Civil Service Commission Minutes - 12/15/1981 1 MEETING OF THE
WICHITA FALLS FIRE IAN ' S AND POLICEMAN ' S
t 2 CIVIL SERVICE COMMISSIOJ
3
4 Held at 2 : 00 p.m. on the 15th day of December, 1981 ,
at Room 500 , Wichita Falls City Offices , located in the
5
City of Wichita Falls , County of Wichita and State of
6
Texas .
7 Re : Lt. Walter Berend
8
9 MEMBERS OF THE COMMISSION :
10 Mr. Glynn Purtle , Chairman
Mr. Larry `Myatt
Mr. Moises Garcia
11 Secretary : Janet Hardepree
- 12
13
14 S :
Mr. Kyle Morrison
15 Attorney at Law
City of Wichita Falls
16 Wichita Falls , Texas 76301
17 APPEARING FOR .THE CITY OF WICHITA FALLS
Mr. Walter Berend
18 2404 Ruskin
Wichita Falls , Texas
19
APPEARING FOR HIMSELF
20
21
22
23
24 "
25 REPORTED BY : Linda Compton
z
1 P. R O C E E D I 1 G S :
2 M:. CHAIRAN : The Wichita Falls
3 Fireman' s and Policeman ' s Civil Service Commission
4 is now in session for the purpose of considering
s
the case of Lieutenant Berend' s temporary sus-
pension . Is Lieutenant Berend present?
6
MR. BEREND: Yes , sir .
7 MR. CHAIRMA:J : And are you represented?
8 MR. BEREND : No , sir.
9 MR. CIIAIRMA".i : You' re representing
10 yourself?
"R. BEREND: Right .
11
MR. CHAIRT'LU : And the City is
12
represented by Mr. Morrison?
13
MR. MORR.ISON : Yes , sir .
14 I1T'.. C'AIRMAN : Are both sides ready?
15 MR. MORRISON : Yes sir.
16 MR. BEREND : Yes , sir.
17 MR. CHAIRMAN : All right . Let' s
18 proceed.
MR. MORRISON : would the Commission
19
want an opening statement or should we just pro-
20
ceed with the evidence and witnesses?
21 r,ZR.. CHAIRMAN : That will be fine to
22 make an opening statement .
23 MR. MORRISON : Okay. I just want to
24 state to the Commission that Lieutenant Berend here
25 is an officer with the Fire Department who ' s charged
3
1 with the responsibility of discipli.ninc; certain
2 employees and hein ; disciplined himself and is
3 responsible for making decisions and that the
4 officer here refused to obey specific or special
orders to appear for training that was given him
5
by Chief Johnson . And the reason we ' re here is
6
for the Commission to determine whether punishment
7
was proper or whether or not the man should have
8 been punished and whether or not the punishment
9 given was proper.
10 MR. CHAIPJIA.'I : I probably have it
11 somewhere , Mr. Morrison, but I don ' t have it here
12 available that I 'm aware ; this regulation that' s
referred to in Lieutenant Beren d' s -- is it Berend
13
or Berend?
14 I4R. BEREND: Berend.
15 MR. CIIAIR�TAV: -- Berend, about the
16 whole issue of the case as to whether or not he
17 can be called back _for other than emergencies .
18
MR. MORRISOJ : If you' re speaking; of
19 Article 6. 3 , Section 24, I only have two conies of
that specific page . It is the City' s contention
20
that the first paragraph, first sentence of number
21 24 says that the fireman is subject to call at all
22 times and prepared to report promptly when noti-
23 fi.ed that their services are needed. That Chief
24 Johnson acted properly in ordering Lieutenant
25 Berend to report for duty .
4
1 MR. CHAIRMA-1 : Okay . Go ahead. Do
2 you want to make an opening statement?
3 MR. BERE-ID: I ' d like to add to that .
4 It says "be subject to call" and goes on to say
5 "when called, report to the officer in charge or
the battalion chief for a second or greater alarm
6
fire . " This was not even an emer.Qency situation ,
7 much less a fire .
8 MR. CHAIRMAt:1: Is there anything on the
9 pr eceeding page , Mr. Morrison , that would lend
10 more context to this ? You see what he ' s driving
11 at?
12 MR. MORRISON : Yes , sir . It' s the
City' s contention that the first -- that there
13
isn ' t , as best I 'm aware , Mr . Chairman . It ' s the
14
contention of the City that the first sentence in
15 that requires that they would be subject to call
16 and states a specific instance where generally
17 the calls would occur as a result of a second
18 alarm or greater fire and sets out specific re-
19
porting duties and times of duty for that instance
and not all instances . That ' s merely an example
20
of the first sentence .
21 MR. BEREND: Except that it says "be
22 subject to call , when called. " I think that ' s
23 not a general statement . I think that is a
24 statement of fact .
25 MR. CIJAIRMAT1 : Okay . Are you through.
1 with your statement?
2 H11. :1ORRISON : Yes , sir .
3 i4111. C9AIR1,IA-N : Okay . Do you want
4 to make a statement , further, now, Lieutenant?
�1R. BEREND: I really don ' t concerni.n
5
that. I would like to Sive you some of my personal
6
back-round if you' ll permit it .
7
T1R. CHAIRMANJ : That will probably
8 come in in the form of evidence , though, won ' t
9 it?
10 1R. pEREND : Not necessarily . It' s
11 just a background of myself, personally. I think
it will have an effect on your feeling
12 s toward
this particular case later on .
13
MR. CHAIRMAN : Well , I know, but
14 right now, just the opening; statement should be
15 confined to contentions and not to -- I believe
16 your record with the City and your previous
17 employment records and so- forth would be in the
18 form' of evidence which you can submit , but probably
not at this time .
19
M.R. BEREND: All right .
20
MR. CHAIRMAN : Go ahead.
21 MR. MORRISON : If the Commission' s
22 ready, we ' ll be prepared to call our first witness
23 now.
