Michael Schmuhl July 30, 2013 Page 3 1 i 2 11 UNITED STATES DISTRICT COURT THE DEPOSITION MICHAEL SCHMUHL NORTHERN DISTRICT OF INDIANA 2 SOUTH BEND DIVISION DIRECT EXAMINATION 3 By Mr. Page 4 KAREN DEPAEPE. I 4 Plaintiff, I By Mr. Page 82 I 5 vs 16359 No. EXAMINATION 1 6 By Mr. Page 85 cm: or soon: BEND and part: I 1 . BUTTIGIBG, Individually and in his 7 official capacity as Mayor of the .3 I I .51 city of South Band, I 11?. DESCRIPTION PAGE 3 Defendants. 9 1 Letter to Pralidant Dieter, 6-6-12 51 I 10 i I The Dapoaition of "rennet. scrotum. 11 EYES onus Page 63 and B3 Datel Tuesday, July 30, 2013 12 Time: 10112 mm. 13 Place! Bake: 5 Daniels, LLP 14 202 South Hichigan street. 1-100 KayBank Building 15 south Band, Indiana 46601 16 11 Called as a witness by the Plaintiff in accordance 18 with the Federal Rules of civil Procedure for the 19 United States District Court, Northern District of 20 Indiana. south Bend Division, pursuant to Notice. 21 22 23 Reported by 24 Angela J. Galipaau, RPR, CSR Notary Public, state of Indiana 25 Page 4 Page 2 1 MICHAEL SCHMUHL 1 2 called as a witness by the Plaintiff, having first been 2 HR. SCOTT DUERRING . . . 3 Laglof?s?. 3 duly sworn, was examined and testified as follows. 1 .5. Sou south Bend. Indiana 46614 4 DIRECT EXAMINATION 1 avu 5 BY MR.DUERRING: 5 For the Plaintiff] 6 Q. For the record, will ou lease state our name. 6 I . SULLIVAN . 7 HR Dania'ls, 7 A. Michael Robert Schmuhl. 1400 Key Bank Building . a 202 south Michigan street 8 Q. And could you spell your last name for the court reporter? south Bend. Indiana 46601 9 (574) 239?1930 9 A. S-o-h-m-u-h-l. adWard . aull ivon?faeqruBD. com 10 a I ?mm Dam? 10 Q. Mr. Sehmuhl, have you ever had your deposrtlon taken 11 Ms. cnIs't'AL c. BRIsco city of South Band 11 before? 12 22? West Jefferson Boulevard, Suite 1400 South Bend. Indiana 46601 12 A. I have not. 13 (574) 234-5091 14 t'h 13 Q. I'm sure thatyou probably have talked With your legal representatives, but I'm going to give you a rund0wn of 16 15 what I expect to happen this morning. Obviously you 1" 16 understand you're under oath and the court reporter is 1" 17 here taking down everything that everybody says. 19 18 A. Uh-huhcouple words ofadVIce. When anybody asks you a 1 22 20 question, you have to respond orally. A nod ofthc head 23 21 or shake of the head doesn?t work for the court reporter. 24 22 Do you understand that? 25 23 A. Yes. 24 Q. And I would ask you in situations if the answer is no to 25 say no rather than uh-huh or huh-uh because. again, that's Midwest Reporting. Inc. (574) 288-4242 Page 1 to 4 of 88 Michael Schmuhl July 30, 2013 Page 5 Page 7 1 hard to interpret. So no or yes or some kind of verbal 1 moved back home, worked in his congressional office for -- 2 English response is preferable. Is that okay? 2 from July of'09 to February of '10. Then he asked me to 3 A. Yes. 3 run his reelection campaign for Congress. I did that 4 Q. Also, I'm not here to try to trick you or pull any kind of 4 until November of that year. 5 shenanigans on you. If I ask you a question that you 5 Shortly thereafter, a friend of mine from high 6 don't understand, let me know. Okay? 6 school, Pete Buttigieg, was interested in running for 7 A. Okay. '1 7 mayor. He asked me to run his campaign for mayor. We won 8 Q. I'll try to restate it. But if you answer a question I 8 the primary, won the general. And after winning the 9 ask without asking me to restate it, then I'm going to be 9 general election, he asked me to be his chief of staff. I 10 assuming that you understood the question that was being 10 was his chief of staff through the transition, taking on 11 asked. Is that fair? 11 full duties January lst, 2012. And I was chief of staff 12 A. Yes, that's fair. 12 from January lst, 2012, until last month. 13 Q. And if you've got any questions that you want to take a 13 . Describe for me what the duties -- I guess what the job 14 break and talk to your legal representatives, then feel 14 description is for a chief of staff in the position you 15 free to ask for that and we can take all the time you 15 were in. 16 need. Is that okay? 16 . First and foremost, manage the office, the day-to-day 17 A. Yes. 17 operations of the of?ce, manage the staff, report to me, 18 Q. How old are you? 18 and then ultimately report to the mayor, served liaison for the mayor through a number of city 20 Q. And you're employed currently with the City of South Bend; 20 departments, oversaw sensitive issues with the city, 21 is that correct? 21 relating to either economic development, legislative 22 A. I am not. 22 developments, political developments, things of that 23 Q. You were employed by the City of South Bend? 23 nature. 24 A. I was. 24 . Who did you report directly to? 25 Q. Tell me about your educational background. 25 . To Mayor Pete Buttigieg. Page 6 Page 8 1 A. I grew up in South Bend. I went to St. Marysafe to assume then you were somewhat the second; 2 Assumption grade school. I went to St. Joe High School. 2 he was the top and you were the rung underneath him with 3 I went to the University of Notre Dame. 3 respect to the hierarchy in that of?ce in the And when did you graduate? 4 administration? 5 A. From Notre Dame? 7 5 6 Q. Yes. 6 . Prior to taking that position, or any time while you had 7 A. 2005. 7 that position, was there any kind of training or 8 Q. What was your degree in? 8 educational programs you went to to help be able to 9 A. It was a bachelor's in history. 9 perform the duties of chief of staff? 10 Q. Any additional education beyond that? 10 . I think that my experience in journalism and writing and 11 A. No. No. 11 dealing with the media was important and critical. I 12 Q. Okay. What did you do after you graduated from Notre 12 think that being a top aid to a congressman was also 13 Dame? 13 suf?cient preparation. And then also managing, you 14 A. I worked for a time as a journalist in the Twin Cities, 14 know -- starting and managing two high pro?le political 15 Minneapolis-St. Paul. Shortly after moving there, I was 15 campaigns and ultimately being successful in both was 16 contacted by the Washington Post to apply for a position 16 adequate preparation. 17 in the newsroom. Iworked at the Washington Post, 17 . So what you're saying is basically other than the work 18 ultimately accepted that job, moved to Washington DC, 18 experience that you had after leaving Notre Dame, you 19 worked for the Washington Post for three years, from July 19 didn't have any specialized training or education to 20 of '06 to July of ?09. 20 perform the role as chief of staff? 21 I was interested in getting involved in politics and 21 MR. SULLIVAN: Objection, vague as to 22 public service. I contacted then Congressman Joe 22 "specialized training." Go ahead. 23 Donnelly?s of?ce on Capitol Hill to inquire about 23 . Could you clarify. 24 employment there. Congressman Donnelly offered me a 24 . Sure. Originally I asked you whether or not you had any 25 position, not on Capitol Hill, but in South Bend. So I 25 training or other speci?c education to assist you to fill Page 5 to 8 of 88 (574) 288?4242 Michael Schmuhl July 30. 2013 Page 9 Page 11 1 the role of chief of staff. I believe you indicated to me 1 A. No. 2 several areas where you had worked as far as aid, campaign 2 Q. Let me at this point in time, while I remember to tell 3 manager, joumalist, but you didn't indicate anything 3 you, right now I'm looking at a period of time after 4 else. So I was just trying to clarify for me whether or 4 you -- after the mayor took of?ce, which would have been 5 not that was basically the training you had. 5 January lst, 2012, and up until just before Karen was 6 A. Yeah. 6 terminated, in that timeframe there. Okay? 7 Q. When did you first meet Karen DePaepe? 7 A. Okay. Sure. 8 A. I can't recall the exact date. Although, I did take a 8 Q. And my understanding is that you -- at some point in time 9 tour of the South Bend Police Department and the 9 during that period of time, you were over in the 10 communications division early on in my time as chief of 10 communications center and you took a tour. That was about 1 1 staff. 1 1 it? 12 Q. Was that after January 1st of 20l2? 12 A. Uh-huh. 13 A. I can't remember. I don't remember. 13 Q. That's a yes? 14 Q. What did the tour consist of? 14 MR. SULLIVANLiterally just walking through and seeing where the 15 A. Yes. 16 dispatchers sit, and I remember seeing the command screens 16 Q. At any point in time prior to Karen's termination -- now 17 and how they respond to calls and things like that, 911 17 this will go beyond or before even January lst, 2012 -- 18 calls. 18 did you receive any kind of instruction or information on 19 Q. Did you meet Karen at a tour? 19 how their recording, the voice logger system or voice 20 A. I believe so, yes. 20 recording system worked in the South Bend communications 21 Q. Did she participate in the tour, to your knowledge? 21 department? 22 A. I don't rememberyou know who else was with you, or was there anyone 23 Q. Since the termination of Karen, have you received any kind 24 else with you when you did this tour? 24 of information or training with respect to how that system 25 A. I don't remember. 25 worked? Page 10 Page 12 1 Q. So when is it that you do remember Speci?cally meeting 1 MR. SULLIVAN: Objection, compound. Information 2 Karen? 2 or training can be two wildly different things. You 3 A. You know, I don't speci?cally remember meeting her. I 3 can answer. 4 _remembe_r mee?rgalgt of people on the tour that were in 4 A. Informatir? yes. 5 that center. 5 Okay. What type of information do you recall receiving? 6 Q. It doesn't necessarily have to be during the tour. After 6 A. Iremember learning about the different lines in the 7 the tour at some point in time you obviously met her, I'm 7 police department that are recorded and for what purpose. 8 assuming. So do you remember when that was? 8 Q. Anything else? 9 A. The last time Iremember meeting with her was a meeting 9 A. Just that it was standard -- it's standard protocol in a 10 that 1 had with her in early April. 10 police department to record 911 dispatches, calls that 11 Q. That's when she was terminated? 