Stat. §38-532, the ultimate

7 finding is that a prohibited personnel practice was committed against Complainant in

8 reprisal for his May 2, 2016 disclosure.

9 If this Board is to give any meaning to the law and the protections guaranteed

10 by these statutes, it must shield the Complainant from the reprisal of DPS in this case.

11 Complainant requests that the Board take the following actions:

12 a. Order the pretextual dismissal of Complainant be rescinded;

13 b. Order all back pay and benefits be restored to Complainant;

14 c. Order Complainant be returned to his assignment as a Bomb Technician

15 assigned to the DPS Special Operations Unit; and

16 d. Order such other further relief as the Board deems just and proper in the

17 premises pursuant to its authority under Ariz.Rev.Stat. §§ 38-531, et seq.

RESPECTFULLY SUBMITTED, this 15th day of May, 2017.

LAW OFFICE OF DALE NORRIS, LLC

____________________________________
Dale F. Norris
Attorney for SIMON WADE

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The foregoing EMAILED this 15th day of May, 2017 to:

Arizona State Personnel Board

1400 W Washington St # 280
Phoenix, AZ 85007

COPIES of the foregoing EMAILED this 15th day of May, 2017 to:

Michelle Kunzman and John Fry

Office of the Arizona Attorney General
1275 W Washington
Phoenix, Arizona 85007-2926
Attorneys for DPS, et al

Harold J. Merkow, Esq.

1102 West Glendale Avenue, #116
Phoenix, Arizona 85021-8683
Hearing Officer

By __________________

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