November 9, 2010
Long's attorney, Tom Tuntland, questioned WSI's Chief of Injury Services Tim Wahlin. Wahlin was staff counsel in the legal department when he worked with Long. Wahlin had investigated a complaint by Tim Hutchings and Sonja Nallie that Long had tape recorded their pre-investigation notifications regarding a sexual harassment complaint. They were the only two who were recorded and they were the only two African-Americans at WSI. Wahlin said WSI had tried to go externally to The Village for investigators but they were understaffed so Wahlin was assigned to the investigation. Either Bjornson or Halvorson had assigned him to investigate and he reported to them. He had not found evidence of racial discrimination in Long's actions. Wahlin said that Hutchings had a volatile personality and that Long explained that he recorded him because he was concerned based on prior experience with Hutchings and thought that something might be said that would be denied later. Wahlin acknowledged that one party tape recording is legal in the state of North Dakota.
Wahlin witnessed a meeting on August 31, 2007 between Halvorson and Long where Halvorson was upset about the recording and that Jim's explanation as to why he had recorded was consistent with what he had been told. Long stated at that time that he was being retaliated against and said at that point he had whistleblower protection. Halvorson told Long there was a process to file a grievance and told him there would be no more tape recording and Long acknowledged that he would not.
Wahlin said he'd been on a hunting trip by Fort Rice when he got a call from Rob Forward that a search warrant had been executed for Armstrong's office. This was about the time charges against Blunt were dropped and Blunt returned to WSI. Wahlin was aware that Long filed a request for whistleblower protection, but did not know that Long had talked with Quinn at BCI before the search warrant was executed. Wahlin said that Long had filed for protection on August 31, 2007. Tuntland corrected him and said, no that was a different kind of whistleblower protection. Wahlin replied that was when he told us he had whistleblower protection, but there was a couple of different types he had I think.
Tuntlant established that Wahlin had been asked to follow up on statements Long had sent in his complaint to Attorney General Stenehjem. This was close to October 30, 2007 and it was in reference to a meeting Long and Tuntland were having with BCI's Quinn. Wahlin said either Bjornson or Halvorson had asked him to do that follow up. He further established that in the memo sent to Stenehjem, Long addressed what he thought was Blunt and Halvorson giving improper access to Spencer of protected information from WSI and that Wahlin later put out a report on it addressed to Blunt and Halvorson. Wahlin acknowledged that a possible suspect had assigned his own investigator and that the investigator reported back to the possible suspects. Wahlin said at the time the request came in they tried to move the investigation outside the agency and that Rob Forward had contacted BCI, but was told by Quinn to go ahead with our own investigation. Wahlin said he was informed that Long and Tuntland were to meet with Quinn (law enforcement).
Tuntland established that Wahlin was trained as an attorney, but had no training in retrieving computer data. It was established that Long told Wahlin about Halvorson and Blunt getting data from Spencer's computer to give to Spencer and that Long had told him that a meta-data backup was available. Wahlin said he was aware of that but did not know how that data was stored and he did not ask Long how it might be.
Tuntland then referred to an email from Wahlin to Tuntland saying that Long had made allegations regarding the sharing of computer data that aided Spencer in making grant applications but he had not been able to confirm or deny those allegations. Wahlin said he had not gone into Spencer's computer nor had he been able to secure that computer.
Wahlin said he wanted to get documents from Long in reference to the violations that were too numerous to mention that was in the AG memo. Wahlin and Forward set up a meeting with Long about the matter. Long's attorney wished to be present but had a meeting in Fargo on that day. Wahlin and Forward refused to change the date of the meeting, but agreed they would tape record the meeting instead.
Tuntland: You sent me an email, we welcome your presence but request you don't participate, correct?
Tuntland: What good is a lawyer if the lawyer can't advise his client?
Wahlin: I don't know, but we told you you could be there.