24 MR. CHAIRMAN : Okay .
r 25 MR. MORRISON : We call Mr. Chaddick .
b
1 UE'ROY CHADDICK.
2 having, first been duly cautioned and sworn to tell the
3 truth , the whole truth and nothin,; but the truth, testified
4 on his oath as follows :
DIRECT EXAMINATION
BY MR. MORRISON :
Q . Would you please state your full name and your
7 rank and title?
8 A. My name is Leroy Chaddick . I 'm a fire equipment
9 operator and I 'm assi-lned to the training division .
10 Q. And you' re essentially an assistant training
11 officer at this time , are you not?
A. Yes , assistant training .
12
Q . Okay. And you were present on a date in November,
13
I believe , of this year when you informed Lieutenant Berend
14 and others as to the date of a meeting to be instructed;
15 is that correct?
16 A. That' s rigInt .
17 Q. And when was that date?
18 A. That' was November 10 . I don' t remember what day
of the week, but it was the 10th of .iovember .
19
Q. Okay . And at that time , did -- or on that date,
20
did Lieutenant Berend tell you anything about that meeting?
21 Did he state that he was not available?
22 A. IIe said he couldn' t make it .
23 Q. Okay.
24 A. Didn ' t make the instructor' s certification class .
25 Q. And what time was the instructor' s certification
7
1 class scheduled for?
2 A. Scheduled for Novemb r the 13t'1 at 3 : 00 o ' clock
3 in our trainin? room.
4 Q. And that was seven or ei.,?ht days after you talked
to him and told him?
5
A. Ri?h t.
6
MR. CARCIA: Which was it , seven or
7 eip;ht days ?
8 THE ':JTT'1ESS : I believe it was eight
9 days . Lieutenant Berend was told on tie loth
10 and the instructor ' s class was the 18th .
Q. Okay . And you told him that, I suppose , that
11
morning,, sometime during the class , or --
12
A. During t'ze class b;,fore lunch , I believe .
13
Q. Okay. And after he told you that he was not
14
oing to be able to be there , did you tell him to talk to
15 anybody else?
16 A. I told him that it was up to -- it was between
17 him and Iiis district chief who assigned '.iim to be in the
18 class to start with, to make some type of arrangement .
Q. Okay . And who was his district chief?
19
A. Chief Bob Howard.
20
Q. And is district chief and battalion chief the
21 same title , basically?
22 A. Yes .
23 Q. Okay. You told him he needed to talk to his
24 district chief concerning whether or not he needed to
25 attend?
n
I A. Right .
2 Q . Why was the ieetinp, scheduled on the 18th?
3 A. It was scheduled on the 18th because the person
that was going; to do the certification -- certifying of
4
the instructors is from the Red Cross stand point -- is
5
strictly volunteer and she holds a full time job and that
6
was the only date that was available to her, so --
7 2. Okay. Do we have a lot of people that are train-
8 ed to teach instructors in the city?
9 A. No , as far as I know, there ' s only three or four.
10 Q. And you attempted to -- Did you attempt to find
11 anyone else?
12 A. Yes , in fact, on the Saturday, October 31st, I
had a Mr. Bruce Hosea lined up to instruct my people to
13
_ become instructors and he backed out on me right at the last
�f 14 second and couldn ' t make it.
15 Q. So you did attempt to get, I believe , you said
16 a woman at the State Hospital to do this?
17 A. Rig?It.
18 Q. And 'she told you what day she could be available?
A. Exactly .
19
Q. Were you at that instructor' s meeting on the
20
18th of November?
21 A. Yes , I was .
22 Q. Was Lieutenant Beren d there?
23 A. i.o .
24 Q. How many people were there at that meeting?
25 A. There were fourteen fire fighters and Mrs . "loser
9
1 there . Fourteen cou.,iLiri,y myself.
2 Q . There were thirteen people and then you and Mrs .
3 Moser and Mrs . Moser was the instructor?
4 A. Ri_gh t .
Q. How long did this instructor' s course last?
5
A. Well , it' s scheduled to last eight hours . We
6
started at 8 : 00 o ' clo6- and we actually dismissed at about
7 4 : 30 .
8 -MR. MORRISOd : I don ' t have any more
9 questions .
10 MR. CHAIRIAN : Lieutenant Berend?
11 MR. BEREAD: Yes , sir, I do .
CROSS EXAMI.-UTION
12
BY MR. BFRE'�D:
13
Q. Leroy, that date on the -- that meeting; was the
14 l3th , I think, instead of the loth . It was on Friday
15 morning . I think if you check the records , you will. find
16 that it is incorrect .
17 A. I 'm pretty sure it was the loth. .
18
Q. You're wrong. I have gone back and checked my
station log, and that' s the date I show to have been present
19
at that class on the l3th .
20
A. Well , I have to add that I don ' t work on Fridays .
21 0. Except that week , you did. You came in without
22 uniform on. You had your levis on. You made a special
23 arrangement, you said, to come in . Also , I was not advised
24 at that time to get with my district chief, although my
25 district chief did call me later that evening,.
10
1 MR. CIIAI"111AN : Lieutenant , you need,
2 at this stage -- again , you need to kind of direct
3 your input to questions to him. He ' s a witness
4 and he shouldn ' t be put in the position of arguing
with you at this point.
5
TIR. BERE'_JD : All right . I think that' s
6
all I have for him at this time .
7 MR. MORRISO`d : Okay . I have no .Further
8 questions of this witness .
9 MR. CHAIRMAJ: Does the Commission
10 have any questions?
MR. GARCIA: :Not at this time .
11
MR. CHAIRMAN : Thank you.
12
MR. MORRISON : At this time , I call
13
Battalion Chief or District Chief Bob Howard.
14 BOB HOWARD,
15 having bin duly cautioned and .sworn to tell the truth, the
16 whole truth, and nothing; but the truth, testified on his
17 oath as follows :
DIRECT Ev_kMT-JATION
18 — ——BY MR. MORRISON:
19
Q. Would you state your name and title for the
20
record.
