Bakke Cross Examines Long Part 5

November 4, 2010

Defense attorney Randy Bakke continued his cross examination of Jim Long. 

Bakke:  Jodi Bjornson told you Cynthia Feland of the States Attorney's Office would contact you.  Did you go to law enforcement to report violations of the law?
Long:  No, I left it to the lawyers.
Bakke:  The first time you talked with Feland wasn't until the Blunt trial, December 7th.  You didn't do anything to follow up with Miss Feland?
Long:  No, I waited for the phone to ring.
Bakke:  Did you send the 30 page manifesto to Feland?
Long:  No, I think my attorney Tom did that.

Bakke turned the discussion to the after hours search of Mark Armstrong's office. 

Bakke:  There was a meeting between you, Kay, and Billie the same day discussing that possible search.  Do you recall?
Long:  I do recall that.
Bakke:  Did you discuss the three of you would meet to search Armstrong's office?
Long:  No.
Bakke:  Did you have a discussion you were going to be there?
Long:  I don't recall.
Bakke:  Do you deny that?
Long:  I remember a vague discussion.
Bakke:  So it was dumb luck that you showed up and went into WSI that night?
Long:  No, it was something I typically did after I would finish teaching at Rasmussen College.  I would go in to get ready for the next day.
Bakke:  Typically would you go through Armstrong's desk?
Long:  No.
Bakke:  Was it your testimony it wasn't planned in advance that you would participate in a search?
Long:  No.
Bakke:  Do you remember Kay wanted to look for open records?
Long:  I don't recall.
Bakke:  Did you have any authority to search Armstrong's desk?
Long:  As facilities manager I could have.  Things like safety, risk, fire.
Bakke:  Did you go into Armstrong's office?
Long:  Kay called me in.
Bakke:  You agree you didn't go in for a safety risk?
Long:  True.
Bakke:  Regarding the internal auditor, you said she had unfettered access.  Aren't her responsibilities in the WSI handbook?
Long:  Yes, but she had ethical guidelines as well.
Bakke:  You compared Kay to a TSA agent at the airport?
Long:  Yes.
Bakke:  Could she detain someone?
Long:  No.
Bakke:  You think it's in the internal audit charter that she had authority to go into the dark of night snooping with a flashlight?
Long:  Those are tough words, but the internal audit charter would give her that authority.
Bakke:  You said Kay had probable cause.
Long:  I said, evidently.
Bakke:  You understand probable cause is a criminal term.
Long:  I'm not a lawyer.
Bakke:  Mishandling open records requests, is that a crime?
Long:  It is a violation of the Freedom of Information Act, certainly.
Bakke:  Do you remember seeing Billie that night?
Long:  No, I don't.
Bakke:  Do you remember talking with Kay that she would go in after hours?
Long:  I'm not sure.

Bakke tried to establish that a search of Armstrong's office would cause morale problems within WSI.  Long said morale issues were not his primary concern, potential fraud was, and that rule one as a state employee is your desk is not personal, it's all state property.  Bakke asked whether it caused an uproar with other employees.  Long said about that time, "I was filing a whistleblower complaint.  This employee's morale was low."

Bakke:  After the search of the desk, you were interviewed by Mike Quinn, is that correct?
Long:  Correct.
Bakke:  Did you tell Quinn you were the one who obtained the journal?
Long:  I'm not sure.
Bakke:  You would deny you told him you were the one who obtained the journal?  Was it possible it was you and not Kay?
Long:  No, Kay found it.
Bakke:  Did you see things in the journal that might be crimes?
Long:  A Burleigh County Commissioner might be involved in a process to oust the States Attorney from office.  Yes.
Bakke:  There's nothing in the journal that he was using WSI to oust Riha.
Long:  It had alot to do with WSI time, paper.
Bakke:  You would assume it was WSI time.  Are you speculating?
Long:  Yes.
Bakke:  Isn't one method of ousting a recall campaign?
Long:  Sure.
Bakke:  You don't know if that's what Armstrong was thinking?