Tuntland read from the email, "Unless Long is able to cooperate and provide information to support his allegations, I will conclude they are not valid."
Tuntland: What information were you expecting him to supply?
Wahlin: I have no idea.
Tuntland: You'd not checked out Spencer's computer at WSI?
Wahlin: It was gone. It had already gone to state surplus.
Tuntland: Did you ask for a backup?
Wahlin: Yes, but I was told that was essentially impossible.
Wahlin said that as Spencer had full access to full information at WSI, he could have easily accessed the information before he left the organization. Wahlin asked Spencer where he was getting data regarding grant writing. He said it came from vendors. He did not ask Spencer whether it was from WSI and confirmed had law enforcement been conducting the investigation they could have had a search warrant for Spencer, but he was not able to do so. During Wahlin's interview with Long he said that Halvorson participated in getting protected information to Spencer. Long said he had been told this by Blunt. Wahlin wrote in his report that whether Long believed this or not, these allegations are unreasonably made.
Tuntland: If I see something and I report it, it's unreasonable unless I'm the CEO?
Tuntland established that Long told Wahlin to ask Assistant States Attorney Cynthia Feland for a copy of the allegations he had given to her.
Tuntland: Anything wrong with Long letting law enforcement decide whether those allegations would be released?
Tuntland: Do you think Long should have given that information to WSI knowing that information could be used by WSI to establish a cover up?
Wahlin: Yes. To the extent an employee will not share information, I cannot determine the facts.
It was established that Wahlin's report was sent to Halvorson and Blunt and that Blunt had already returned to WSI as CEO.
Tuntland: You were giving the report to the person who was suspected of wrongdoing?
Wahlin: It was required.
Wahlin said he did not contact Feland to get the information because he was sure she would not have given it to him as BCI's Quinn told him it was an open investigation.
Tuntland established that Wahlin had emailed Long's notice of suspension to Long on November 15, 2007 after working hours to Long's email address at Rasmussen College. That Long had been at work at WSI that day, but Wahlin had not talked with him. Wahlin testified that Halvorson and Blunt directed him to send the suspension letter. He said that Halvorson was still in charge of the day to day operations, but Blunt had the ultimate veto as to Long's suspension. Tuntland noted that the suspension letter said that Long could not have any contact with vendors and Wahlin confirmed that Blunt had not had those same conditions when he was suspended. The letter also said WSI would implement a plan when Long would be reintegrated into the organization, but Wahlin confirmed that plan never got off the ground. Wahlin confirmed that Long asked why he was suspended but that he did not answer that question and that Long wanted to go back to work but was not afforded that opportunity.
Defense attorney Mitch Armstrong then cross-examined Wahlin. It was established that following Blunt's suspension, Jodi Bjornson was out of the building and Wahlin had assumed her responsibilities. He said that Long told him several reasons why Halvorson should not be the interim CEO and that Peltz said that Long should be the interim CEO, that they had concerns regarding nepotism. He said that the board assigned him to investigate the issue of nepotism. It was established that there are exceptions in North Dakota statute regarding nepotism. One was older employees could be grandfathered in. And the other was when a critical and urgent agency need arose. Wahlin believed that that cleared the way for Halvorson's appointment.
Regarding the tape recording of Hutchings and Nallie, Wahlin said that Halvorson believed that by taping the only two African-Americans in the agency, it created exposure and second he was upset that he didn't know the taping went on. He said that Halvorson was displeased by the lack of consistency and that Long had tape recorded only two people and not everyone. Wahlin said at this point Long notified them that he had whistleblower protection.
Armstrong: As a result of Halvorson's reprimand for taping, Long says he has whistleblower protection?
Armstrong: Is there anything illegal about Halvorson reprimanding Long for tape recording?
Armstrong: Long could be reprimanded for that?
Armstrong: Halvorson was not retaliating against Jim for being involved in the investigation?