21 A. I 'm kind of hoarse , you' ll have to bear with me .
22 Battalion Chief Bobby Howard, �,gichita Falls Fire Department .
23 Q. How long have you been with the .fire department?
24 A. Twenty-five years .
25 Q. Okay . Were you the battalion chief that chose
11
I Lieutenant Berend to sro to these meetin-,s ?
2 A. Yes , sir .
3 Q. And how many people were you responsible to nick
4 to attend?
A. Four .
5
Q. Were you contacted by Fire Equipment Operator
6
Leroy Chaddick concerning Lieutenant Berend' s statement
7 that he couldn' t come to the sleeting on the 18th?
8 A. Yes , sir .
9 Q. And w'_zat day were you contacted on that?
10 A. That was on a Friday . I 'm not -- they were
arguing about the date . Now, that' s a Friday before
it
that was supposed to be on Nednesday , the l8t1h, so , I 'm
12
not --
13
Q . This would be the Friday before the 18th?
14 A. T'_iat' s the loth or 13t'i . You' d have to look
15 on the calendar.
16 Q. Okay . You were contacted in the morning; concern-
17 ins; that?
A. Rinht.
18
Q. And did you receive a call from Lieutenant Berend
19
on Friday?
20 A. No , I called Lieutenant Berend after he got
21 back to the station that afternoon .
22 0. So, after the trainin'-, session was over?
23 A. Ri_gh t.
24 Q. Probably supper time or thereabouts?
25 A. 4 : 00 , 5 : 00 , or 6 : 00 o ' clock , som`where .
12
1 Q. Late afternoon?
2 A. Yeah .
3 Q.. Did you then have a discussion with Lieutenant
4 Berend as to why he was not coming?
A. Yes ,
5
Q . Did he state a reason that he was not going to
6
attend?
7
A. He said he had prior commitments .
8 Q. Did you later call him back on the following
9 Monday?
10 A. I went over to see him.
11 Q. You went to see him at his station the next
',7onday?
12
A. Yes .
13
Q. What did you discuss Monday morning?
14 A. Okay . All weekend I had thought about him not
15 coming and prior we had made other people come to a
16 CPR meeting, off-duty, and to me , it wasn' t fair that he
17 shouldn ' t come and Clese other people were made to come ,
18 so I took a disciplinary counseling form -- .first h went
19 and talked to -- you want me to give you the whole story?
Q. Well , go ahead.
20
A. Okay . First I went to Chief Johnson and told him
21 kind of what had happened and that I thought he should
22 come , so then I took the disciplinary counseling; form and
23 wrote down that he was supposed to be there and what the
24 consequences would be if he wasn ' t there . I wanted to make
25 sure he was a,,.jare that he was supposed to be there and what
13
1 could happen if he wasn' t . And I took it over there and
2 discussed it with him and talked to him about it .
3 Q. And after you talked to him about it , did he ask
4 you if he could talk to Chief Johnson about it?
A. Yes .
5
Q. And you agreed?
6
A. Right. I took him over and we talked to Chief
7 Johnson.
8 Q. And in talking with Chief Johnson , were any other
9 statements made or was it basically -- what did Chief
10 Johnson basically say? The discipline would occur if he
11 didn' t appear at the meeting?
12
A. Right. Chief Johnson told him the same thins; --
that we had required these other people to be there and he
13
thought Walter should be there also .
14 Q. And, while being a gentleman , told Chief Johnson
15 and yourself, again , that he was unable to attend?
16 A. Yes , sir.
17 Q. Did he make any specific reason why or did he
18 just say he had a prior_ commitment?
A. As best I can remember, he said he had prior
19
commitments that he had to take care of on that date .
20
Q. With the full understanding that he would be
21 disciplined?
22 A. Yes .
23 Q. And at least one full shift for _failing to
24 appear?
25 A. Yes , he was aware of that because that was the
14
1 reason that I. wanted to be sure that he knew that if he
2 didn' t show, what was going to happen .
1
3
W. MORRISON : I have no further
4 questions .
^14Z. BERE`dD: I have no questions .
5
MR, CHAIRMAN : Thank you.
6
MR. MORRISON: The next witness is
7 Chief Johnson .
8 HURSHEL JOHNSO`d ,
9 having, been duly cautioned and sworn to tell the truth , the
10 whole truth, and nothing; but the truth, testified on his
oath as follows :
11
DIRECT EXAMINATIO.I
12
BY MR. 11`10RRISON :
13 _
Q. Okay. TJould you state your name and rank and
14 where you work for the .record?
15 A. Hurshel Johnson , Fire Chief_ of the Fire Department,
16 City of ,,Jichita Falls .
17 Q. Okay. Chief_ Johnson, you, I believe made an
18order -- Did you make a special order just to Lieutenant
Berend to appear at a meeting on the 18th of ;:November , or
19
did you make , just kind of -- everybody was supposed to
20
come?
21 A. No , I didn ' t make no special order for. him, I
22 --
23 Q. You instructed everyone -- everyone was instruct-
24 e d?
A. Right . Through the training division , which
25
15
1 would, in. fact , be Leroy' s .
2 Q. Okay. Based on Rule or Article 6 . 3 of the lire
F
3 Department' s Rules and R.egulati.ons , you then -- naragranh
4 24, then you advised Lieutenant Berend that failing; to
appear at the meeting would be - - would cause him discL-
5
plinary action?
6
A. 1 didn ' t refer to this in talking to Lieutenant
7 Berend. I didn ' t refer to this article , but I did tell
8 him it would cause disciplinary action if he didn' t appear .
9 Q. Did you state specifically any discipline that
10 would occur or did you just advise him that discipline
would occur?
11
A. To the best of my recollection , I don' t think I
12
put a date, number_ or anything; on it , but I did tell him
13
disciplinary action would occur.
14 0. And then afterwards , he did -- you were advised
15 that he did not appear?
16 A. That' s correct.
17 Q. As a result of that, you, on the 23rd of 'November,
18 1981 , gave him' a letter stating that in accordance with a
Fireman' s and Policeman's Civil Service Act and this narti-
19
cular rule that you were suspending Lieutenant Berend for
20
two working days , or one shift?