Attorney Tuntland spoke up in court and said that the journal would speak for itself and Bakke should provide a copy of the journal so that Long could read from it.  Bakke put pages from the journal on the screen so all could see.  The document said he began to gather 50 signatures to force Riha out as States Attorney. 

Bakke:  Doesn't that mean he was going to gather signatures?  Wondering also what the next step should be.
Long:  I was thinking Sandy and Steve Cates had been meeting with the media.
Bakke:  Answer the question.  Am I reading it correctly?
Long:  Yes, you read it correctly, but the word also makes me think of Steve Cates and other things.
Bakke:  You thought crimes had been committed regarding open records?
Long:  There was a smattering of it all over the place.

The journal read:  Game plan to flood info to public to counter full page ad in Tribune.  Prepare docs for me to get out.  Contact Scott Hannin about getting story national on Sean Hannity. 

Bakke:  Where does it say open records?
Long:  It doesn't, but it's inferred.

Some other excerpts of the journal were displayed:  advised of large open records request.  Got first positive editorial in print.  And then "Got the secret documents out.  Lengenfelder did the deed but ran into Dave Thomas in the press room."

Long:  That's what alarms me, secret documents.
Bakke:  My question, Blunt would not receive open record requests while on paid administrative leave.
Long:  Don't know what he got.   The secret documents statement validates what I did.  This hot potato is in my hand, I have to do something with it.
Bakke:  Your testimony was Blunt was getting records.
Long:  I was told by Forward, Wahlin, and Jodi that Mark was giving records to Blunt for free when everybody else had to pay.
Bakke:  The same way when you were on leave you got open records for free.
Long:  Oh no, I got a few, but when I talked to Mark about how many I needed they were going to charge me for open records and I could not afford it.  I could not afford health insurance.
Bakke:  You made an information request for a large volume of documents; pay information, how claims were handled? 
Long:  Yes.
Bakke:  Do you know whether Blunt made a similar request?
Long:  No.

Bakke then turned to Long's whistleblower complaint to Attorney General Stenehjem and issues raised in that complaint.

Bakke:  Mr. Blunt returned to WSI after his initial charges were dropped?
Long:  Yes.
Bakke:  After that, but before you were put on leave, did you have any conversation with Blunt regarding your employment situation?
Long:  Yes.
Bakke:  About the whistleblower memo?
Long:  No.  He stayed away from that.
Bakke:  You got no reaction?
Long:  I got a reaction.  He turned down the thermostat.
Bakke:  During that period, Blunt never took negative action against you, true?
Long:  Not true.

Bakke then turned to Long's deposition taken in this case where Long was asked did he take any negative action?  Long replied, no, nothing I would say was negative. 

Bakke:  Is it true Halvorson never talked with you about the whistleblower action?
Long:  I don't recall.

Bakke once again turned to Long's deposition.  It read, did Halvorson talk with you about it (whistleblower action)?  Answer, no.

Bakke:  You have no personal knowledge Blunt was involved in the decision to suspend you?
Long:  He signed the letter.  He was the boss.

Bakke turned the questioning to the search warrant issued at 5:15 p.m. October 19th.

Bakke:  You said the reason they couldn't let them in was because it was after hours?
Long:  No.  Someone was manning the desk.  They should have let them in.
Bakke:  Sue Mertz had concerns about letting people in after hours.
Long: I don't know.
Bakke:  Regarding the issues in your whistleblower complaint and misuse of funds with Dave Spencer getting sick leave, that event was August-September 2006, over one year before you filed the whistleblower complaint.  You had not reported that to law enforcement before Attorney General Stenehjem.
Long:  Yes.
Bakke:  By the time you were reporting, it was old news.
Long:  It wasn't so old that I wasn't called in by Quinn to talk about it.
Bakke:  Was it in the state auditors report 2006?
Long:  They talked about it, yes.
Bakke:  You were present with the state auditors when they asked Blunt about Spencer's sick leave?
Long:  I don't remember that meeting, but I was at a meeting where they asked where Dave was.