11 come into the front desk. The unique circumstance with 12 A. Yes. 12 this issue is that other conversations were being 13 Q. But before that, you don't have any speci?c recollection? 13 recorded, copied, and used. 14 A. Idon't. 14 Q. Anything else? 15 Q. Other than the time that you took the tour in the 15 A. That, I believe, DVD's or CD's were stored in the director 16 communications center at the South Bend Police Department, 16 of communication's of?ce, sort of backup audio, hard 17 did you ever -- were you ever over there again in that 17 copies I think were stored in that of?ce. And that's 18 area of -- in that particular department? 18 about the extent of the information. 19 MR. SULLIVAN: Objection. Communications 19 Q. Okay. Going back then, ?rst thing you said that you -- 20 department? 20 information that you learned was about the different lines 21 MR. DUERRING: Yes. 21 that were being recorded and the purpose. Tell me what 22 MR. SULLIVAN: Yeah. 22 you learned with speci?c regard to the lines that were 23 A. Before she was 23 being recorded and the purpose of those lines. 24 BY MR. DUERRING: 24 A. On March 23rd, 2012, I was in a meeting with the US. 25 Q. Yes. 25 Attorney for Northern Indiana, three of his deputies, and Midwest Reporting, Inc. (574) 288-4242 Page 9 to 12 of 88 Michael Schmuhl July 30, 2013 Page 13 Page 15 1 the number two of the FBI for the State of Indiana where 1 Q. Okay. Speci?cally with regard to the meeting that you 2 they informed me that certain telephone lines in the South 2 say took place on March 23rd, 2012, you mentioned the 3 Bend Police Department were being recorded and that they 3 meeting with the U.S. Attorney for the Northern District 4 were being recorded improperly, and that there were 4 of Indiana. 5 violations there, and that the director of communications 5 A. Yes. 6 at the time was listening to these conversations, 6 Q. And my understanding is that is David Capps? 7 recording these conversations, copying those conversations 7 A. David Capp, C-a-p-p. 8 and then delivering them to the then chief of police so he 8 Q. And who else? Speci?cally not title, but by name. 9 could listen to those tapes to see who was loyal or 9 A. Sure. Kenneth Hayes, Clifford Johnson, Donald Schmid, and 10 disloyal to him on the force. 10 the number two for the FBI in the State of Indiana, and I 11 Stemming from that meeting, it was very clear that 11 believe his name is Kevin Lyons. The number one was sick. 12 there were problems with two people who work for the city, 12 Q. And where did that meeting take place? 13 and there was a problem with our compliance with the law 13 A. It took place at the federal building in downtown South 14 and policy as it relates to the recording of phone lines 14 Bend. 15 in the South Bend Police Department. 15 Q. Besides -- was there anyone else besides you from the city 16 Leaving that meeting, it's my responsibility as chief 16 present during that meeting? 17 of staff to brief the mayor on that, but also -- to get to 17 A. Yes. 18 your question -- to make sure that our policy is in 18 Q. Who else? 19 compliance with all applicable laws. And so Imade sure 19 A. Interim City Attorney Aladean DeRose, and special counsel 20 thatI learned what lines were recorded properly. And we 20 to the city, Richard Hill. 21 just followed through with setting that policy, so making 21 Q. And yourself, correct? 22 sure that all recording was halted with the exception of 22 A. Yes. 23 911 emergency calls, dispatch calls, and calls to the 23 Q. Anyone else? 24 front desk. 24 A. No. 25 . Okay. Anything else about that particular aspect thatl 25 Q. Was there anyone in particular from the government, and Page 14 Page 16 1 asked you about? 1 that's either the FBI or the U.S. Attorney's of?ce, that 2 . Recording of phone lines? 2 did most of the talking or all of the talking? 3 . Yeah, learning about the different lines that were 3 A. Two individuals did most of the talking. 4 recorded and their purpose. 4 Q. Who would that be? 5 . Additionally, the City of South Bend went over a Voiceover 5 A. Davrd Capp and Donald Schmid. 6 IP transition. This commenced under the Luecke 6 Q. Okay. Speci?cally -- were there any notes to your 7 administration and was ?nalized under the Buttigieg 7 knowledge taken of that meeting? 8 administration. And I did learn about our Voiceover IP 8 MR. SULLIVAN: Objection, lack of foundation. Do 9 capabilities and also the on-demand feature that telephone 9 you mean by him or anybody? 10 lines have in the City of South Bend. 10 Q. Let me rephrase the question. To your knowledge, were any 11 Now, that's separate from the equipment that was in 11 notes taken during that meeting? 12 the 911 call center. These are on-demand features on 12 A. Yes. 13 somebody's cubicle desk phone or their desk phone that 13 Q. By whom? 14 they could actually ping in a code and that telephone call 14 A. Aladean, Aladean DeRose. 15 would be recorded. However, it's a very different use 15 Q. Anybody else that you know of? 16 than what we're talking about with the police recording. 15 A. No. I don't remember. 17 With the Voiceover IP on-demand functionthe best of your recollection, what was it that 18 party of that conversation. So if I'm having a 18 Mr. Capp said during that meeting? 19 conversation on the telephone, I can record that because 19 A. He said that the -- that his of?the participants. With this other issue, 20 conducted a investigation into the telephone 21 of?cer A and of?cer could be having a conversation and 21 recording practices in the South Bend Police Department. 22 somebody completely removed from the conversation is 22 And he said that there were clear violations, and it 23 listening to that material and listening to that content. 23 related to two people. He said that there was a 24 And that's the problem that the federal authorities 24 longstanding practice for the director of communications 25 briefed me on. 25 at the chiefs discretion to record certain telephone Page 13 to 16 of 88 (574) 288-4242 Michael Schmuhl July 30, 2013 Page 17 Page 19 1 lines in the department and that the capturing of certain 1 there were or that they were saying there are? 2 lines, the copying or recording of those certain linesthose lines was out of compliance with 3 Q. You had made reference initially that part of this was 4 federal law. 4 learning about the purpose of the recordings. Then you 5 And he outlined essentially the behavior of the 5 indicated that Mr. Capp had told you that the recordings 6 former chief of police where he directed certain lines to 6 were being made to were being used for the chief, the 7 be recorded. And the director of communications made 7 former chief in determining who is loyal or not. Is that 8 copies of certain conversations, delivering them to the 8 the purpose that you were referring to initially, or were 9 chief; and then the use issue is the former chief was 9 there any other purposes that were discussed? 10 listening to those conversations and using that material 10 A. What was the purpose of the meeting? 11 to see who was loyal or disloyal to him in his capacity. 11 Q. Yes. 12 Mr. Capp outlined that investigation, and I remember 12 A. The purpose of the meeting was for the U.S. Attorney to 13 he held ?ngers up and said, "There are two problems, 13 give the City of South Bend a brie?ng on the findings of 14 again, director of communications, the chief of police." 14 their investigation. 15 And he also held up a sign, held up his hands and did a 15 Q. I misunderstood. You said that you learned about the 16 sign, a sign (indicating) and said, "What we're going to 16 different lines that were being recorded and the purpose 1? do now is we're going to take a timeout. We?re going to 17 of those recordings, and then we discussed about this 18 take 60 days to allow the City Of South Bend to address 18 meeting that took place. You mentioned in the meeting 19 these issues." 19 that I think it was Mr. Capp had told you that these 20 And it was very clear that it was two people who w0rk 20 recordings were being made and the chief was using them to 21 for the city were involved in this and that our policies 21 determine the loyalty or disloyalty of various of?cers. 22 were out of compliance and that both of those things 22 Were there any other purposes for the recordings that 23 needed to be ?xed. 23 you were told or learned about during that meeting? 24 Q. When you mentioned the behavior of the former chief of 24 A. No. The meeting with federal authorities focused on the 25 police, who are you referring to? 25 improper lines that were being recorded in the department. Page 18 Page 20 1 A. I'm referring to Darryl Boykins. 1 Stemming from that meeting was whenI did my own due 2 Q. Now, you mentioned -- is that pretty much everything you 2 diligence to see what other lines were being recorded in 3 recall David Capp saying during that meeting? 3 the department of a law enforcement and appropriate 4 A. Yes. 4 nature. Two very distinct things. 5 Q. Okay. And there you mentioned, I think, Donald Schmid was 5 Q. What lines during the -- during this particular 23rd 6 the other individual that did a substantial amount of 6 meeting, which lines did you learn that were being 7 talking or talked more than others? 7 recorded? 8 A. Yes. 8 A. They said that a line -- 9 Q. Do you recall what Mr. Schmid said? 9 MR. SULLIVAN: Hold on. Objection, vague. Do 10 A. I remember Mr. Schmid outlined the time when he 10 you mean which lines did he learn about on the 23rd? 11 interviewed former Chief Boykins about this during the 11 Q. Yes. What was discussed by any individual there that 12 investigation and outlined a story where they asked him to 12 taught you or informed you about the different lines that 13 come in for the interview and bring materials relevant to 13 were being recorded? What different lines were discussed 14 the investigation. And when they asked him if he brought 14 during that meeting? 15 everything, and "everything" meaning all the copies line in the detective bureau, yeah. 16 tapes, he said, "Well, I also made my own copy and I 16 Q. Did they indicate, "they" meaning either Mr. Capp or 17 didn't bring those." 