21 A. Yes , that is correct .
22 "��. MORRISON : I believe all the
23 Commissioners have a copy of this letter of
24 dovember 23rd.
25 Q. Chief, did you net a cony that looks like this ,
16
1 yesterday, from the personnel office , discussing- the nature
2 and duties of the fire lieutenant?
3 A. I have had a cony of these for some time .
4 Q. Okay. You' ve had those for some time?
A. Yes .
5
Q. And that was done by someone that spoke with
6
your employees?
7 A. Yes , this was done last year through -- by the
8 job audit . The City Auditors audit all city jobs .
9 Q. Okay. And in this job audit discussion that was
10 done , as you say, last year, does it not state that Part
of the -- some of the illustrative examples of work of a
11
fire lieutenant is to instruct and drill his personnel in
12
fire fighting techniques and related subjects?
13
` A. It does say that here . Also in our rules and
F 14 regulations -- it' s in t'iat too .
15 0. Also states that lie is to instruct in fire and
16 related subjects . Is there also a rule that states that
17 the -- all firemen are to be knowledgeable and trained
in First Aid?
18
A. Yes , that comes under the Texas Standard Education.
19
That' s a state law.
20 Q. . And Lieutenant Berend was trained in First Aid,
21 was he not?
22 A. Yes .
23 Q. The course on lovermber the 18th that he was to
24 attend was to instruct him in how to train First Aid, was
25 it not?
17
1 A. That is correct .
2 Q. Is every person in the fire department presently
t
3 certified by First Aid., American Red Cross?
A. I would need to --
4
Q. Would the training officer be more aware of
5
that?
6
A. He would be more aware of that, but I don ' t think
7 they would be .from the way he shook his head back there.
8 Q. You suspect that there are a few people that are
9 not yet certified?
10 A. Let me rephrase that . They have been . "Je ' re
11 looking; at time element of your time expiring; in a year or
two .
12
0 . You have to be recertified every so often --
13
A. Right.
14 Q . - to maintain certification?
-
15 A. Uh-huh .
16 Q. So , now you' ve got people in the department that
17 can keen that certification up for your employees ; do you
18 not?
A. That' s correct.
19
MR. CHAIRMAN: Flay I ask you a
20
question, Mr. Morrison?
21 MR. MORRISON: Yes .
22 11R. CHAIRMAN : It has nothing to do
23 witq the evidence that you presented, but , is
24 there a different type of requirement for an
t indefinite suspension letter from, the department
25
13
1 head as opposed to disciplinary suspension
2 letter? The rules require an indefinite suspen-
3 sion letter to cite th,� Civil Service Rule being;
4 violated, but I don ' t find that requirement in
the disciplinary suspension requirements . Would
5
you care to comment on that?
6
M111. MORRISON: 21o , sir. I 'm -- I
7 didn' t assist in the drafting; of this one and I 'm
8 not aware of that requirement except in the in-
9 definite suspension . Perhaps the secretary --
10 ?[R. CHAIRMA1 : I ' m addressing Section
16 and Section 20 of the Civil Service Law.
11
Okay . I just wondered if you had any
12
input on that . Go ahead. I 'm sorry for the
13
interruption.
14 BY MR.. MORRISON:
15 0. Chief Johnson, you have been chief herefor several
16 years , haven' t you?
17 A. That' s correct.
18 Q. And 'in the last two or three years , or .four years ,
how often have you invoked Paragraph 24 on recalling of
19
your personnel for other than a fire?
20
A. I have did it on a f_e�v occasions , but I would say
21 it would be a rare occasion .
22 Q. Once a year, twice a year?
23 A. Twice a year, at the most.
24 Q. Okay . That doesn ' t include calling them back
25 for fires?
19
1 A No , it wouldn ' t .
f
2 Q. When did you get to be chief this time? When were
3 you appointed chief? In the ' 60s?
4 A. Yes , in the ' 60s .
Q. Okay . Jere you at any time in your dealings
5
with Lieutenant Berend ever unseL with the demeanor or
6
manner that he held throughout this?
7
A. You mean on this particular --
8 �. Yes .
9 A. No , huh-uh .
10 Q. He ' s been gentlemanly and Polite?
11 A. Very gentlemanly .
Q. Is he what you call a rowdy employee , or is he-
12
basically a Rood and stable fire fighter?
13
A. He ' s a ,good employee .
14 O . You don' t have any specific reason to dislike
15 him, do you?
16 A. Definitely not.
17 Q. You just felt that you had no choice but to
18 discipline this man?
A. That is right . That ' s correct .
19
MR. MORRISON : I have no further
20
questions .
21 CROSS AXAMIAATION
22 BY MR. BEREND:
23 Q . Chief Johnson , what level First Aid training was
24 this First Aid course"? Was it advanced?
25 A. I don' t follow you.
20
1 2. Well , I thinl: you have different levels of train-
2 ing of First Aid. You would just have a standard or basic
3 for "Joe Blow" and you would have advanced courses for
4 fire fighters or policemen . Nhat level was this particular
course?
5
A. This particular one?
6
Q. Yes , sir.
7 A. I think the Red Cross , I believe , calls this a
8 mini-course . I think Leroy could answer t',nat better than
9 I .
10 Q• [Mould you think that would be a course that would
be used for training fire fighters? Would you think it
11
would be a good enough course to train fire fighters?
12
A. I think our course calls for what -- twenty- four
13
hours ; is that correct, Bob? I think fire fighters minimum
14 is twenty-four hours , but the state requirement is a minimum
15 of twenty-four .
16 Q. How many hours did this course take?
17 A. This one was an eight hour course .
18 Q. Okay. And who was these instructors supposed to
teach once they were certified?
19
A. They will be teaching other city employees .
20 Not fire department?
21 A. No , I would say not fire department . They will
22 be teaching ot'_-ier city employees .
23 Q. In other words , this training was not for fire de-
24 partment personnel , then , was it?
25 A. Yes , it would be partly for the fire department
21
1 personnel .
t 2 Q. Exnept at a lesser level ; is that correct?
