Memorandum Date: May 26, 2015 To: Chief Deputy Jim Pugel Via: Direct From: Major Dave Jutilla, Metro Transit Police}. Re_ Findings Memorandum (Part B), RE: IIU 201 -244, Allegation And Supplemental Allegation, RE: IIU2015-108, Pertaining To Sergeant Lou Caballero This is a ?Part follow-on Findings Memorandum relating to this complaint. The scope of this memorandum is limited to Allegation #4 as outlined in the previous Findings Memorandum (or ?Part submitted to the Internal Investigations Unit on April 1, 2015). Also included in this memo is a supplemental allegation of retaliation and dishonesty to #4 that has come to light since Allegations #2 and #3 that were reviewed under the previous Findings Memorandum. ALLEGATIONS Allegation Rules of Conduct: GOM a. Making false or fraudulent reports or statements, committing acts of dishonesty, or inducing others to do so. i. Retaliation BACKGROUND The King County Sheriff?s Office provides contract transit police services to King County Metro Transit Police (MTP), with a total of 68 FTEs. serve as the Precinct Commander for MTP (Precinct which is where Sergeant Lou Caballero was assigned during the time frame of the alleged misconduct on November 14, 2015. Operator Kelvin Kirkpatrick works for King County Metro Transit as a bus driver on the graveyard shift. He is African American and has worked at Metro Transit as a bus driver since July 1995 when he began as a part-time bus driver. He was promoted to full-time bus driver in April 1998. Operator Kirkpatrick has been has been assigned to the Night Owl Service at Metro Transit for many years. He has frequent interaction with MTP deputies and supervisors. Transit personnel, including deputies working graveyard for Metro Transit, provide what is referred to as the ?Night Owl Service." Transit Chief Arnold Becker is the Night Chief of Central Base Operations and is the Administrative Supervisor of Operator Kirkpatrick. District Supervisors Kevin Friend and lrin Limargo are Kirkpatrick's ?Service Quality? Field Supervisors. Sergeant Caballero, Deputies Amy Shoblom and Jessy Bailey work graveyard at MTP and interact with the coach operators. Page 1 of 9 Operator Kirkpatrick reports that issues with Sergeant Caballero started in August 2014, when Caballero was assigned to MTP graveyard to replace Sergeant M. Starrett. Kirkpatrick felt Sergeant Caballero and his team was not providing appropriate security for the drivers by proactively checking their coaches during the Night Owl layovers in Downtown Seattle. Kirkpatrick shared these concerns with District Supervisor Harmony Hunter who agreed to talk with Sergeant Caballero. A few days later, Operator Kirkpatrick reported that Sergeant Caballero approached him and inquired about having problems with the way he runs his crew. When he shared his security concerns with Sergeant Caballero, Sergeant Caballero told him, . .the way I run my crew works for me, and I?m not going to change it. On September 28, 2014, Deputy Travis DeFries removed a subject from the bus being operated by Mr. Kirkpatrick in downtown Seattle. This subject was in violation of the Transit Code of Conduct. After the subject?s removal, there was a Use of Force incident outside of the bus involving Deputy Travis DeFries. Apparently, Deputy DeFries waved for Operator Kirkpatrick to drive away from the layover to prevent the violator from re-boarding the bus. On either November 6th or Sergeant Caballero confronted Operator Kirkpatrick about leaving Deputy DeFries at the scene without support and driving away from the scene. Sergeant Caballero inquired about a Security Incident Report (SIR) about the incident and directed Kirkpatrick to meet after this shift so that a recorded interview could be obtained. Operator Kirkpatrick waited at the Base for Sergeant Caballero but he did not show up. Sergeant Caballero stated during his interview that he forgot to meet Operator Kirkpatrick at the Base. This negative interaction led to Operator Kirkpatrick making a complaint via email on October 7, 2014 against Sergeant Lou Caballero. Mr. Kirkpatrick accused Sergeant Caballero of being ?unprofessional and condescending? towards him. (Attachment At the time of making the complaint, Mr. Kirkpatrick expressed his concern to Arnold Becker, Metro Transit Central Base Operations Chief that Sergeant Caballero would retaliate against him for filing the complaint. On November 12, 2014, Operator Kirkpatrick attended a Security Focus Group meeting to discuss processes and expectations of Transit Security. At the meeting, in a not-so-veiled negative reference to Sergeant Caballero?s squad, participants shared that one of the MTP squads was proactive and the other MTP squad was not proactive. On November 14, 2014 at approximately 0352 hours there was an interaction between Sergeant Lou Caballero and Operator