note: in editing the following two stories from 2010, Blogger brought them to the top of this blog. My regrets. Please read past these two stories for the media reform archive.
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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