17 Mr. Schmid or anyone else there that you can name from the 13 And the reaction in the room was they were sort of 18 government, when that line was -- or how long that line 19 shocked that the chief of police brought some copies and 19 had been recorded? 20 some materials, but also had what had seemed to be a 20 A. In that meeting? 21 personal set of these recordings. And that's about the 21 Q. Yes. 22 extent of what I remember ?'om Mr. Schmid's comments. 22 A. I don't remember. 23 Q. Now, when they were making reference to this -- these 23 Q. Did they discuss who authorized that line to be recorded? 24 recordings being provided to Mr. Boykins, or Chief 24 A. Can you repeat that? 25 Boykins, was there any comment on how many recordings 25 Q. Did they discuss who authorized that line to be recorded? Midwest Reporting, Inc. (574) 288-4242 Page 17 to 20 of 88 Michael Schmuhl July 30, 2013 Page 21 Page 23 1 A. Not speci?cally. But that could also be included in the 1 A. The U.S. Attorney for Northern Indiana, David Capp, said 2 chiefs discretion. A line that they used, that it was a 2 that they would take a timeout from the case to allow the 3 longstanding practice that at the chief?s discretion 3 city to address these issues for 60 days. 4 certain lines could be recorded via the director of 4 Q. Anything else? Was anything else said with respect to 5 communications. 5 this? 6 Q. Did they explain to you how that happened in any way? 6 A. As it relates to indictments or -- 7 A. What happened? 7 Q. Yes. 8 Q. How it went from the chief?s discretion for a line to be 8 A. No. 9 recorded through the director of communications? Did they 9 Q. Did Mr. Capp or anyone else from the government indicate 10 explain, I guess, the logistics with respect to how a line 10 how the city should address these issues? 11 was recorded? 11 A. I asked a question in the meeting and -. I asked a 12 A. In the meeting? 12 question to them. I said, "Does this mean that we should 13 Q. Yes. 13 take care of a personnel matter and a policy matter?" 14 A. No. 14 Q. And what was the reaponse? 15 Q. At any time did either Mr. Capp or Mr. Schmid suggest that 15 A. They said, "We're not going to tell the city what to do." 16 anyone be terminated as a result of this? 16 Q. And who said that? 17 A. They said that we had problems with two people in the city 17 A. David Capp. 18 administration, and that there were clear -- you know, 18 Q. Did he say anything else with respect to that issue? 19 there was clear noncompliance with certain issues. 19 A. No. 20 Q. Well, I'm asking did they suggest any particular 20 Q. Did he leave you with any impressions of what you should 21 individual or individuals should be terminated as a result 21 do? 22 of what they say they found? 22 A. Yes, absolutely. 23 A. No. 23 Q. What Was the impression or impressions that he left? 24 Q. Did they -- and again referring to either Mr. Capp or 24 A. The strong impression that he le? with me was that our 25 Mr. Schmid -- detail for you in that meeting what they 25 policies as it relates to telephone recording in the South Page 22 Page 24 1 felt was -- the noncompliance of the recordings, why they 1 Bend Police Department were out of compliance with federal 2 felt it was not in compliance with the Federal Wiretap 2 law and their guidelines, and that there were two people 3 Act? 3 in the city administration who were responsible for that, 4 A. Yes. Again, it was listening to conversations between 4 and that the impression was to end the investigation, that 5 of?cer A and of?cer without their knowledge. It was a 5 those policies needed to be adjusted and put in compliance 6 violation. Capturing that audio was a violation. Making 6 and that personnel actions needed to be taken. 7 copies of that material was a violation, and that the 7 Q. Alter that meeting was concluded, what did you do? 8 chief of police was then using that audio returned to my office in the County-City Building. 9 loyal or disloyal to him on the police force. 9 Q. Then what? 10 Q. Anything else that you can recall? 10 A. A meeting was convened with the mayor. 11 A. No. 11 Q. Was that the same day? 12 Q. Was it explained by anyone as to how the chief was using 12 A. Yes. 13 the tapes to determine who was loyal or disloyal? 13 Q. I'm assuming that took place in the mayor's of?ce? 14 A. in the meeting? 14 A. Yes. 15 Q. Yes. 15 Q. Who was present during that meeting? 16 A. Can you repeat it, sorry, one more time? 16 A. Myself, Aladean DeRose, Richard Hill, Mayor Buttigieg, and 17 Q. Did they explain how the use of the tapes to determine 17 Deputy Chief of Staff Katherine Roos. 18 whether or not a person was loyal or disloyal was being 18 Q. How do you spell that? 19 done? 19 A. Last name, R-o-o-s. 20 A. No. 20 Q. Anyone else? 21 Q. Approximately how long did this meeting last? 21 A. I don't believe so. 22 A. Approximately 30 minutes. 22 Q. Just an aside before I forget to ask, who is Matt Sikora? 23 Q. Was there any discussion during the meeting of the federal 23 A. Matt Sikora? 24 authorities charging anyone with a federal crime as a 24 Q. Yeah. 25 result of what they found? 25 A. Is the mayor's executive assistant. Page 21 to 24 0f 88 (574) 288-4242 Michael Schmuhl July 30, 2013 Page 25 Page 27 1 MR. SULLIVAN: That's S-i-k-u-r-a? 1 Ms. DePaepe that occurred with the mayor at that 2 THE WITNESS: S?i-k-o-r?a. 2 follow-up meeting. Did any such discussions or 3 MR. DUERRING: What occurred during this meeting? 3 decisions occur regarding Ms. DePaepe at the meeting 4 MR. SULLIVAN: At this point, I'll make an 4 in the mayor?s of?ce? 5 objection because there were attorneys present at the 5 A. Uh-huh. The chief in his position was the primary focus 6 meeting. And why don't you give me, if you would, 6 of that meeting, and Ms. DePaepe was more of a secondary 7 Scott, ?ve minutes to talk with my client and with 7 consideration. But it was clear in that meeting that two 8 co-counsel. We want to be able to have you get to 8 personnel actions had to be taken following this meeting. 9 the issues that you have legitimate questions about, 9 I mean, when you have the presidentially-appointed US. 10 but we have to protect privilege. It's kind of 10 Attorney for Northern Indiana and his three chief deputies 11 tricky because there were lawyers in that meeting. 1 1 and the number two in the state for the FBI telling you 12 Can we take a break? 12 that you haVe two problems with two people and keeping 13 MR. Sure, that's ?ne. 13 compliant with the laws, that's a very serious thing. And 14 MR. SULLIVAN: I apologize that the question is 14 in that meeting -- 15 pending, but it does relate to privilege issues. So 15 Q. Now, I'm getting confused what meeting you're refen?ing 16 we're off the record. 16 to. The meeting with the U.S. Attorney's of?ce? Because 17 (Recess taken.) 17 I'm trying to focus right now on the meeting with the 18 MR. SULLIVAN: Back on the reCord. Counsel will 18 mayor and the individuals -- 19 allow Mr. Schmuhl to answer your question about what 19 A. That?s what I'm focusing on too. It was very clear that 20 took place in the March 23rd meeting a?er he left 20 two personnel actions needed to be taken, Again, the 21 the US. Attorney's meeting in a limited manner as 21 chief was the primary forms of that meeting because of his 22 follows: He can address any discussions or 22 position and, you know, he's a department head, mayorally 23 communications between he, the mayor, and the 23 appointed; but Ms. DePaepe's, you know, future was also 24 assistant chief of staff, Katherine Roos. as they 24 discussed. 25 relate only to any discussion of job action that 25 Q. Tell me about that discussion. Page 26 Page 28 1 relates to Ms. DePaepe; but that I would instruct him 1 A. Again, I don't remember the speci?cs. 2 not to answer as to any other elements of that 2 MR. SULLIVAN: And sorry to be interrupting, but 3 discussion because they're privileged. And if you 3 just --you can tell him about discussions as long as 4 would agree that his answer on that limited degree 4 you don't touch on any discussions with Rich Hill or I 5 doesn't wai?wa?any privilege, then 7 _5 6 to that extent. 6 A. Attorneys, yeah. I don't remember the details. Ijust 7 MR. DUERRING: I would agree to those parameters. 7 remember that it was clear, again, that two personnel 8 MR. SULLIVAN: Thank you. 8 actions had to be taken. 9 BY MR. DUERRING: 9 Q. What kind of personnel actions had to be taken? 10 Q. Mr. Schmuhl, you understand -- during a break you 10 A. As it relates to Ms. DePaepe? 1 1 discussed this with counsel. You understand where we're 1 1 Q. Yes. 12 going with this? 12 A. In that meeting, it was clear that she could not be 13 A. Yes. 13 director of communications. 14 Q. So what happened during that meeting as it relates to 14 Q. How did that become clear? 15 these kinds of discussions concerning Ms. DePaepe, if any? 15 A. Again, being one of the two people that were responsible 16 A. After the meeting with the US. Attorney, it was very 16 for these issues, for our noncompliance, she needed to be 17 clear to me and to others in the room that personnel 17 out of that position. 18 action needed to be taken with two individuals, with the 18 Q. Was that decision made at this meeting with the mayor? 19 chief of police and with the director of communications. 19 A. I don't remember. 20 MR. SULLIVAN: And his question then focuses on 20 Q. Was any decision made with respect to Ms. DePaepe's 21 the meeting that occurred in the mayor?s of?ce 21 employment with the city during that meeting? 22 afterwards. 22 A. I don't remember. 23 THE WITNESS: Yes. 23 Q. What was the purpose of this meeting? 24 MR. SULLIVAN: And I'm allowing you to describe 24 A. To give the mayor a brie?ng on the meeting that we had 25 any discussions or decisions that relate to 25 with the US. Attorney, his deputies, and the FBI. Midwest Reporting, Inc. (574) 288-4242 Page 25 to 28 of 88 Michael Schmuhl July 30, 2013 Page 29 Page 31 1 Q. As I understand it, the only perSOn that was present -- 1 (Recess taken.) 2 there were two people present in the second meeting that 2 (Read back.) 3 were present in the ?rst meeting with the government. 3 MR. SULLIVAN: Back on the record. And I 4 Thatwas yourself and Rich Hill, correct? 4 instruct the witness to answer that question to the 5 A. In the meeting with the U.S. Attorney? 