Kelvin Kirkpatrick behind the Rapid Ride that is the nexus of this complaint investigation. Information contained in the following overview has been garnered from the KCSO IIU investigative follow?up. have also extrapolated information from transcribed interview statements, investigative documents, and in Metro?s investigation. Additionally, due to the scope of the complaint, I have included at the end of this document, an informational timeline of the sequence of events. ALLEGATION AND FINDINGS: Allejgatidnf#4. Rules of Conduct: a. Making false orfraudulent reports or statements, committing GOM acts of dishonesty, or inducing others to do so. i. Retaliation Page 2 of 9 OVERVIEW OF THE 11/14/14 EVENT On November 14, 2014 around 0352 (time approximate), there was an interaction between Sergeant Lou Caballero and Operator Kelvin Kirkpatrick behind the Rapid Ride coach driven by Kirkpatrick. Operator Kirkpatrick's issue at that time was that the deputies and supervisor had not checked his coach for sleepers to remove them (7 or 8 were documented to be present and sleeping or passed out). Sleepers are typically described as members of the homeless community that utilize Metro Transit at night as a means to stay off of the street. Some may pass-out on buses from general fatigue/alcohol/substance abuse, which may cause service disruptions to on-time performance. This in turn compromises the transit system for regular transit users and commuters. The goal of the Metro Transit Police is to safely remove sleepers from transit buses to improve safety, security and schedule performance for Metro. When Sergeant Caballero and the deputies were driving through the transit layover area, they were flagged down by District Supervisor Friend and Operator Kirkpatrick. Supervisor Friend did not stay with Kirkpatrick and Caballero for the conversation, he went to the front of the bus to check on how Supervisor Limargo was doing regarding a Bad Order (BIO) radio that Operator Kirkpatrick reported. The conversation behind the bus between Sergeant Caballero and Operator Kirkpatrick was fairly contentious. it was clear that Operator Kirkpatrick was frustrated that his coach was not checked by the deputies. Operator Kirkpatrick remained standing on the sidewalk while Sergeant Caballero moved his car that was parked on the street. After Operator Kirkpatrick and Sergeant Caballero finished their conversation, Supervisor Friend was contacted by Sergeant Caballero, who stated to Friend that, ?You need to write that Operator up. . District Supervisor Friend told Sergeant Caballero at he did not witness it. Male-latex at 0846 hou November 14, 2014, Sergeant Caballero sent a complaint via email of alleged misconduct to MTP Captain Marcus Williams accusing Operator Kirkpatrick of using profanity with him during the contentious conversation. Sergeant Caballero closed his email with the request that a formal complaint be filed with Metro Transit against Operator Kirkpatrick. =Excerpt from Caballero Email: Captain; I would like a call from you this afternoon regarding Operator Kirkpatrick and the way he yelled and used profanity towards me about an hour ago, Stating, ?You got three fucking deputies out here that don do nothing I attempted to report this to Service Quality Supervisor Friend and he told me that I had to report this believe his behavior was uncalled for and unprofessional. This type of dramatic interaction has been escalating for the last few weeks. I would like to make a formal complaint at this time. Please call me after 1400. (Emphasis added.) End of Email Excerpt After the incident, Sergeant Caballero requested that Deputy Shoblom write up a statement about what had taken place. Within an hour of then incident, Deputy Shoblom stated that she Page 3 of 9 wrote a witness statement document and in it she wrote, heard Kelvin yelling. He was saying got three fucking deputies out here that don?t do nothing. (Emphasis, added.) The complaint by Sergeant Caballero was immediately fonNarded by MTP Command staff to a Metro Base Chief to initiate a Misconduct Complaint Investigation against Operator Kirkpatrick. Based on the complaint, Metro Transit Chief Arnold Becker initiated a Misconduct Complaint against his operator for a major policy violation. KCSO IIU also immediately initiated its investigation. On November 18, 2014, Mr. Kirkpatrick provided a written statement regarding the November 14, 2014 interaction with Sergeant Caballero. In the statement, Mr. Kirkpatrick asserts he did not use profanity at or towards Sergeant Caballero during the confrontation. Mr. Kirkpatrick stated he told Sergeant Caballero, ?I?m expressing how frustrated I am at the fact that have three deputies out here that don?t do anything when I need help.? In the written statement, Mr. Kirkpatrick also states he recorded the exchange