3 A. I probably need to refer that question back to
4 Leroy . Can I ask him, Tyr. Chairman?
MR. CHAIRMA1 : Unless it ' s objected
5
to . Any objections?
6
MR. BER.E 1D: I think that :could be
7 all right .
8 CHIEF JOHNSO.1 : Leroy, to be a compe-
9 tent instructor, can. First Aid Instructors in-
10 struct on any level?
11 MR. C_1ADDICK : No , they have separate
requirements as to what level you teach .
12
BY MR. B_EREND_:
13
Q. Okay . In other words , this course that we were
14 to be instructed on to become instructors for was seven and
15 a half or eight hour course , multi-media standard First
16 Aid I think is what it ' s called -- and it is not the
17 same type training that the rookie gets ; am I correct in
18 stating that? '
A. I wouldn' t say it wasn' t the same type , I would
19
say that --
20
Q. At the same level?
21 A. -- our recruit fireman ' s is much more thorough .
22 Q . Right .
23 14R. BERE'1O: That' s all I have .
24
MR. MORRISOV I have no further
25 witnesses , Mr. Chairman .
22
1 T1R. C'1AIRTWI : Okay .. Lieutenant, do
r 2 you 'lave any witnesses?
3 1,111. B?,R`dD : I don' t have any witnesses .
I would -- Is this the time --
4
i1.R. C AIRIA`d : Do you want to testify?
5
` R. BEREND: I don ' t want to , but I
6
will .
7 T,JALTER BER ND,
8 having been duly cautioned and sworn to testify the truth ,
9 the whole truth, and nothing but the truth, testified on
10 his oath as follows :
11 MR. BEUZEND: First of all , I ' d like
to stet together my little background speech I
12
wanted to give earlier .
13
I am '.falter Berend and I ' ve been with
14 the fire department about fifteen years . I ' ve
15 been a lieutenant approximately six years . During,
16 this time , I went to Midwestern . I have a degree
17 with a major in accounting. On my days off, I
18 am a- practicing, public accountant . I have a
bookkeeping, tax service that I started in 1975 .
19
My wife helps me in this job .
20
I am a .family man. I ' ve got a daughter
21 who is a freshman in high school -- college , rather .
22 I have two sons in, high school . One ' s a senior
23 and one ' s a sophomore and I have a pre-school
24 daughter -- after- thought . I spend my time , first
25 of all fifty-six hours a week with the fire
23
1 service . '.ahat that does is take me away from my
1 2 family every third day for twenty- four 'hours .
3 That' s day and night .
When I come home from that job , I
4
take up my business . `)hen these two don' t take
5
up my time , I have the raisin-, of the .family; all
6
the kids are active in sports in school and, of
7 course , we take part in all the parent-related
8 clubs .
9 I am active in the church . I ' ve
10 recently completed a three year term on the finance
committee . I am board -- a member of the board
11
of directors for the fireman ' s pension .fund. This
12
is my second term. I am a dues-paying union
13
member, although I haven' t been able to make a
14 meeting in three or four years because of my work
15 schedule . I belong to several ornanizations that.
16 I also cannot take part in because of my time .
17 Effective the 9th of November, Chief
18 Johnson assigned me as a -- and I 'm going; to
read this directly from his order "an overall
19
supervisor of Fire Station Number 2 , responsible
20
for the smooth and effective running, of that
21 station., with its assigned facilities , equipment
22 and Men " This takes additional time . There is
23 no additional nay for me .
Shortly after that , I was assigned to
24
also become an instructor in this First Aid class.
25
24
1. Originally, they had asked for volunteers . I had
2 told District Chief Marshall , who was transferred
3 since then that I couldn ' t because of my time
4 schedule . I was asked again by acting Battalion
Chief Marshall -- Keller, rather . I again told
5
him that my time schedule sjould not allow me off-
6
duty time . IIe , at that point , told me that down
7 the line there would come a time when we would
8 probably be appointed; at which time , I told him
9 that I would handle that as best I could when the
10 time came .
"low, in between, I was appointed to
11
take the course . On two separate shifts , I did
12
take the class . This was times I was on duty .
13
One was an eight hour class in which it was
14 nec >ssary for me to take one of my units out of
15 service to attend. Anot'.-i`-r day, which was the
16 l3th , I spent five hours up there . There again,
17 our unit was pulled completely out of our run .
18 I did not refuse to become an instructor . The
only refusal I had was coming, to that particular
19
day of class because I had other business commit-
20
ments set up . Some of them set up as far back
21 as a month .
22 I could not be more specific with
23 Chief Howard on my reasons because he and I are
24 competitors in our off-duty time -- friendly , but
25 we arL, competitors .
25
1 Next , I would like to state and I was
2 getting at this with Chief Johnson , t'_zat this
3 course is a standard or. basic First Aid course .
It' s not one you use to train fire fighters , al-
4
though it could be used to sharpen -- not sharpen ,
5
but to remind us of some of the things we had
6
learned in our advanced First Aid course . It
7 only takes seven or eight hours of instructions
8 to become an instructor in this class .
9 Now, Leroy said that the time schedule
10 to be an advanced. First Aid instructor was twenty-
four to forty hours -- I 'm sorry -- to take the
11
training for an advanced First Aider.. . It does
12
not say how many hours it would take to be an
13
instructor for advanced First Aid and that' s the
14 level at which all fire fighters are trained, the
15 advanced level and not the seven and a half hour
16 basic standard course .
17 Another objective that I had to this
particular course was that t'iis Red Cross Manual
18
is not the same material we use for our promotional
19
exams . 'de use -- we call it a red book . That' s
20
where the questions for our promotional exam came
21 from. There are quite a few differences in the
22 two , in definitions and procedures and methods
23 of doing things . Two types of Red Cross training.