5 extent he recalls anything, limited to discussions 6 Q. What I'm trying to ?gure out is who was -- you met with 6 with Mayor Buttigieg or Assistant Chief of Staff 7 the U.S. Attorney and the other individuals. I thought 7 Katherine Roos. Go ahead. 8 you said it was Rich Hill with you when you met with the 8 THE WITNESS: Okay. Again, in that meeting, 9 U.S. Attorney. 9 following the meeting with the U.S. Attorney, 10 A. Rich Hill and Aladean DeRose. 10 deputies, and the FBI, most of the conversation 11 Q. And you three were in the second meeting as well, correct? 11 focused on former Chief Boykins. Although, we did 12 A. Yes. 12 discuss both former Chief Boykins and Ms. DePaepe. 13 Q. Who conducted the brie?ng with respect to what occurred 13 And the conversations that I had with Mayor Buttigieg 14 in the meeting with the U.S. Attorney before the mayor? 14 and Deputy Chief of Staff Katherine Roos, from that 15 A. The three people that were present in that meeting. 15 meeting it was very clear that personnel actions had 16 Q. So everybody basically contributed? 16 to be taken on both fronts in that Ms. DePaepe could 17 A. Yes. 17 no longer be the director of communications. 18 Q. Did the mayor make a decision as to what should be done at 18 BY MR. DUERRING: 19 the meeting or at the conclusion of that meeting or any 19 Q. Okay. And I appreciate what you've said. But, again, you 20 time during that meeting? 20 said that it was clear to you. And I'm trying to ?nd out 21 MR. SULLIVAN: Objection, vague. What should be 21 why it was clear to you. What was said by either of those 22 done about Ms. DePaepe? 22 individuals, the mayor or the deputy chief of staff, that 23 MR. DUERRING: About Ms. DePaepe. 23 made it clear to you that this action -- at leastthat 24 MR. SULLIVAN: At the fol low-up meeting? 24 Karen had to be removed as director of communications? 25 MR. DUERRING: Yes. 25 . I don't remember the speci?cs. Page 30 Page 32 1 A. I don't remember. 1 . During that meeting, did you inform the mayor that the -- 2 BY MR. DUERRING: 2 that any representative from the federal government 3 Q. How long was that meeting? 3 advised that personnel decisions had to be made or 4 A. I don't recall the duration. 4 criminal charges or more indictments would result? 5 Q. Was that meeting recorded or were notes taken during that 5 . No. But, again, the full brie?ng that 1 received Item 6 meeting? 6 those high level federal authorities gave me the strong 7 A. I believe notes were taken by Aladean DeRose. 7 impression and really affected me and the others in the 8 Q. You mentioned -- and, again, I want to make sure I have 8 room that they wouldn't be taking this time if it Wasn't 9 your phraseology correct. It was clear -- very clear to 9 very serious and if -- and changes needed to be made. 10 you that something had to be done with respect to the 10 . Did you communicate that impression to the mayor during 11 chief and Ms. DePaepe. And what I'm trying to f'md out is 11 this meeting with the mayor? 12 what discussion, what was said thatmade that very clear 12 . Absolutely. 13 to you? 13 . How did you make that known to him or what did you 14 MR. SULLIVAN: Okay. Hold on. 14 speci?cally say to him that passed that impression on to 15 MR. DUERRING: Aside from anything any attorney 15 him? 16 present said. 16 . I essentially detailed and outlined to the mayor what was 17 MR. SULLIVAN: I understand. But if you would 17 presented to me in that meeting with federal authorities, 18 allow me for purposes of delineating privilege, I'm 18 that there was a practice with the director of 19 going to take another break with my client because I 19 communications and the chief of police to record certain 20 think these are issues that are important and that 20 telephone lines at the South Bend Police Department. But 21 you're entitled to in regard to an employment action, 21 what made this investigation unique was that they were 22 but it's very intertwined with a lot of other issues 22 capturing telephone conversations between of?cers. They 23 that are privileged. 23 were recording those conversations. They were making 24 MR. DUERRING: Okay. 24 copies of those conversations. And then the chief was 25 MR. SULLIVAN: We're off the record. 25 deciding who was loyal to him, who was disloyal to him. Page 29 to 32 of 88 (574) 288-4242 Michael Schmuhl July 30, 2013 Page 33 Page 35 1 And so in brie?ng the mayor, you know, you think 1 mayor and told him who was in the meeting, what they 2 about the chief of police listening to other people's 2 discussed. He absorbs that. And it's very clear two 3 telephone conversations to see who is loyal to him, and 3 personnel actions had to be taken and that Ms. DePaepe 4 the chief and Ms. DePaepe were the primary peeple 4 could no longer keep her job as director of 5 associated with that. 5 communications. 6 Q. And this was something you communicated to the mayor? 6 Q. You mentioned that the focus of the criminal investigation 7 A. I did communicate that to the mayor, and also that, you 7 was on two people. 8 know, the US. Attorney said we're taking a timeout for 60 8 A. Yes. 9 days to allow the city to address these issues. And it 9 Q. Who told you that or how did you get that impression? 10 was my clear impression that we had 60 days to address the 10 A. David Capp held up two ?ngers and said, "You have 11 personnel issues and the policy issues. And then if we 11 problems with two people." And he referred to them by 12 didn?t, that the FBI would come back in and potentially 12 title, director of communications and chief of police. 13 memo that investigation. 13 Q. Okay. And you mentioned that the purpose was to determine 14 Q. Is there anything that you recall being said that you 14 the loyalty -- or the listening of the recordings would 15 already have not testi?ed to that gave you that 15 determine the loyalty of the of?cers, was that again 16 impression? 16 Mr. Capp that told you that was the purpose of it? 17 MR. SULLIVAN: At the meeting with Capp? 17 A. It was either Mr. Capp or Mr. Schmid. I don't recall. 18 MR. DUERRING: Yes. 18 Q. My understanding ?om your previous answers were that at 19 MR. SULLIVAN: You can answer. 19 the conclusion of the meeting that you had with the mayor 20 BY MR. DUERRING: 20 and the other individuals you mentioned, the secondary 21 A. That I previously didn't say? 21 meeting or the second meeting, the brie?ng of the mayor, 22 Q. Yes. 22 that there was no formal decision with respect to 23 A. He just said we're taking a timeout for 60 days to allow 23 Ms. DePaepe and her employment with the city? 24 the city to address these issues. 24 MR. SULLIVAN: Objection, vague as to "fonnal 25 Q. Okay. So as I understand it, during the meeting with the 25 decision." Go ahead. Page 34 Page 36 1 US Attorney and federal government representatives, 1 A. From that meeting it was very, very clear that those two 2 nothing was communicated to you that a termination -- or 2 people could no longer hold their positions in the city. 3 that personnel decisions had to be made; is that correct? 3 Q. Was there anything clear about whether they could hold any 4 MR. SULLIVAN: Objection, mischaracterizcs. You 4 position with the city? 5 say nothing was communicated to you, that's -- you're 5 A. I?m not sure if it was that meeting or a separate 6 asking him if those words were used. It's different 6 conversation I had with the mayor. But we did entertain 7 than saying nothing was communicated to you. The 7 very briefly the idea that Ms. DePaepe could be placed in 8 witness may answer. 8 another city department and continue to work for the City 9 A. [just think that the -- that meeting and the attendees of 9 of South Bend. It was brie?y entertained. We did not 10 that meeting showed the severity and the seriousness of 10 follow through with that. 11 the problems in the South Bend Police Department; that, 11 Q. Why? 12 you know, the top federal law enforcement prosecutor in 12 A. The mayor felt that she should no longer have that 13 the northern part of our state, his three chief deputies 13 position, and it would probably be best if she was Outside 14 and the number two guy from the FBI in Indianapolis comes 14 the city. 15 to South Bend for a meeting is not to play nice. 15 Q. So obviously there was another meeting with the mayor 16 They conducted a criminal investigation. Two people 16 after this particular meeting we were discussing that 17 were the focus of that investigation. It related to the 17 occurred on the 23rd of March, correct? 18 improper recording, copying and use of telephone 18 A. It may not have been a formal meeting. My of?ce was 19 conversations between police of?cers in the South Bend 19 right next door to the mayor's. I would often be in his 20 Police Department. That's separate, completely separate 20 of?ce or he would be in mine, we'd meet in the hallway, 21 from regular law enforcement activity, talking to a 21 driving to an event. So we would talk frequently. 22 witness or talking to an informant, something like that, 22 Q. Okay. What is the next thing that you recall occurring as 23 all because the chief wanted to see who was loyal to him 23 it relates to Ms. DePaepe and her employment with the 24 or disloyal to him. 24 city? 25 And so that table is set. And I returned to the 25 A. The next week, on or around March 27th, I was trying to Midwest Reporting, Inc. (574) 288-4242 Page 33 to 36 of 88 Michael Schmuhl July 30. 2013 Page 37 Page 39 1 get in touch with Karen DePaepe to talk with her about 1 I don't recall how we connected on the phone. 2 these issues. She called me in the -- in my of?ce at the 2 Q. Do you remember whether or not the phone conversation that 3 County-City Building. I essentially said that we had a 3 we're talking about with Karen occurred before or after 4 meeting with federal authorities. They conducted an 4 Chief Boykins was asked to resign? 5 investigation relating to the recording of telephone 5 A. I believe it was after. 6 lines. 6 Q. Do you recall during that conversation telling Karen that 7 By that time, I feel from that conversation that she 7 if -- that if Chief Boykins had refused to resign, that he 8 knew that Darryl Boykins would not be chief of police for 8 would be indicted and Karen would be arrested? 