with the body camera he was wearing that night. Mr. Kirkpatrick closed his narrative by writing, "I?ve spent three days (SIM and Tuesday) stressed out about my work record and my credibility.? On January 27, 2015, Sergeant Caballero was questioned by IIU Sergeant Pat Raftis regarding the incident. Sergeant Caballero again asserted that Mr. Kirkpatrick stated; ?Quote: you got three fucking deputies out here that aren?t doing nothing; that don?t do nothing. During his interview Caballero further stated that Operator Kirkpatrick said, am sick and starts swearing at Sergeant Caballero also said during his interview that the profanity was fresh in his mind after the incident when he wrote it up in his complaint email. Sergeant Caballero also said in his interview that he believed Operator Kirkpatrick was smart enough to move to the back of the bus so that the conversation between the two could not be detected by the audio recording of the camera coach system. On February 13, 2015, Deputy Shoblom was questioned about the incident by IIU Sergeant Frances Carlson. During the interview, Deputy Shoblom statedthe car like I couldnlike ah talking over the hood. So I immediately get out; and I hear KEL VIN like screaming; like just completely yelling. got three fucking deputies out here and they don?t do nothing. And he said something else and LOU goes why are you yelling at me?? When asked if Operator Kirkpatrick was telling the truth that Kirkpatrick did not use profanity, she said She said Sergeant Caballero was telling the truth regarding Operator Kirkpatrick using profanity and that she is 100% sure. On February 15, 2015, Deputy Bailey was questioned about the incident by IIU Sergeant Frances Carlson. Sergeant Carlson asked Deputy Bailey what he heard on November 14, 2014 during the incident and he stated; could tell it was a heated conversation. . .But, I didn?t hear any profanity, it was just loud. Wasn?t at the level of screaming that it caused a crowd or other people to look in or anything like that. It was just ah I could tell they were both very angry. And it seemed Page 4 of 9 like there had been some history between the two of them too; because there was you know mentioning like you guys are always standing around or stuff like that so.? OPERATOR COMPLAINT AGAINST SERGEANT CABALLERO On January 8, 2015, Operator Kirkpatrick was interviewed by KCSO IIU Sergeant Frances Carlson. During his interview he shared that he told his supervisors he could prove he did not use the profanity that Sergeant Caballero accused him of using. He stated he could do this because the November 14?h interaction was documented in the video from the body camera he wears. Operator Kirkpatrick said he wore a body camera during his Night Owl service because he did not feel safe. The presence of this body camera resulted in the interaction between Sergeant Caballero and Operator Kirkpatrick being videotaped. Sergeant Caballero was not aware he was being videotaped during this contact. Mr. Kirkpatrick submitted to the video he took of the November 14, 2014 incident. In the video Sergeant Caballero asks Mr. Kirkpatrick ?why are you yelling at me?? Mr. Kirkpatrick responds; ?m not yelling at you sergeant. I?m not yelling at you. I?m expressing how frustrated I am at the fact that I got three deputies that don?t do anything when I need help. In May 2015, KCSO Detective Melissa Rogers performed a digital forensics analysis of Mr. Kirkpatrick's body camera video. Detective Rogers found; used the lrfan View software program to view both video files and could see no evidence of alteration or modi?cation of the video other than the cropping or shortening of the copy that was stored on the laptop computer.? Based on the physical evidence and statements, I believe that Sergeant Caballero was not honest that Operator Kirkpatrick used profanity against Sergeant Caballero. The Kirkpatrick Body Cam Video reflects the following narrative: ?I?m expressing how frustrated I am at the fact that I?ve got three deputies that don?t do anything when I need help!? 0 Sergeant Caballero made a formal complaint in writing with his command staff that Mr. Kirkpatrick yelled: ?You got three fucking deputies out here that don?t do nothing.? 0 Witness Deputy Shoblom summarized the event in writing within approximately one hour at the request of her Sergeant. At 0401 hours, she noted in her narrative: heard Kelvin yelling. He was saying, I got three fucking deputies out here that don?t do nothing!? 