24 I did cite Article 6 . 3, Paragrap?1 24
r of the Fire Department Rules and Regulations ,
25
26
1 because I do believe that that thing is misused.
t 2 That it is meant to be emergency situations , not
3 just any whim. You know, the leaves could start
4 falling from the trees and need extra firemen
to come in and sweep the sidewalks . You could
5
just as easily be called in and if you don ' t show
6
up , you get time off . I thin'., this First Aid
7
course that was being taught here is not fire
8 denartment related and therefore , should not be
9 basis For my being; suspended.
10 It was originally set un to be a
11 voluntary training program and I thin!-, that' s the
way it should be left . If you didn' t volunteer ,
12
you didn' t 'nave to participate .
13
Jow, if it were an advanced First
14 Aid instructor' s course , I could see that there
15 is definitely reason for me to be trained in that
16 field. I also feel that there was a little bit
17 of discrimination going on in this particular
18 case , as there were two other individuals that did
not show for this certification . They neither
19
were given time off.
20
There was a special allowance made
21 for Lieutenant Long , who also has a business .
22 He had an employee quit the previous day and could
23 not be at the session . He called and said so .
24 They allowed him to come in for his demonstration
25 and then leave . fle informed me that he was back
27
1 at his store by 1 : 30 . I wasn ' t offered this ontio
! 2 and I think th-, Civil Service Corimission -- the
3 Civil Service Laws require that all of the civil
4 servants he given the same treatment . I think,
in this case , I was not given the same treatment
5
as the others . I don ' t like to pursue this point
6
because to me, it rounds liko my kids -- ''he got
7 candy and I didn ' t , why didn' t I get mine . " I ' d
8 rather not, but that is what Civil Service Law
9 states , that all. would be treated equally .
10 I would like to give you my time
11 schedule for that particular day, the 4th and the
18th . Of course , this is just my word.
12
I began my day that: morning, that
13
particular morning, at 0700 , which is 7 : 00 o ' clocl
14 in the morning. I worked three hours on a daily
15 report for an express assent here in town . This is
16 a job that I had contracted for approximately
17 one month before . The owner of this business was
18
going, -- was already out-of-town on that particu-
lar day . This is a daily report . Takes three to
19
four hours .
20
At 1 : 30 that afternoon , I had an
21 appointment with a client who owns a car lot . He
22 spends four days out of the week out-of-town .
23 This is the only day that I could catch hire. At
24 2 : 30, I had an appointment with another client
25 with a small machine shop . He ' s a new client
28
1 with me rind also a new business . His time
2 schedule is not regular . I needed to go over with
3 him financial statements .
4 At 6 : 00 o ' clock in the evening, I
had the report of the same express agent to do for
5
that particular day . Again , a three and a half
6 to four hour job .
7 I had a time period between 10 : 15 and
8 1 : 30 which could have possibly been used to go to
9 this class , if offered that ; except, that in this
10 time , I baby-sat my two-year-old daughter . My
wife had scheduled volunteer work at our school .
11
I could have hired someone to take care of her,
12
but , at this time , also , I made two bank deposits
13
for clients . I had an appointment with an in-
14 vestment firm for another client . I ate lunch .
15 I dropped the daily report from the previous day
16 to the express agent off and checked two mail
17 boxes for my clients . In between times , my
18 daughter_ and I fed the ducks at Lucy Park .
I think you can see that my time is
19
pretty well set up on my days off . I don ' t have
20
time for additional work. I realize First Aid is
21 very important .for the fire department and the
22 fire department personnel , but also , I think the
23 level of training of that fire department First
24 Aid needs to be kept in mind.
f 25 In closing , I ' d like to read part of
29
1 our Fireman ' s Creed. "As a fireman"-- and I
2 consider myself_ a fireman twenty- four hours and
f
3 not a fireman forty-eight hours -- "my primary
4 duty :Is to protect and save lives of my fellow
citizens . To protect and save their property
5
and to render any assistance that might help my
6
.fellowman . In .fulfillment of my duties , I must ,
7 if necessary , be willing to sacrifice my life for
8 others . " I made that . I swore to that when I
9 first came on and I still fill that way, but I
10 still fill like I have some personal life and I
11 think I should be allowed my personal time and
to do with it as I want, extent in emergency
12
situations ; and then , Chief Johnson has every
13 right in the world to call me in and I will come
14 and I have in the past and I will in the future .
15 That ' s all I have .
16 MR. CHAIRMAN : Do you have any
17 questions , Mr. Morrison?
18 MR. MORRISOTN : I don' t have any
questions of the lieutenant .
19
MR.. 13ARCIA: I need to know what the
20 names of the other individuals who did not sizow
21 up for the certification session are .
22 -MR. I31;-UN1): Lieutenant Bill Carter.
23 Fire Fighter Speedy Dickerson . I don ' t know what
24 his first name is .
25 MR. GARCIA: And �,7ho was the other
30
1 member t;Iat was offered t!ie option?
t
2 11R. 8?1 EEND: Lieutenant Long .
3 MR. CARCIA: Okay. That ' s all .
4 MR. MORRISO J : Do you have anything
5 else that you wish to present?
11R. BAR; M : No .
6
'1R. "1ORRISWI : Okay. I ' d like to
7
recall Fire Equimment Operator Chaddick to the
8 stand.
9 DIR,CT E`;AMINATION
10 BY 11R_. 1ORRISOA :
11 Q. Officer M.addick, you have been here before and
have been 12 previously sworn in in this cause , have you not?
A. Right.
13
Q . I beli_`ve one of Li'le Commissioners has voiced a
14 concern about the other people at the meeting. ,lould you
15 state -- well , were there sixteen neonle that went through
16 the training of Red Cross to stet certified so that they
17 could attend this instructor' s session?
18 A. Ris?;zt . The prerequisite before you become a
19 multi-media in personal First Aid Instructor is that you
either go throuh that particular course or take the ad-
CD20
vanced First Aid course and to up-date their first Aid
21 card -- Advanced First Aid card, they went through what the
22 Red Cross calls a refresher course of twelve hours . So ,
23 they were -- they had t'-iei_r advanced First Aid card, and
24 that qualified them. to attend the instructor' s class on
25 :November the 18th .