9 much longer. She was very emotional on the telephone. I 9 A. I never said that Karen would be arrested. Although, that 10 told her that we had to take two personnel actions. 10 was covered in the media. I told her and I told former 11 Darryl was the ?rst. She was the second. She 11 Chief Boykins that the federal authorities found 12 was very emotional on the telephone. It was probably 12 irregularities and problems in the South Bend Police 13 about a ten-minute conversation. 13 Department as it relates to the recording of telephone 14 She vouched for the chief, said that he was a good 14 lines. And I said that they have given us 60 days to 15 man, also discredited other of?cers associated with this 15 address these issues. And it was my belief; my 16 issue, basically saying they were out to get the chief. 16 understanding that if we did not address those issues, the 17 They were gunning for him so to speak. I tried to be 17 two city employees could be centered in that 18 sensitive on the phone, tried to listen to her concerns. 18 investigation, again, and ultimately indicted. 19 I was attempting to get her to come in to the County-City 19 Q. Is that what you told Karen? 20 Building to meet with me to discuss these issues. 20 A. I said that, you know, this is a very dif?cult situation. 21 She declined that. She said, you know, I don't know 21 And I said, "Unfortunately if we do not take these 22 what I'm going to do. She was sort of rambling on the 22 personnel actions, you could be at risk for a potential 23 telephone. And at the very, very end of the call, I 23 indictment down the road, or a further investigation of 24 remember additionally that she said, may just resign by 24 the South Bend Police Department." 25 the end of the day. I don't know." And We sort of left 25 Q. And that's what you specifically remember telling her? Page 38 Page 40 1 it at that. 1 A. Yeah. I did not say, you know, I'll have you arrested or 2 Following that telephone conversation, it came to my 2 you will be arrested. 3 knowledge that she had taken some vacation days after that 3 Q. Do you recall telling her that if she talked about the 4 conversation. And so I was unable to get in touch with 4 circumstances that you were talking about with her 5 her until she returned from vacation, which I believe was 5 presently that she could Eindicted? 6 the followmg week. It was I think early April. And when 6 A. I said that there was a risk that she could be indicted. 7 she came back, I called her and asked her to come into the 7 Q. Okay. Let me try to separate because, as I understand it, 8 County-City Building to meet with me. 8 there's two aspects to this indictment discussion or 9 Q. Now, the telephone conversation you were talking about 9 whether it took place. 10 prior to that one youjust referred to, if Karen would say 10 First, the issue was whether or not you discussed 11 it occurred on March 29th, 2012, would that be within the 11 with her that if Chief Boykins had not signed a 12 time?'ame of your recollection? 12 resignation, that he could be indicted and she could be 13 A. It probably would. 13 arrested. Second aspect of this is did you inform her 14 Q. Prior to speaking with Karen on that -- in that ?rst 14 that if she talked about this with anyone that she could 15 phone conversation, were you aware that she Was attempting 15 be indicted. There's two aspects here. Do you remember 16 to contact the mayor to discuss the federal investigation? 16 any of those kinds of conversations, aside from what you 17 A. No. 17 already testi?ed to? 18 Q. Were you aware that she had spoken with Matt Sikora to 1B A. No. 19 find out whether she could talk to the mayor about this 19 Q. Do you recall her asking you who had informed you or who 20 federal investigation? 20 had you spoken to with respect to the feds? 21 A. I don't remember. 21 A. Idon't remember. 22 Q. Were you advised by Matt Sikora to call Karen to discuss 22 Q. Do you recall using the terminology "the feds" with her in 23 the federal investigation with her? 23 this conversation? 24 A. I'm not sure if she called and left me a message on the 24 A. I don't know my speci?c use. I'm sure it was federal 25 29th and I called her back or if she called me directly. 25 authorities or something along those lines. Page 37 to 40 of 88 (574) 288-4242 Michael Schmuhl July 30,2013 Page 41 Page 43 1 Q. Do you recall her saying anything about the authorities 1 A. I spoke with the mayor about it, just that she was still 2 telling her that she Was only a witness -- 2 working for the city, but that she had taken time off. 3 A. No. 3 That's it. 4 Q. -- in their investigation? 4 Q. And that's the only issue you spoke with the mayor about 5 MR. SULLIVAN: Excuse me. Counsel. Your question 5 between those two dates? 6 was whether he told -- 6 A. Uh-huh. 7 MR. DUERRING: No, Karen told him that she was 7 Q. When was the determination made that she should be 8 only a witness. 8 terminated? 9 MR. SULLIVAN: Sony. 9 A. From that meeting after the 23rd, it was the clear 10 BY MR. DUERRING: 10 indication that we had to head in that direction. I don't 1 1 Q. How do you recall ending that conversation with Karen? 11 recall when the ?nal decision was made. 12 A. The telephone conversation? 12 Q. Who made that ?nal decision? 13 Q. Yes. 13 A. The mayor. 14 A. Or the meeting? Again, at the very end of that 14 Q. Okay. I'm assuming somehow the mayor had to communicate 15 conversation, she said, may just resign by the end of 15 that decision to you? 16 today. I mayjust resign. I may quit." And, again, 16 A. Uh-huh. 17 sensitive,I listened to that. I said, "You know, this is 17 MR. SULLIVAN: Is that a yes? 18 a very dif?cult situation, but that might be for the 18 A. Yes. 19 best." And that's how we le? that conversation. 19 Q. When was that communication? 20 Q. You said that she apparently went on vacation. And then 20 A. I don't know. I don't remember. 21 when she came back, there was, again, contact between the 21 Q. How was that communicated? Was it by phone, by fax, by 22 two of you? 22 e?mail -- 23 A. Yes. 23 A. It would be face to face. 24 Q. Do you recall any time between the time you ?rst spoke 24 Q. -- by tweeting? 25 with her on the phone that we talked about and then 25 A. Face to face. Page 42 Page 44 1 meeting with her again that she advised that she had 1 Q. Face to face, the old fashion kind. 2 retained legal counsel? 2 Was anyone else besides you and the mayor present at 3 A. I believe right beforeI met her again, she had retained 3 that meeting? 4 legal counsel. 4 A. I don't recall. 5 Q. When do you recall meeting with her again? 5 Q. Tell me about that meeting. 6 A. I believe it was early to mid April. I believe the 5th, 6 A. I don't remember the details of the meeting. Again, it 7 but it could be the following week. 7 may have been just a Eace-to-face exchange between the 8 Q. If her recollection would have been April 10th, would that 8 mayor and myself. 9 fall within your -- 9 Q. Did you make any additional recommendations to the mayor 10 A. Yeah. 10 as to what he should do at that meeting with respect to 11 Q. -- timeframe? 11 Karen's employment? 12 A. Probably, yeah. 12 A. No. 13 Q. Did you meet with her on that day? 13 Q. What did the mayor tell you at this meeting as it relates 14 A. On or around that day, yeah. 14 to Karen? 15 Q. What was the purpose of that meeting? 15 A. That she could no longer be director of communications. 16 A. The purpose of the meeting was to outline the ?ndings of 16 Q. Okay. Did he say anything else with respect to that? 17 the federal authorities into the investigation of the 17 A. Huh?uh. 18 South Bend Police Department. It was also to talk about 18 MR. SULLIVAN: Is that a no? 19 her employment with the city and to seek her resignation. 19 A. No. Sorry. 20 Q. Between March 29th, saying that that was the day that you 20 Q. And I can?t -- I'm assuming I hate assuming, but I'm 21 had the telephone conversation with Karen, and April 10th, 21 assuming that meeting took place sometime between the 29th 22 if, in fact, she's accurate on that being the date that 22 of March and the 10th of April, if those are accurate 23 you next spoke with her -- 23 dates. 24 A. Yeah. 24 A. Could have been before the 29th of March. 25 Q. -- did you speak with anyone about her employment status? 25 Q. Okay. Midwest Reporting. Inc. (574) 288-4242 Page 41 to 44 of 88 Michael Schmuhl July 30, 2013 Page 45 Page 47 1 A. Between the 23rd and -- actually between the 23rd and the 1 Q. You had mentioned something earlier on. You used the 2 29th whenI talked to her on the phone because my 2 phrase "due diligence." Iwant to go back to that. What 3 commentary in that telephone conversation was I needed to 3 did you mean by that? 4 meet with her, we needed to talk about an employment 4 A. That in that meeting with the US. Attorney and the FBI, 5 issue. 5 they outlined some areas in the recording of telephone 6 And so between the 23rd, that's a Friday, to the 6 lines where we were out of compliance with federal 7 29th, that would have been the directive from the mayor. 7 regulations, and that one of the results of that meeting 8 Q. What occurred at the next meeting with Karen, which would 8 was that we had to -- that we had problems with two people 9 have been that, say, April 10th -- 9 in the city administration and that we needed to update 10 A. April 10th. 10 our telephone recording policies and make sure that there 11 MR. SULLIVAN: If April 10th is the accurate 11 Were clear guidelines over appropriate use. 12 date. 12 And the mayor obviously wanted us to be fully 13 MR. DUERRING: You're right. 13 compliant with all laws and all regulationscalled her into the County-City Building. We met in a 14 worked with members of the legal department and the police 15 conference room on the 14th floor. Interim Chief Chuck 15 department to see what lines were recorded and why because 16 Hurley was present, as was Special Counsel Richard Hill, 16 the federal authorities outlined a use that was improper. 17 myself. As I did over the telephone with her, I outlined 17 And I wanted to, first of all, see what the proper 18 that the US. Attorney's of?ce, FBI conducted an 18 recording techniques were and what was compliant with the 19 investigation into the recording practices in the South 19 law. And that included and still includes 911 and 20 Bend Police Department. 