Bakke then presented a document which showed it had been determined Spencer was not obligated to reimburse 50% of his moving expenses.  Bakke asked Long about his delay of reporting the Spencer sick leave issue. 

Bakke:   You personally attended meetings 12 to 20 times with the state auditors office, and that took place over a period of 6 to 9 months?
Long:  Longer.
Bakke:  Never once did you say Spencer's sick leave pay was irregular?
Long:  I had to exhaust my chain of command.
Bakke:  You never went to the board regarding Spencer's sick leave.  No one besides Blunt.
Long:  Not true.
Bakke:  Who else?
Long:  Jodi Bjornson.
Bakke:  Who else?
Long:  Who else would I go to, she's the attorney.

Bakke turned the questioning to the issue of the 4% pay raise.

Bakke:  That was also raised by the state auditors.
Long:  Yes.
Bakke:  That issue was presented to the attorney general's office as to whether that would apply to WSI.  It did apply.
Long:  Yes.
Bakke:  Blunt didn't like it, but did follow the attorney general's recommendations.
Long:  Not initially.  The actual opinion wasn't followed.
Bakke:  But eventually it was.
Long:  Yes.
Bakke:  Was that policy followed well before your whistleblower complaint?
Long:  Yes.

Bakke then went into the issue of nepotism.

Bakke:  That issue had been addressed following the time Halvorson was appointed as CEO.
Long:  It was not addressed.
Bakke:  They found that he could be there temporarily.  It didn't turn out to be permanent.
Long:  It was still a violation.  I thought it was a concern.

Bakke then established the issue had been addressed by the WSI board of directors.  He showed board meeting minutes on the date of the initial charges against Sandy Blunt, the same day Halvorson was selected by the board as the CEO. 

Bakke:  Two days later you complained to board chair Indvik of a violation of the nepotism law.  You said the issue was allowed to fester and never addressed.  Let's look at what really happened.

Bakke produced a memo from Tim Wahlin to the WSI board, Halvorson, and Bjornson saying, I believe this situation meets the urgent agency needs exception. 

Long:  That's what he wrote in his opinion.

It was discussed that Long had spoken with chairman Indvik questioning whether Halvorson should be supervising his wife and brother in law and that Wahlin described in his research that this was not in violation because those employees had been grandfathered in.

Bakke:  The issue did not fester.  Within five days of your complaint there was research and a determination.
Long:  Wahlin is in Halvorson's pocket.  There was a provision that he should not supervise his own family.
Bakke:  Was that issue of nepotism highly publicized?
Long:  I don't know.

Bakke turned to Long's deposition which said on the nepotism issue that was a highly publicized event?  Long replied, yes.

Bakke:  You agree state law says Halvorson could be CEO temporarily?
Long:  I remember temporarily and also he was to supervise relatives indirectly.  Direct supervision, no.

Bakke turns to the Armstrong journal once again.  Long talked about a conspiracy Armstrong had to oust Richard Riha, "using his position as Burleigh County Commissioner to assist Steve Cates of the Dakota Beacon in ousting Riha." 

Bakke:  Your concern was he was trying to get 50 signatures?
Long:  Yes.

Next onto again the topic of open records.

Bakke:  Do you have personal knowledge that Blunt received documents for free?
Long:  No.

Bakke produced a document sent from Long's attorney to Assistant States Attorney Feland. 

Bakke:  When this document went to Feland, you didn't ask her to investigate?
Long:  That was the purpose, to start an investigation.
Bakke:  Didn't you say, "It's like spaghetti, throw it against the wall and see if it sticks"?
Long:  Oh no. 

Bakke turned again to Long's deposition where it said, it's like spaghetti, you throw it against the wall and see if it sticks.

Long:  That was Quinn.  You asked about Feland.
Bakke:  No.  It was the States Attorney's office.