31
1 Q. Okay . Sixteen people were trained?
2 A. Right .
3 Q. One of those failed to complete his training
4 fully in time to take this course , right?
5 A. Right .
Q. And that' s Lieutenant Carter?
6
A. (Witness nods head up and down . )
So there ' s fifte
en een people left?
8 A. (Witness nods head up and doN,m . )
9 Q. Another one , he said, was Dickerson . Do you know
10 what Dickerson ' s real name is?
11 A. Nobel Dickerson.
12 Q. Fire Equipment Operator?
A. Fire .Fighter.
13
Q. Fire Fighter . Are you aware of why he didn ' t
14
come?
15 A. I wasn ' t able to contact him either at home or
16 because of other activities during my particular working
17 day, I didn ' t contact him while he was at the fire station .
18 Q. You -were responsible for contacting all fifteen
people ; is that correct?
19
A. Well , I attempted to contact all fifteen people --
20
Q. Okay .
21 A. -- but , because of my work schedule , because of
22 sick days , vacation days and the other off-duty days , the
23 people that I didn' t contact , I asked the District Chief to
24 contact for me .
25
Q. Okay. And between the two of you, you contacted
32
1 all of the people except for Fire Fighter Nobel Dickerson?
2 A. Ri?h t .
3 Q. 01as Mr . Dickerson ascrinted into this --
4 A. I bea your pardon?
Q. Was he one of the people that was picked or did
5
he volunteer?
6
A. No , :Nobel was a volunteer to become an instructor.
7 Q. Okay. So , he -- I believe he also talked about
8 Lieutenant Long, who he states or alleges was given special
9 privileges . Did you hear_ any discussion with Lieutenant
10 Long, Chief. Johnson or his battalion chief concerning
11 special privileges?
A. T1o , that was strictly between Lieutenant Long
12
and Mrs . Moser, the instructor- trainer .
13
Q. Okay. i1rs . Tloser, the instructor, and unrelated
14 to the fire department, was approached by Lieutenant Long
15 at the beginning. or prior to the beginnin¢ of the training
16 session to be an. instructor?
17 A. Fight. At the be of the class .
n.18 And 'he asked if he could be excused early?
A. That' s ri?ht .
19
Q. And the instructor allowed him to go to the course
20
and then allowed him to give the first teaching presenta-
21 tion?
22 A. Well , he didn ' t give the first presentation . It
23 was much later. The class was dismissed, actually, about
24 4 : 30 . Everyone was dismissed and he was actually allowed
to go home or whereever at about 9 : 30 , .I believe . Right
25
33
1 along in there somewhere .
2 Q. But , probably an hour and a half or two hours
3 before everyone else left?
4 A. Right .
5 Q. :And to your knowledge , the only person that he
asked permission of to leave early was the instructor?
6
A. Right . It was strictly her option to let him
7
go or not .
8 Q. Did Lieutenant Long certify in any different
9 manner as the rest of them?
10 A. No .
Q.11 To the best of your knowledge , would Lieutenant
12 B.erend have been afforded the same privileges if he had
requested diem from the instructor?
13
A. It would have strictly been between him and
14 Mrs . Moser.
15 Q. You don' t know what she would have done?
16 A. I 'm sure she would have objected if several
17 people had requested the sane thine .
18 Q. But, you don ' t really know what she would have
done?
19
A. No , I don' t.
20
Q. She did allow one person to go who came and
21 attended and asked for that nrivileae?
22 A. Right .
23 11R. JORRISON : Mr. Comiss ion er,
24 would you have any questions?
r 25 iMR. GARCIA: Yes , I do . You said
34
1 that Lieul errant Carter was c �rti Tied, even though
r 2 he failed to complete t'te course?
3 M1R. CHADDICK: -No , Lieutenant Carter
4
wasn ' t eligible to take the instructor' s class .
5 To become eligible , they had to take an advanced
6 First Aid test and he did very poorly on his test .
MR. GARCIA: Okay. So , that ' s the
7
reason for his leaving- early?
8 MR. CHADDICiI : No , Lieutenant Carter
9 wasn ' t there at all . Lieutenant LOnR is the one
10 that left early.
11 MR. GARCIA: Okay. I thought --
correct me if I 'm wrong -- but , I thought that
12
13 you said t`iat Carter failed to complete . `,lobel
�! Dickerson -- you were unable to contact hire; is
14
that correct?
15 '.'SIR. C1fADDICi�: Right .
16 P1R. GAr.CIA: How did Mr. Carter fail
17 to complete?
18 MR. CHADDICK: Lieutenant Carter
19 didn ' t pass the advanced First Aid.
I {TARCIA: Okay. Lieutenant Long,
20
then , left early, at 2 : 30?
21
MR. CHADDICK : Right .
22 MR. GARCIA: Ja he certified?
23 r1R. CHADDICK : Yes .
24 TAR. GARCIA : Did he take the exam
t 25 that you normally take to be certified?
35
1
MR. CHADDIC7 : There is no final
t 2 exam at the end of the class or anything . The
3 instructor certifies the participants by observing
4 their actions and their general knowledge by
5 their performance dur_inu the class .
6 1R. GARCIA: So , what you' re saying
7 is if Lieutenant Berend would hive been there
from 10 : 00 o ' clock to 1 : 00 o ' clock and had per-
formed well , he would have been able
to have been
9 certified? Is that correct?
10 MR, CHADDICK: That would be Mrs .
11 Moser' s decision.
12 MR. GARCIA: But , based on her deci-
13 sion , she allowed Lieutenant Long to go ahead and
be certified?
14
MR. CHADDICK : Right .
15
MR. GARCIA: Would it have been the
16 same thing or would everybody in the class , total
17 of sixteen or fourteen , or however_ many there
18 were there -- if everybody had decided to leave
19 at 2 : 30 based on Performance , she could have
20 gone ahead and certified everybody; is that
correct?
21
MR. CiIADDICK: It would have been
22 up to her. She could have .
23 MR. GAI:CIA : Okay . But , Lieutenant
24 Berend over here could have come to Mrs . Moser
r 25 and said I 'm going to come in from such and such
36
1 t time and that could have been all ri ht with the
2 fire department ; is that correct?