0 Witness Deputy Bailey stated that he did not hear anyone swear or use profanity. Retaliation Mr. Kirkpatrick is of the belief that this false complaint was made by Sergeant Caballero as a form of retaliation for the earlier complaint he made against Sergeant Caballero. I agree with Mr. Kirkpatrick's who reports that the pattern of negative behavior started well before this Page 5 of 9 incident. This is noted in the initial allegations and Mr. Kirkpatrick?s email complaint to me on October 7, 2014 about the conduct of Sergeant Caballero on September 28, 2015. Sergeant Caballero produced a false email complaint report where he alleged profanity on the part of Operator Kirkpatrick. To put it in concise terms, I think that he retaliated by making false statements and acted dishonesty when he took the action to make a formal complaint against Operator Kirkpatrick for using profanity. This allegation of profanity was supported by Deputy Shoblom (witness) both verbally and in writing. Had it not been for the video images captured outside of the coach during this interaction, it is likely that this complaint would have been sustained as misconduct against Operator Kirkpatrick according to Metro. This would have resulted in progressive discipline against him as a transit employee. Moreover, during his IIU interview, Sergeant Caballero was adamant that he never told Deputy Shoblom what to write in her November 14, 2014 statement. However, when Deputy Shoblom?s written statement is compared with Sergeant Caballero?s November 14, 2014 complaint, they both have the statement KCSO has ?got three fucking deputies out here that don?t do nothing." The statements are identical - including the claim of profanity which never occurred and grammatically improper use of the word ?nothing? instead of ?anything.? The facts support a finding that both Sergeant Caballero and Deputy Shoblom documented the same inaccurate and false version of events, close in time, when these events were freshest in their minds. Deputy Shoblom supported her sergeant while in contrast Deputy Bailey did not. Given the uncontroverted evidence of the video tape which contradicts their version, there is no other reasonable explanation or finding on these facts. Sergeant Caballero stated that the use of profanity on the part of Operator Kirkpatrick had no bearing on his complaint because Kirkpatrick?s anger and tone alone were grounds for a formal complaint. I disagree with his assertion. It is one thing to make a complaint about a public servant who displays anger, frustration or a negative tone with a customer. By adding an allegation of profanity to a courtesy complaint it can take on much more significance, if sustained. The use of profanity on the part of a transit bus operator with a customer, if sustained, would result in more severe discipline than if no profanity was used. It appears that the decision by Sergeant Caballero to add an egregious hyperbole (?fucking deputies?) would make this a much more serious complaint. It should also be noted that in their reports and witness statements, both Sergeant Caballero and Deputy Shoblom emphasized the claim that Operator Kirkpatrick used the phrased "three fucking deputies." This complaint by Sergeant Caballero, which was recommended a as classification of UNFOUNDED by Metro Transit Base Chief Arnold Becker, violated the trust and respect of the Sheriff?s Office by our important customers at Metro Transit and the public that we serve. The Metro Transit Police is the largest contract for the Sheriff?s Office. One of our primary goals for Metro Transit is to support the safety and security of transit employees, which most importantly includes the front line bus operators. Members of transit operations must count on the deputies and sergeants of the transit police to deliver high quality and professional law enforcement services that support their security. I believe that the behaviors, policy violations, retaliation and dishonesty of Sergeant Caballero have diminished the respect of the Sheriff?s Office in the eyes of our transit employees. He has violated our core values of leadership, integrity, service and teamwork. In fact, 'his reputation as a supervisor is overshadowed now by feelings of distrust, resentment and disappointment by Page 6 of 9 many transit employees. As the Precinct Commander, I find his actions as a supervisor completely unacceptable. At the National, State and Regional level, the public perception by many Americans of members of law enforcement at this time is critical and laced with distrust. We have seen countless protests across the country and many in the Seattle community surrounding these complicated social issues, use of force and law enforcement integrity. Many community discussions surround the necessity for members of law enforcement to wear mandatory body cameras to monitor their interactions with the public. In this instance a bus operator, wearing a video camera captured evidence that a member of law enforcement took actions to make false allegations of misconduct against him. RECOMMENDED CLASSIFICATION OF ALLEGATION SUSTAINED Allegation Rules of Conduct: a. Making false or fraudulent