Armstrong then asked questions about Jim Long and Billie Peltz. Wahlin said that they were inappropriately flirtatious, that it went on for in excess of a year. Armstrong established that Bjornson, Halvorson, and Wahlin had met with Special Assistant Attorney General Tag Anderson who was in charge of employment law. They discussed Long's possible termination before Long had made his request for whistleblower protection to the Attorney General and before Blunt was reinstated. Wahlin testified that Halvorson and Bjornson had concluded that Long needed to go. He said they met with Anderson because even though Long was an at will employee, at will is trumped by state laws that prohibits firing people for protected activities. For example, you can't fire someone for being a minority. He said Anderson advised Halvorson to put together documents regarding problems and timelines behind Long's termination.
Regarding the search of Armstrong's office, Wahlin recalled that happened late afternoon on a Friday and the following Monday Sandy Blunt returned to WSI. Shortly thereafter, he provided Wahlin with his recreated notes about Long and Peltz' alleged inappropriate relationship. Blunt asked him as staff attorney to put the side file somewhere safe because the last one disappeared. Wahlin understood that this would be an open record, that it was sent to Risk Management to become one of their files, and he knew there would be requests for that document so he talked to Peltz because she needed to know. When Peltz read Blunt's recollection that Long had said Peltz had approached him about having a sexual relationship, she said that little f-er. Wahlin didn't know if she was talking about Blunt or Long. She couldn't believe he said that. She was crying, she's married, she has kids, she's upset. Wahlin said it was obvious to him she was talking about Long.
Regarding Wahlin's report regarding the investigation of Long's whistleblower allegations, Wahlin remembered Halvorson and Bjornson had assigned him and that Rob Forward was assigned into looking into the search of Armstrong's office.
Armstrong established that Wahlin and Forward had contacted Quinn at BCI to make sure it was ok for them to investigate. They did not wish to run afoul of BCI's criminal investigation and invited Quinn to sit in on interviews if he chose. Quinn did not attend the investigation meeting.
Wahlin said the reason they didn't wait for Tuntland to be in town for their interview with Long was if alleged activity was really going on, it was important to move it forward. Wahlin said that Long's allegations were more than a year old and stale and that's why they wanted Jim to give them a hint as to the other violations that were too numerous to mention. He testified that Kay Grinsteinner had found no evidence that Spencer had been using illegal information.
Regarding the computer that was surplused, Wahlin testified that that happened while Long knew about it and was head of Information Technology when the information could have been retrieved.
Wahlin said they first became aware of Long's 26 page manifesto after his attorney had released it to the press. He testified that besides the memo to the Attorney General and the manifesto, he had not been provided with any other evidence of wrongdoing. He said that the allegations regarding Spencer first came up October 20, 2007. He testified that he found no merit to the accusation and therefore delivered the report to the CEO and the interim CEO. Had he found differently, the report would have gone to the board and would have to have gone to the Attorney General. Wahlin concluded that Long was raising the allegations to save his job.
Armstrong asked Wahlin how it had come about that he sent Long's suspension letter to Long's Rasmussen email address. Wahlin said Long's WSI email was shut down and so he called Long and asked him where he should send it to.
Wahlin said he sent Long an email saying we would treat him similarly to the way Blunt was treated. We provided him with information from his computer and documents at no charge, but when his requests got voluminous we said we would have to charge as there would be time for research, redaction, and copying. He said Blunt had not made similar requests.
Wahlin said he did respond to Long's request for reinstatement in a December 4, 2007 email stating that as of this date a plan for reassignment was not completed. Wahlin said that by January or February of 2008, he thought Long would either say let's make this work or he would try to destroy people and the organization. He said Long went tremendously worse.
After Long had gone to the press with his accusations, Halvorson brought together the executive team and asked whether there was any way they could work with Long. The executive team unanimously said, no way.
Wahlin said there were shreds of accurate information in what Long told the press, but they were surrounded by allegations.