20 emergency dispatch calls and calls into the front desk at 21 They found that we were out of compliance with 21 the South Bend Police Department. 22 federal guidelines and that the administration had decided 22 And so the administration wanted to make sure that we 23 to take two personnel actions, the ?rst being former 23 were still recording the lines that were necessary for law 24 Chief Boykins and the second being Ms. DePaepe. I 24 enforcement activity and that we were not recording the 25 informed her that she could no longer hold that position. 25 lines that were discussed in the meeting with federal Page 46 Page 48 1 I gave her the opportunity to resign. She refused to 1 authorities. Very two distinct issues there. 2 resign. And I said if you refuse to resign, unfortunately 2 Q. So that's what you meant by due diligence? 3 we'll have to terminate you. AndI remember 3 A. Yeah. So I wanted to see, learn for myself what lines are 4 that she said I want you to terminate me, and that was 4 being recorded in the South Bend Police Department and 5 about everything I recall from that meeting. 5 why. 6 Q. Do you recall whether or not there was any discussion by 6 Q. Okay. And what did you learn? 7 anyone present at that meeting informing Karen that if she 7 A. That we record 911 telephone calls, emergency dispatches, 8 talked about anything that was going on she could be 8 and that we record calls that come into the front desk of 9 arrested? 9 the South Bend Police Department. 10 A. No. 10 Q. How did you learn that information? 11 Q. Do you recall any discussion being made about whether or 1 1 A. Received material from the South Bend Police Department in 12 not she would get unemployment compensation? 12 conjunction with the city's legal department. 13 A. I don't remember. 13 Q. And was that what you thought or what you believed was 14 Q. Why was Chuck Hurley present, if you know? 14 being done at the time this investigation took place? 15 A. Ultimately, the chief of police, interim chief of police, 15 A. Yeah. I thought that 91 and dispatch calls were being 16 would have to sign, I believe, a personnel document 16 recorded. I did not know the details of the front desk 17 relating to her employment; and so he was present for that 17 line calls. 18 purpose. 18 MR. SULLIVAN: We're coming up on noon. ljust 19 Q. Did -- 19 didn't know what your thought was about lunch and how 20 A. I believe. 20 much longer, pushing through, whether you want to 21 Q. Did Chuck Hurley have any input with respect to the 21 break now. 22 decision to terminate Karen?s employment? 22 MR. DUERRING: I'd like to push through. I can?t 23 A. No. 23 imagine it can be that much longer. Does anybody 24 Q. Was that the last time you spoke with Karen? 24 need a break? 25 A. Yes. 25 MR. SULLIVAN: Yeah. Page 45 to 48 of 88 (574) 288-4242 Michael Schmuhl July 30, 2013 Page 49 Page 51 1 (Recess taken.) 1 copies. 2 BY MR. DUERRING: 2 (Exhibit 1 marked for identi?cation.) 3 Q. Before we took a break, Mr. Schmuhl, we were discussing 3 Q. Mr. Schmuhl, you've been handed a two-page document that's 4 about what you learned concerning, I guess, the logistics 4 been marked for identi?cation purposes as Exhibit 1. I'd 5 of the recording policies for what lines were recorded. 5 ask you to review that and let me know when you're done 6 And Ijust want to really take some time and discuss with 6 reviewing it. 7 you what you learned and from whom you learned it. All 7 A. Okay. 8 right. 8 MR. SULLIVAN: Just show an objection. June 6, 9 Just coming right out of the box, did you ever talk 9 2012, is well a?er termination. And I think all the 10 to Karen DePaepe about how the recording system worked? 10 questions regarding his inquiry into the system, it's 11 A. I don't recall. 11 all well after termination has taken place. So I 12 Q. Who did you talk to about how the recording system worked? 12 don't understand how it comes within the scope and is 13 A. I remember speaking with primarily legal counsel with the 13 reasonably calculated to lead to discovery of 14 City of South Bend, Andrea Beachkofsky, assistant city 14 admissible evidence in regard to this case. 15 attorney. 15 MR. DUERRING: Well, I'm discussing with him his 16 Q. Why, if I may ask, did you chose to Speak with Andrea 16 knowledge of and what he learned about the recording 17 Beachkofsky about the recording system at the South Bend 1? practices that occurred. The letter that's marked as 18 Police Department? 18 Exhibit I speci?cally, apparently sets out 19 A. She serves as the legal counsel for the public safety 19 information regarding which lines were recorded and 20 units of the City of South Bend. And this issue in 20 when they were recorded. And that?s why I'm asking 21 changing a policy, I wanted to make sure we had a lawyer 21 him about that. 22 looking at all the legal considerations. 22 I intend to ask him about that particular 23 Q. Were you seeking legal advice from her regarding this 23 correspondence, where that information came from, did 24 issue or were you seeking information about how the system 24 that information come from him. So I'm asking him 25 worked? 25 about what he learned. And I don't believe we had Page 50 Page 52 1 A. I would say both. 1 had, as of yet, a timeframe. It was my impression 2 Q. Speci?cally with regard to information concerning the 2 that he was learning as part of this due diligence 3 functioning of the system, what did she tell you? 3 practice how the system worked and that this occurred 4 MR..SULLIVAN: Object. I'll instruct him not to 4 sometime between March 23rd and April 10th. 5 answer. It's clearly a communication that is for the 5 MR. SULLIVAN: Iheard it dlfferently, But I 6 purpose of legal advice, and I'm going to instruct 6 think we probably need the witness to clarify that 7 the witness not to answer about any communication 7 because I think it makes a difference. I will 8 with Ms. Beachkofsky as long as there was no other 8 withdraw my objection if it's in that time?ame. 9 third party present. But if there was someone else 9 MR, DUERRING: Let me ask him the question then. 10 from the city present or it's just you and she, I 10 BY MR. DUERRING: 11 would instruct you not to answer that question. 11 Q. Mr. Schmuhl, when you referred to taking this action in 12 MR. DUERRING: Are you taking Mr. Sullivan's 12 learning about the recording practices, if you will, what 13 advice and not answering the question? 13 lines were recorded and why they were being recorded, when 14 THE WITNESS: Yeah. 14 did that educational process take place? 15 MR. DUERRING: I'd like to certily that question. 15 A. Following the meeting with federal authorities. 16 BY MR. DUERRING: 16 Q. And before the ?nal meeting with Ms. DePaepe? 17 Q. Did you speak with anyone else with respect to gaining 17 A. I don't remember. 18 information on how the recording system functioned besides 18 Q. Could it have been within that timeframe? 19 Andrea Beachkofsky? 19 A. I don't know. 20 A. I don't remember. 20 Q. Then I'm going to ask him questions about it. 21 Q. Okay. Did you obtain any or review any manuals or 21 MR. SULLIVAN: I withdraw the objection. 22 documents with respect to how the voice recording system 22 MR. DUERRING: All right. 23 worked? 23 Q. And I take it, Mr. Schmuhl, you?ve had occasion to 24 A. I don't remember. 24 thoroughly review Exhibit 1, correct? 25 Q. I only have one copy, so we're going to need to make 25 A. Yes, I've read it. Midwest Reporting, Inc. (574) 288?4242 Page 49 to 52 of 88 Michael Schmuhl July 30, 2013 Page 53 Page 55 1 Q. Have you seen that correspondence prior to today? 1 information came ?om on Exhibit 1 concerning the lines 2 A. I wrote it. 2 that were recorded? 3 0. That answered my second question. I'm assuming you wrote 3 A. Yes. 4 it and then the mayor signed it? Because I think -- 4 Q. Did it refresh your recollection? 5 MR. SULLIVAN: Exhibit 1 isn't signed, Counsel. 5 A. It did. 6 A. It's unsigned. It's a draft. 6 Q. Where did you get the information that you placed in this 7 Q. There's a signature line. 7 letter that's been marked as Exhibit 1? 8 A. Right. 6 A. I drafted an e-mail, wrote an e-mail to Aladean DeRose, 9 O. For the mayor? 9 interim city attorney, and Mayor Buttigieg on this issue; 10 A. Mayor reviews correspondence, any correspondence, 10 and that meshes with the request from counsel. So I was 11 obviously, before placing his signature on it. 11 looking into this information sometime in late May, early 12 Q. Now, the information as it relates in that correspondence 12 June. 13 with respect to which lines were recorded, where did you 13 MR. SULLIVAN: And then if I may, Counsel, the 14 get that information? 14 speci?c question about the source of the information 15 A. I don't remember. 15 that y0u put in here. Did you see anything that 16 Q. Is there anything that you have, any documents, any 16 helped you remember the source of the information 17 e-mails, any notes or correspondence that you would have 17 that you put in here? 18 that you could review in order to help refresh your 18 THE WITNESS: I did not see anything that would 19 recollection of where you obtained that information? 19 give me the source. 20 A. I provided material relating to the policy changes in the 20 MR. SULLIVAN: Do you know the source of the 21 South Bend Police Department to my legal counsel. 21 information? 22 Q. Okay. Would those -- reviewing that information, would 22 THE WITNESS: I don't know. To be speci?c,I 23 that help refresh your recollection as to where you 23 don't know. 24 obtained the information that you placed in this 24 BY MR. DUERRING: 25 correspondence? 25 Q. Okay. What I glean from your answer then, Mr. Schmuhl, is Page 54 Page 56 1 A. Probably. 1 -- and, again, I'm sure you'll correct me ifI'm wrong -- 2 MR. DUERRING: Do you know where we have that 2 that the information you placed concerning the recording 3 around here, where we could take a break and he could 3 practices and which lines were recorded and when they were 4 take a look at it? 4 and when they weren't, as detailed in Exhibit 1, that 5 MR. SULLIVAN: I think you'll have to make a 5 information did not come to you until after the 6 document request so that we can evaluate and respond 6 termination of Karen DePaepe; is that correct? 