3 `1R. CHADDICK : It would have been
4 fine with us if it met Mrs . Moser' s requirements .
5 CROSS EXAMINATIO-N
BY MR. BEREA:
Q.7 I ' d like. to Present a question . das Lieutenant
Carter ever been a First Aid instructor prior to this?
8 A. I had been told he had been . That ' s what he
9 told me .
10 Q- For a number of years?
11 A. A number of years .
12 1 And the only reason he wasn ' t eligible was
because he failed his test?
13
A. Right. He didn ' t have a current First Aid card,
14
and to get that First Aid card, he had to pass that test.
15 Q. And who graded this test?
16 �. It was my decision as to what his score was .
17 Q Who graded the tests?
18 A. I did.
19 Q. Did the Participants not grade their own tests
at the end of the exam?
20
A. They examined each other' s questions and I took
21 the tests and re-examined them. The idea is to review the
22 class by looking at each other' s test questions .
23 Q. But , did they go over their own exam papers to
24 begin with before you looked at it?
25 A. Yes .
37
1 Q. And did you discuss those correct answers with
2 them before you tool: their paper and graded it?
3 A. Right.
4 Q. Did you use a point system in grading?
5 ��MR. ORRISON : Mr. Chairman , if I
could interrupt for just a minute . I fail to
6
,see why -- the reason why Lieutenant Carter was
7
not there is irrelevant . It was the opinion of
8 someone that he was not eligible for a prerequi-
9 site for the course and could not be certified
10 even if he attended and the reasons why are
11
irrelevant as to why Lieutenant Ber_end3 refused
to appear at that same instructor ' s session .
12
R. BERE'VD: The same test -- I had
13
a number of blank answers . I had a number of
14 incomplete answers . I think that if that test
15
was graded on a point system, then my test would
16 not have passed.
17 MR. MORRIS0,1 : Is Lieutenanit Berend
18 su-nestina that he specifically and rationally
19 chose to attempt to fail the test?
MR. BERE_1D: No , I didn ' t say that .
20
I think you are adding something to it.
21 P1R. CHAIRMAN : How much further do
22 you plan to pursue this , Lieutenant?
23 MR. BEREND: You mean after today ,
24 or --
25 MR. CHAIRMAN : No , I mean about
38
1 .Lieutenant Carter .
Are you about throu,-�j wit_7
2 the Lieutenant Carter aspect?
3 MR. BEREND : Yes , as far as question-
4 in,(-,- is concerned.
5
MR. CH-NIRMAN : Do you have any
further questions?
6
r2R. T3LP, D : No , I don ' t .
7
NR. GARCIA: There was some dis-
8 agreement on the date . Would you again state
9 what day was it that you notified Lieutenant
10 Berend that he should take that test or he should
11 come to that class?
NIR. CHADDICK
12 : I contend that it was
Wednesday the 10th .
13
''iR. GARCIA: And according to Mr.
14 Ho�,vard, that was on a Friday ; is that correct?
15 MR. CHADDICK : Friday the 13th is
16 what Lieutenant Berend said.
17 R. GARCIA: Okay. No questions .
18 MR. CHAIR�Ik,.4 : I guess that ' s all .
Thank you.
19
20 MR. MORRISON : I have nothing further
to present .
21
MR. CHAIR,7AN : We want to take a
22 short recess for a couple of minutes .
23 (At which time , a short recess was
taken , after which , the following
24 proceedings were had. )
25 MR. CHAIMAN : The Civil Service
I
--- 39
1 Commission decision Tjill be in favor of Lieutenant
2 Berend and the disciplinary suspension will be
3 set aside and he will be reinstated with pay for
4 the times suspended .
5 The general reasons for the Commission ' s
6 result center on our difficulty with Article
6 . 3, Paragraph 24. We think , at the most , the
7
most that can be said for it is that it ' s am-
8 biguous and obviously the second sentence is
9 such a short paragraph it should be connected with
10 the first sentence and the second sentence would
11 not form the basis for the type of request that
12 was made in this case .
13
And there Gras also some discrepancy be-
tween the specification of the charge as stated
14
and the time that it actually took place . The
15 Commission felt there was some question there and
16 then the third aspect was some serious question
17 that the Commission had on whether this type of
18 train inn would -- that was going on and requested
19 for Lieutenant Berend to report , would be the type
20 of training that would be the level of training
that he could be required to attend, since it
21
was not the training for the fire department .
22 Is them anything else that the Commission
23 needs to say? Did I correctly summarize our
24 feelings about the matter?
f 25 MR. GATZCIA: Yes .
40
1 MR. CHAIP,IIA: Is there anything
C > 2 anybody else has to say?
3 MR. r1OR-RISO'_'i : Mr. Chairman , if you
4 would like , I ' ll prepare a brief summation of
5 those facts for the signature .of the Commission
members , if you would like .
6
7
MR. CHAIRITAN : We think possibly
this similar type problem may arise in the future
8 and we think you might want to consider that
9 Sub-paragraph 24 if these are going to be the
10 basis for required service . It seems to be rather
11 limited when read in context with the two
12 sentences . Thank you very much .
13 1R. DhREND : I ' d like to thank the
Commission for their time and understanding on
14
this .
15 11R. CHAIRIMAIN : Thank you.
16
17 (At which time the meeting was adjourned. )
18
19
20
21
22
23
24
25
41
1
t 2 STATE OF TEXAS
3 COUNTY OF 1r1IGNITA
4
I , Linda Compton , a Notary Public within and for
5
the State of Texas , do hereby certify that o
6 n the 15th day
of. December, 1.9g1 , at the Cit'✓ of ichita Falls , I reported
7
in shorthand the proceedings had at that time , and that
8 the above and foregoing is a full , true , correct , and
9 complete transcript of my shorthand notes so takezby me
10 at said time and place .
11
12
13 Linda Compton, "1ota y -'mac
for the State of Texas
14
My Commission Expires : 1-6-85
15
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25