At this point, Long's attorney Tom Tuntland said, no, read it in full context, that meeting was about Quinn.  Tuntland did establish that Long was correct.  The statement was made to Quinn. 

Bakke:  But the reason you are submitting accusations is you are throwing them out there to see if it sticks?
Long:  No.  These are good faith allegations.  I'm not a lawyer.  I don't know what will stick in a court of law.

Next onto the Chamber of Commerce meeting.

Bakke:  This meeting was not for the purpose of an election.
Long:  It might have been.  They needed cheat sheets for candidates who were getting questions from people at grocery stores.
Bakke:  Who's running for political office in December of '06?
Long:  I had no idea when people start running.
Bakke:  They were looking for quick facts.
Long:  Yes.
Bakke:  For Strevak to ask for quick facts was not illegal?
Long:  Using public property for political gain, Jodi said, is illegal.
Bakke:  You didn't report the Chamber of Commerce meeting to law enforcement until your whistleblower complaint?
Long:  I reported it to my general counsel.

Bakke turned the questioning to the Fair Labor and Standards Act and Blunt wanted exempt employees to fill out timesheets to keep track of their time.  Long testified that time could be monitored but he would not recommend it because the EEOC said it's illegal.  Bakke then questioned Long about Angela Scherbenske, procurement officer. 

Bakke:  Were you asked if Scherbenske alerted you to any unethical activity?
Long:  I don't know.

Bakke then produced an email from Blunt to Long, February 1, 2006, where Blunt asked each executive whether Scherbenske alerted you to allegations regarding unethical procurement practice?  Long's response, in writing, was that he was never alerted to any unethical activities.  Bakke then established that many of the expenditures on promotional items in question were policies that had been in place for years before Blunt became CEO.  Long said, yes, that was the status quo but it still had to change. 

Bakke then turned to Long's testimony at Blunt's criminal trial.  The transcripts showed Long went to Blunt early in his tenure at WSI about procurement issues "as trivial as a jar of pickles, goldfish crackers, typically food"  but he was looking at the letter of the law.  Bakke established that one year later Long sent an email all the procurement items he was aware of could be posted in the newspaper. 

Bakke:  You testified your role was big in convicting Sandy Blunt.
Long:  No.  I don't know what the jury discussed.
Bakke:  Do you recall your affidavit in this case?  "I believe my testimony was important and played a significant part in Sandy's conviction."
Long:  And it goes on to say no one knows what the jury considered.

Bakke produced an email sent from Long to Rep. Frank Wald.  It was a summary of questions regarding proposed expenses including gift certificates, drinking water, and the strategic and planning retreat.  Bakke established that those practices had been in place over 6 years, well before Blunt was hired. 

Bakke:  Ever tell Wald you thought these expenses were improper?
Long:  No.

Bakke showed an email, 04-04-07, from Long to Blunt and legislators.  Bakke asked whether this was appropriate to submit to a senator.  Long said he had questions because Blunt wanted special elements carved out to authorize WSI to use in a slush fund.  Bakke produced another email sent to a legislator about procurement items such as pickles and established that Long had not indicated there was anything improper with these items. 

Bakke:  These were the same expenses you testified under oath at trial that had a significant role in Blunt's criminal conviction, weren't they?
Long:  These were not all the promotional expenses Mr. Bakke.
Bakke:  You never thought there was anything improper about these expenses until you thought it was advantageous to yourself?
Long:  Not true.
Bakke:  Do you have a document you were fired because you filed a whistleblower complaint?
Long:  No.
Bakke:  Do you have an email that says you were fired because you filed a whistleblower complaint?
Long:  No.
Bakke:  Did a board member tell you you were fired because you filed a whistleblower complaint?
Long:  Ed Grossbauer said that's what it looked like to him.

Bakke turned the questioning next into whether Long had ever handled claims at WSI and established that Long had never handled claims and had never decided whether to pay or deny claims and that Long had never had a job approving claims. 