7 accordingly. I'm not going to produce documents on 7 A. That's correct. 8 the 8 Q. Did you take any steps between the meeting with the 9 MR. DUERRING: I'm not asking you to produce 9 federal authorities that occurred on March 23rd, 2012, and 10 them. I'm asking if he can have the opportunity to 10 the meeting that you had with Karen on April, say, 10th or 11 review them. I don't need to look at them. As long 11 thereabouts that terminated her, did you take any steps to 12 as they refresh his recollection, I don't care what 12 learn what the practices and what the functions were of 13 they say, right now. 13 the recording system? 14 MR. SULLIVAN: Let me take a break and talk to 14 A. No. 15 him. 15 Q. Did anyone volunteer between that period of time again, 16 MR. DUERRING: Okay. 16 the 23rd of March and April 10th, assuming those are the 17 (Recess taken.) 17 correct dates, did any person come up to you and volunteer 18 (Read back.) 18 information about the system to y0u, without your request? 19 BY MR. DUERRINGwhen we broke, you mentioned that there was some 20 Q. Did you get any anonymous information about the system 21 possible documents you could review in order to refresh 21 between those two periods of time? 22 your recollection; is that correctrecollection, no. 23 A. Yes. 23 Q. Did you hear what is referred to as gossip or rumors 24 Q. All right. Have you been able to review anything that 24 conceming how the system worked or didn't work between 25 refreshes your recollection with respect to where this 25 that period of time? Page 53 to 56 of 88 (574) 288-4242 Michael Schmuhl July 30, 2013 Page 57 Page 59 1 A. You always hear gossip and rumors. 1 A. Because of the meeting that was held with the federal 2 Q. Especially from the police department? 2 authorities. 3 A. Especially from the police department, butI don?t recall 3 Q. Can you recall speci?cally who told you that during the 4 speci?cally anything. 4 meeting? 5 Q. Was there ever a discussion that you had with the mayor 5 A. It was either Mr. Capp or Mr. Schmid. 6 speci?cally about trying to learn this information to 6 Q. And they -- one of the two told you that in order to be in 7 either con?rm or not con?rm what the federal authorities 7 compliance, at least one party to the conversation had to 8 were telling you? 8 consent to having a conversation being recorded? 9 A. Iremember, you know, the mayor issuing a directiVe and 9 A. Yeah. Yes. 10 mySelf issuing a directive that we needed to stop the 10 Q. They didn't talk to you about any other exceptions that 11 recording of certain telephone lines as soon as possible 11 exist in the Wiretap Act, if any? 12 following the meeting with federal authorities. In that 12 A. In that meeting, no. 13 meeting it was Very clear that we were out of compliance 13 Q. I may have asked this question. I'm kind of lost whether 14 through the recording of certain telephone linesnot. Just to clarify, between the date of March 15 concern to the mayor, he issued a directive to make sure 15 23rd, 20I2, and April 10th, assuming those are the correct 16 we were within the law, that we're no longer recording 16 dates that the meeting with the feds occurred and the 17 people's conversations without their knowledge. And so 17 meeting occurred when she was terminated, between those 16 the mayor issued that directive, and I made sure that it 18 two periods of time, it's my understanding you did not -- 19 was followed through. 19 you were not aware or did not conduct any independent 20 Q. Was it your impression alter the meeting with federal 20 investigation to become aware of how the system, recording 21 authorities that in order to be in compliance with -- I 21 system worked; is that correct? 22 guess we're talking in general with the federal wiretap 22 A. That's correct. 23 statute. I forget what it?s called, but that's what we 23 Q. And that includes not asking Karen, the director of 24 call it. That in order to be in compliance and that the 24 communications, how the system worked, correct? 25 only way to be in compliance was to be sure that everyone, 25 A. That's correct. Page 58 Page 60 1 or at least one of the parties to the phone conversation 1 Q. Was it your understanding based upon the meeting with the 2 had to consent to the recording or be aware of the 2 U.S. Attorney and the federal authorities that the 3 recording? Is that what your understanding was? 3 recording practices that were in existence when these 4 MR. SULLIVAN: Objection to the extent it calls 4 phone conversations were recorded were basically 5 for a legal conclusion. You may answer. 5 controlled by the chief of police? 6 A. From the meeting from the 23rd? 6 MR. SULLIVAN: Hold on. Would you read back that 7 Q. Yes. 7 last -- A. Can you repeat your question? 8 (Read back.) 9 MR. DUERRING: Can you read it back? 9 MR. SULLIVAN: Go ahead. 10 (Read back.) 10 A. My recollection ??om that meeting was that the federal 11 A. You know, it was my understanding that listening to those 11 authorities outlined a practice that certain lines were 12 conversations was wrong, making recordings of those 12 recorded at the chief?s discretion by the director of 13 conversations was wrong, copying those recordings is 13 communications, so an order from the chief a request from 14 wrong, and using that material was wrong. And so it 14 the chief to the director of communications to do that. 15 wanted to stop all four of those things. 15 Q. Okay. Were you aware or did you become aware between that 16 Q. Why -- 16 period of time, again, the 23rd of March and the 10th of 17 A. And I don't recall, you know -- one party consent is the 17 April, that the director of communications was 16 law, I believe, in Indiana. Again, I'm not a lawyer. And 18 subservient, that position was subservient to the chief of 19 I'm not sure if I learned that when I -- when I learned 19 police? 20 that. It would be in the meeting. Yeah. Because if 20 MR. SULLIVAN: Objection, vague, "subservient." 21 you're not privy to that conversation, it's wrong. 21 Go ahead. 22 Q. That's -- was that an understanding you derived from your 22 A. In that timeframe? 23 own research or was that an understanding you derived 23 Q. Yeah. Do you understand the question? 24 alter the -- or because of the meeting that was held with 24 A. Meaning that she reports to the chief? 25 the federal authorities? 25 Q. And the chief, if the chief directs her to do something, Midwest Reporting. Inc. (574) 288?4242 Page 57 to 60 of 88 Michael Schmuhl July 30, 2013 Page 61 Page 63 1 that's something that she has to do. That's her boss, in 1 2 other words? 2 3 A. Yeah, the chief of police is the head of the police 3 4 department. 4 5 Q. And were you aware of that chain of command during that -- 5 6 A. During that period of time? 6 7 Q. Yes. 7 8 A. Yes. 8 9 Q. Was there any consideration in your discussions with the 9 10 mayor regarding Karen?s employment that if the chief was 10 PAGE 63 IS DESIGNATED 11 ordering her to do something that she had to do it? In 11 EYES ONLY 12 other words, if she was following orders, was there a 12 13 consideration with respect to that? 13 14 MR. SULLIVAN: Objection, vague. You mean 14 15 consideration prior to termination? 15 16 MR. DUERRING: Right. 16 17 MR. SULLIVAN: With the mayor? Go ahead. You 17 18 can answer. 18 19 BY MR. DUERRING: 19 20 Q. As somewhat of a mitigating circumstance when dealing with 20 21 whether she was going to be terminated or not. 21 22 A. I don't remember. 22 23 Q. At any point in time between those two dates that we've 23 24 been talking about, March 23rd and April 10th, Was there 24 25 any discussion with reapect to the contents of the 25 Page 62 Page 64 1 recording -- recorded conversations? 1 2 A. Yes. 2 3 Q. And who was that with? 3 4 A. Myself and Karen. 4 5 Q. Okay. Did you speak about those contents with anyone 5 6 else? 6 7 MR. SULLIVAN: You mean after -- 7 Q. Yeah. After your conversation with Karen obviously. 8 9 A. Yes. 9 10 Q. Who was that? 10 PAGE 64 IS DESIGNATED 11 A. The mayor. 11 EYES ONLY 12 Q. And that was prior to April 10th; is that correct? 12 13 A. Yes. I spoke with Karen about that when we spoke on the 13 14 phone on or about the 29th of March. 14 15 Q. And you conveyed that information to the mayor prior to 15 16 April 10th, correct? 16 17 A. Justvery brie?y, uh-huh. Karen said that, again, when 17 18 she was talking about other of?cers on the force and 18 19 defending the chief; she said that there Were individuals 19 20 on the telephone calls making derogatory and disrespect?il 20 21 comments to not only the chief, but also to the mayor. 21 22 And Ijust told him brie?y as an aside that she mentioned 22 23 that. 23 24 (Pages 63 and 64 are designated as Attorneys' 24 25 Eyes Only.) 25 Page 61 to 64 of 88 (574) 288-4242 Michael Schmuhl July 30. 2013 Page 65 Page 67 1 BY MR. DUERRING: 1 all I know. 2 Q. During any point in time -- again, we appear to be talking 2 Q. Did you know whether or not that included the South Bend 3 about the timeframe between March 23rd and April 10th. 3 Police Department? 4 Did you convey to Karen anything that you would -- that 4 A. I don't recall. 5 you felt that criminal charges would result if she did or 5 Q. Did you have any other meetings or conversations with 6 didn't do anything? 6 David Capp or Donald Schmid or any other representative 7 MR. SULLIVAN: Objection, vague, complex. Go 7 from the federal government after the March 23rd meeting? 8 ahead. 8 A. Yes. 9 A. In the meeting thati had with her on or around the 10th 9 Q. Who did you speak with? 10 in seeking her resignation and ultimate termination, I did 10 A. Since that time I've spoken with Ken Hayes and David Capp. 11 say that the federal authorities informed the City of 11 Q. When did you Speak with Mr. Hayes? 12 South Bend that if the city did not take care of this 12 A. I spoke with Mr. Hayes --I don't recall when. I believe 13 issue within 60 days, that they would reopen the 13 I talked to him a couple times. 