reports or statements, committing GQM acts of dishonesty, or inducing others to do so. i. Retaliation or ALL RECOMMENDED iiugzog14-244 and-IIU 20115?108 Allegation Rules of Conduct: h. Ridiclule CLASSIFICATION OF ALLEGATION SUSTAINED Allegation Performance Standards: CLASSIFICATION OF ALLEGATION SUSTAINED Allegation Performance Standards: Appropriate Use of Authority CLASSIFICATION OF ALLEGATION UNFOUNDED Allegation #4 (after January 27, 2015 IIU Interview): Rules of Conduct: a. Making false or fraudulent reports or statements, committing acts of dishonesty, or inducing others to do so. i. Retaliation RECOMMENDED CLASSIFICATION OF ALLEGATION SUSTAINED Page 7 of 9 TIMELINE OF EVENTS 09/28/14 0321 of Force Deputy DeFries (ties 7 I Approx 10/07/14 Unk Incident contact between Sgt. Caballero and Operator Kirkpatrick after a Use of Force Investigation (that occurred on 09/28/14). Allegations of non-cooperation misconduct noted from the contact initiated by Sgt. Caballero against Operator Kirkpatrick. 10/07/14 1410 Complaint email from Operator Kirkpatrick to Maj. Jutilla Alleged Abuse of Authority, Ridicule and/or Courtesy on the part of Sgt. Caballero 10/24/14 1506 Capt. Williams began Section Level Complaint Investigation in Blue Team 11/12/14 1900 Security Focus Night Owl Service with KCM Operations (Bus Drivers, SQ Supervisors and Chiefs with Maj. Jutilla and Capt. Williams. 0 See final notes from meeting completed by Base Chief Arnie Becker 11/14/15 Approx 0315 Verbal contact between Operator Kirkpatrick and Sgt. Caballero behind a Metro Bus. Allegations of profanity arise from this interaction. - See statements and external video captured at during the interaction. 11/14/15 0459 Sgt. Caballero sends a complaint email to Capt. Williams alleging that Operator Kirkpatrick used profanity against him during a contact in the field a few minutes earlier. He requested a formal complaint be filed against the Operator with KCM. - See email complaint, statements 11/14/14 1130 Maj. Jutilla and Capt. Williams contacted Base Chief Arnie Becker and reported the complaint of Sgt. Caballero against Operator Kirkpatrick. - Complaint given to Chief Becker with Chief Kost present during meeting. a See KC Metro Investigation - Classified as UNFOUNDED. 11/14/14 2100 Capt. Williams' memorandum written to Sgt. Caballero directing him to ?Minimize/Limit Contact? between him and Operator Kirkpatrick. - Phone call verbal admonishment of directive time: 2100 hours. 11/18/14 1615 Capt. Williams received an email from Sgt. Caballero?s private attorney. After review with Maj. Jutilla, the decision was made to transfer the complaint investigation to IIU. 11/21/14 0530 Captain Williams and Major Jutilla came into MTP to have an early morning meeting with Sergeant Caballero on the Security Night Focus Group Meeting. We reviewed the final notes, discussed the constructive feedback and I concluded the meeting with: We have just received community feedback (we do not need to become defensive over this group feedback) and we need to take it in with professionalism and improve our efforts and performance. - The meeting concluded on a positive note and Sergeant Caballero assured Captain Williams and me that he was prepared to work with his partner on the Follow?Up/Action Items. 12/09/14 Capt. Williams sent a memorandum to Sgt. Carlson on complaint update. Included: - Information on supplemental CCTV images 12/11/14 0215 Additional interaction on Metro bus took place between Operator Kirkpatrick and Sgt. Caballero. Direct contact was initiated by Sergeant Caballero and concluded with a handshake. This was done after directive was given to ?Minimize/Limit Contact?. 0 A review of camera coach images revealed that Sgt. Caballero initiated the contact in violation of the "Minimize/Limit Contact? Directive that he had received from Captain Williams on November 14th. a This was SUSTAINED under Part A, Allegation 12/11/14 1928 hours As a result of the complaint that Sergeant Caballero made contact with Mr. Kirkpatrick, Captain Williams completed a memorandum written to Sgt. Caballero directing him to have ?No Contact" with Operator Kirkpatrick. Incorrect date of 12/10 was noted on the on the memorandum. Page 8 of 9 - Phone call/verbal admonishment of the memorandum was made by Captain Williams with Sergeant Caballero at 1928 hours 12/11/14 Operator Kirkpatrick went out on ?leave status? from Metro Transit. 01/27/15 Sergeant Caballero was interviewed by about these allegations. 02/13/15 Deputy Shoblom was interviewed as a witness on Allegation 04/02/15 Sergeant Caballero and Deputy Shoblom A-150?s were generated that reflected they were alleged to have been dishonest during their llU interviews. 04/16/15 Sergeant Caballero and Deputy Shoblom were interviewed by on allegations of dishonesty during their interviews. Page 9 of 9