Next was an exchange about WSI investigator Tim Wahlin's refusal to delay an investigative meeting with Long for one day so Long's attorney Tuntland could be present.  Bakke then asked Long:  you say you were never told why you were suspended.  Long:  it took 75 days to get part of an answer with whatever they could conjure up.  Bakke then produced an email from Wahlin to attorney Tuntland asking for information on violations and stating that without Long's full cooperation, Wahlin could not complete his investigation. 

Long:  What I read in that letter to my lawyer was that they were actively investigating me.  I absolutely said where they could get that information from.  If Cynthia Feland would not give it to them, it would be inappropriate of me to give them something the States Attorney would not.
Bakke:  You can't do an investigation if you won't give information that supports the allegations, true?
Long:  Untrue.  They could get it from other people. 
Bakke:  During this time period you're on suspension, you're talking to the press.
Long:  True.  I have first amendment rights.
Bakke:  You can offer confidential information to the press?
Long:  This was an issue of grave concern for North Dakota.
Bakke:  You're still employed by WSI and offering opinions to the press?
Long:  I was concerned about how injured workers were being treated.
Bakke:  This was not an area you worked in at WSI.
Long:  I knew the person who handled the claims.
Bakke:  You were reporting to the Tribune while you were still employed at WSI that the entire board should resign.
Long:  Yes, even me, if necessary.  I said that WSI should have a fresh start.
Bakke:  You went on Joel Heitkamp's show to air your views.
Long:  I did.
Bakke:  You were still employed at WSI.
Long:  I was.

Bakke then proceeded to play the audio of the Joel Heitkamp interview.  Long was heard saying he felt he was not getting protection from the Attorney General's office regarding his whistleblower complaint because the Attorney General had a conflict of interest and the Attorney General is the attorney for the Attorney General.  He described the Chamber of Commerce meeting just as he had to the jury.  Heitkamp commented that WSI knew they were crossing the ethical line.  Long replied that they knew what they were doing in that smoke filled room.  Long accused the WSI bureaucracy of figuring out how to deny injured workers' claims.

Bakke:  It's your testimony you wanted your job back at WSI?
Long:  Sure, I wanted it.
Bakke:  Regarding the Chamber of Commerce meeting, not once did you mention elections on the radio show.
Long:  Not that I recall.
Bakke:  Did Halvorson consider your comments as insubordination?
Long:  I can't comment on how he felt.
Bakke:  Your comments about injured workers, you weren't involved in a single workers claim.
Long:  I saw the aggregate results.
Bakke:  You indicated if you did come back you thought there would be a dog fight.
Long:  I assumed there would be some nasty things.

Bakke then established that Long ran for the legislature in 2008 as a democrat.  Bakke also established that when Long was suspended WSI could have terminated Long although Long said that could have been against the law.  Bakke countered, WSI could have fired him for claims other than his request for whistleblower protection. 

Bakke:  One of your complaints was when the board considered your appeal they had no time to review your appeal packet, but didn't you send it by email and regular mail?
Long:  I don't recall.

Bakke produced an email with an attachment sent by Long addressed to board members.

Bakke:  Wasn't there an email?
Long:  Yeah.  I don't know if they couldn't open it and I'm not sure that was the appeal packet.
Bakke:  Let's read the email.  "In addition, I will send the appeal packet to you by hard copy."

Bakke pointed out the attachment was labeled "Jim Long appeal packet" and was a 1456K attachment.

Long:  Yeah.  1.4 meg.
Bakke:  1456K.
Long:  Yeah.  1.4 meg.  I'm not sure what that is.  I can tell you a couple of pages could be 1.4 meg.

Long said the hard copy was walked over to WSI's office and was to be distributed to each of the board members.  Why it took a month, he didn't know. 

Bakke then went into specifics as to the amount of damages Long could claim and went into details as to the amount of income he had been making after he left WSI, which was significantly less than what he was making at WSI.

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