Wahlin testified that as he could not get into Spencer's personal home or computer, he simply called Spencer and asked whether he had received the protected computer data. Spencer said he had not.
Wahlin said regarding Spencer's computer having been surplused, that's what happens when computers are worn out, they're sold to the public or junked. Wahlin's report stated that even if Spencer was employing the use of protected information, there was insufficient evidence from which the organization could draw conclusions as to how the information was acquired, and stated that he could have put it on a thumb drive while he was still at WSI.
Wahlin restated that he did not believe Cynthia Feland would turn over the manifesto or any other information to him, that they did get the manifesto through the press, but three years later WSI has never been supplied with any other information from the States Attorney.
Long's attorney Tuntland again questioned Wahlin regarding the meeting Halvorson and Bjornson and Wahlin had with Anderson at the Attorney General's office regarding termination of Long's employment. Tuntland established Long had filed his request for whistleblower protection with the Attorney General on October 20, 2007, whereas that meeting had occurred November 7, 2007.
Tuntland further established that Wahlin had gone through Long's computer even though he was not suspended for fraternization or insubordination and was not suspected of a crime. Blunt, on the other hand, was suspected of misappropriation of funds, but Wahlin did not go through Blunt's computer. Wahlin testified he was not assigned to that role with Blunt, he was with Long.
Tuntland asked Wahlin about the records retention law and established that generally records are kept in electronic form and can be located. Tuntland stated the shortest period of time those records would be kept was four years. Wahlin said no, only 14 days.
Wahlin said that Bjornson had told him of Long's reports of suspected wrongdoing at least one time. He said Bjornson and Long got along, that Bjornson was friendly, that Billie Peltz was particularly outgoing and liked to kid around alot.
Tuntland: Long was fired not for what he did but for what Billie did?
Wahlin: Your words, not mine.
Tuntland: Why was Jim suspended?
Wahlin: I have opinions. I was included in discussions with Halvorson and Blunt about his history and his ability to get along. I have opinions, but it was their decision.
Wahlin stated that Blunt gave him the reconstructed document the day he was reinstated or the day after. Tuntland asked how he knew there would be open records requests for that document. Wahlin said they did have a request for the records.
Tuntland: Was the request from a radio station or Steve Cates?
Wahlin: A radio station.
Tuntland: How did they know about it?
Wahlin: I don't know.
Tuntland: It was in a candy drawer and nobody knew about it?
Tuntland: But as soon as Blunt returned to work you knew there'd be a request?
Tuntland established that during a civil investigation an employer has the ability to compel an employee to give information under the threat of firing, but that information under the threat of firing is inadmissible in a criminal setting, so a criminal investigator would not want to be present when there is compelled statements.
Tuntland said the complaint to the Attorney General brought up materials found in the Armstrong journal and included a conspiracy to oust States Attorney Richard Riha. Wahlin testified he did not investigate that.
Tuntland: If you had a board of directors trying to derail a criminal investigation, would that cause concern?
Wahlin: Not sure.
Tuntland: Didn't "got secret documents out" cause you concern?
Wahlin: Not significant concern, no.
Tuntland: Did you have concerns about Armstrong's responses to open record requests?
Wahlin: Mark was not a good record keeper. Did I have concerns? Sure.
He said Armstrong's office was a disorganized mess and agreed that if Grinsteinner had to investigate Armstrong's office, she'd have to go through alot.
Tuntland: If you were to investigate Armstrong's office, where would you start?
Wahlin: With Mark. I always start with the subject, only with Jim I started with others, so that's not true.
Tuntland: You told the jury after a criminal investigation a police report is turned over to the suspect.
Tuntland: That's after a prosecution is called.
Mitch Armstrong then concluded his cross-examination saying that Long was an at will employee, but established his suspension letter stated Long's effectiveness had been compromised.
Tuntland had the last word confirming that Long informed the Attorney General in his whistleblower complaint that he thought his employment was coming to an end because of his whistleblowing activities.