14 investigation. I told her that there was a potential risk 14 Q. But you don't remember when? 15 that if they reopened this investigation, that two 15 A. I don't remember when, no. Last time I spoke with 16 individuals who were the focus of that investigation could 16 Mr. Hayes was toward the end of my time as chief of sta??. 17 be in trouble. 17 I met with him to discuss the mayor's antiviolence 18 Q. Is that the wording you used, "could be in trouble," or 18 commission using federal authorities to assist the South 19 did you use any other wording? 19 Bend Police Department and the City of South Bend combat 20 A. I don't recall speci?c Wording I used. 20 gun violence and youth violence in our community. 21 Q. Were there any documents or documentation made of that 21 And I remember I did have a conversation with Ken 22 meeting that occurred on April 10th with Karen? 22 Hayes as it relates to the recording of telephone lines. 23 A. Not to my knowledge, no. 23 And I don't know when that was. But the outcome of that 24 Q. Again, in that same time??ame we've been talking about, 24 conversation was that Mr. Hayes said that they did not 25 March 23rd to April 10th, did you leam who speci?cally 25 need anything additionally from the City of South Bend. Page 66 Page 68 1 authorized the phone line to be recorded that was the 1 I don?t remember the details of why I called him. 2 product of these recordings? 2 I'm not sure if the subpoena was still open or if I wanted 3 A. No. 3 to make sure that he knew we were in compliance, just to 4 Q. Between that period of time, same period of time, did you 4 sort of get some recognition from federal authorities that 5 have any discussions with any companies that supplied 5 they knew that we took these issues seriously and we 6 equipment to the city police department as it relates to 6 addressed them. 7 the voice recording system? 7 Q. And you mentioned -- and do you remember when that phone 8 A. I don't believe so, no. 8 conversation would have occurred? 9 Q. Did you learn of any procedure on how the lines would be 9 A. I don't recall, no. 10 recorded between that period of time? 10 Q. What about Mr. Capp? You mentioned you spoke with him. 11 MR. SULLIVAN: You mean technically? 1 1 A. Uh?huh. There was intense media scrutiny surrounding this 12 MR. DUERRING: Yes. 12 case. I reached out to Mr. Capp to inquire if we could 13 A. No. In the reverse. We were trying to cease the 13 direct media attention toward his of?ce because a number 14 recording of certain lines. 14 of the media inquiries related to the investigation and 15 Q. Do you know how that was done? 15 what they found and who was involved and who was targeted. 16 A. No. 16 I spoke to Mr. Capp, and he informed me that his press 17 Q. There was already a procedure that was in place wherein 17 person or communications person would be the appropriate 18 the system was being changed. Were you aware of that, in 18 person to direct media to, gave me her telephone number. 19 this time?'ame? 19 And that was one conversation. 20 MR SULLIVAN: Objection, vague. You mean 20 I also spoke to Mr. Capp around the same timeI spoke 21 Q. The yes. 21 to Mr. Hayes. Mr. Capp -- I'm not sure who called who -- 22 A. I knew that the Voiceover IP transition was occurring 22 was just Con?rming with me that he and his o?ice would 23 throughout the city administration, thousands of phones. 23 join the mayor's antiviolence commission. And we had a 24 That started under the Luecke administration and was 24 brief conversation about that Commission, its work, the 25 continuing into the Bultigieg administration. But that's 25 commitment to it, who else would be involved. And he was Midwest Reporting, Inc. (574) 288-4242 Page 65 to 68 of 88 Michael Schmuhl July 30, 2013 Page 69 Page 71 1 very supportive of the commission and its work. And that 1 MR. SULLIVAN: There's a lot of technology a lot 2 was the last time 1 spoke with him on the phone. 2 of us old guys don't know too well. 3 Q. Was any part of that conversation that you just referred 3 MR. DUERRING: I won't even show you my phone. 4 to relative to the recording issues or the wiretap issue? 4 THE WITNESS: Because -- yeah. 5 A. No. 5 BY MR. DUERRING: 6 Q. So as I understand it, the only time you spoke to Mr. Capp 6 Q. Is there anything else that was discussed during that 7 alter the March 23rd meeting as it relates to the 7 meeting with the U.S. Attorney and the federal authorities 8 recording practices was when you were asking him if you 8 that you recall that we haven't talked about today? 9 could direct media to his of?ce; is that correct? 9 MR. SULLIVAN: Objection, vague. Go ahead. 10 A. Yes. 10 A. No. 11 Q. And did you speak about any of the substance about the 11 Q. And my understanding is that since that meeting, the only 12 recordings or about what was being said in the meeting at 12 two individuals that you've talked to from the U.S. 13 that time? 13 government would have been Ken Hayes and David Capp, 14 A. I don't recall. 14 correct? 15 Q. To your knowledge, did the mayor ever meet personally with 15 A. Yes. 16 Mr. Capp regarding this issue? 16 Q. Did you ever learn about how the federal authorities got 17 A. Personally? 17 involved in the investigation or what caused the 18 Q. Yes. 18 investigation to start? 19 A. In person, no, I don't think so. 19 A. Yes. Certain police of?cers approached the FBI with some 20 Q. To your knowledge, did the mayor ever speak to Mr. Capp in 20 complaints to look into that issue. 21 any form of communication? 21 Q. How did you learn that information, or from where did you 22 A. I remember that the mayor and Mr. Capp and I did have a 22 get that information? 23 telephone call. 23 A. Two of the officers came to my office in the County-City 24 Q. Do you remember when that call was? 24 Building to complain early on in our time in of?ce, in 25 A. I do not. 25 January, to say that they thought their personal telephone Page 70 Page 72 1 Q. And what was the substance of that conversation, the 1 conversations were being recorded and that the chief of 2 telephone conversation? 2 police was listening to those conversations. 3 A. I don't remember. 3 Q. Who were they, the two of?cers? 4 Q. Did it have to do with the investigation into the 4 A. They were Steven Richmond, the detective bureau chief, and 5 recording practices? 5 Brian Young, who was also in the detective bureau. 6 A. I don't know. I think so, butI don't remember. 6 Q. Okay. Do you recall if anyone else besides -- were they 7 Q. Do you remember what the results of that conversation 7 both reporting to you at the same time or did you speak 8 were? 8 with them independently? 9 A. No. 9 A. Both at the same time. 10 Q. Do you remember who initiated the phone call? 10 Q. Was anyone else present during this conversation that you 11 A. I believe our of?ce initiated the phone call. 11 had with these of?cers? 12 Q. Do you remember what the purpose of the phone call wasdon't. 13 Q. Do you remember about when this information came to you? 14 Q. And you don't know whether this phone call was made before 14 A. On or around January 18. 15 or after Karen was terminated? 15 Q. How do you remember that so specifically? 16 A. I don't remember. 16 A. Steven Richmond e?mailed me following the meeting to thank 17 Q. Do you remember any part of that phone conversation? 17 me for meeting with him and said -- and sort of 18 A. I remember seeing David Capp on my iPhone. That's it. I 18 re-outlined what he said in the meeting and also said in 19 talked to a lot of people. 19 that message that he was thinking of taking their 20 Q. Do you know whether any notes were made of that meeting? 20 complaint to an investigative authority. 21 A. I don't think so. 21 Q. What did you do as a result of this information? 22 Q. So you're able to see him On your phone. Was there anyone 22 A. I told the mayor about it, and that's about it. I 23 behind him? 23 absorbed the information. 24 MR. SULLIVAN: Do you mean you saw him? 24 Q. Do you know if the mayor took any steps or any action? 25 THE WITNESS: I saw his name. 25 A. We didn't have to. A day or two later I got a call from Page 69 to 72 of 88 (574) 288-4242 Michael Schmuhl July 30, 2013 Page 73 Page 75 1 David Capp saying that they were going to look into some 1 police for South Bend Police Department? 2 issues in the South Bend Police Department. 2 A. Before that, before the new year a decision was madepersonal call from David Capp? 3 Q. And that decision was what? 4 A. Yes. 4 A. That Darryl Boykins would remain as chief of police for 5 Q. What speci?cally did he say? 5 the South Bend Police Department. 6 A. He said that we've received some complaints in the South 6 Q. Was it not true that Mr. Corbett was being considered for 7 Bend Police Department about the recording of lines, we 7 that position? 8 think there's something there, and we're going to look 8 A. Yes. 9 into it. 9 Q. And obviously he was rejected? 10 Q. But before you got that call, you didn't take any steps on 10 A. Yes. 11 behalf of the city to look into it? 11 Q. Was it also not true that Mr. Richmond was being 12 A. No. 12 considered for that position? 13 Q. Besides the information that you received from 13 A. Yes. 14 Mr. Richmond and Mr. Young, did you receive any other 14 Q. And he was also rejected? 15 information? 15 A. Yes. 16 MR. SULLIVAN: Objection, vague. Go ahead. 16 Q. Was Mr. Young being considered for that position? 17 A. As it relates to the recording of the telephone lines? 17 A. No. 18 Q. Yes. 18 Q. Was there anyone else being considered for that position 19 A. Yes. Ihad a meeting with Tim Corbett on or around the 19 besides Mr. Richmond and Mr. Corbett other than obviously 20 same time, and he complained as well about the same 20 Mr. Boykins? 21 is sues. 21 A. No, those were the three candidates for the job. 22 Q. When was that meeting? 22 Q. Were any of the conversations you had with Mr. Corbett, 23 A. I don't recall. 23 Mr. Young or Mr. Richmond, did they ever explain to you 24 Q. What speci?cally did he complain about? 24 their belief on how these phone lines were being recorded? 25 A. That he thought that former Chiet?Boykins was listening to 25 A. During the transition into of?ce? Page 74 Page 76 1 private telephone conversations with certain of?cers on 1 Q. Well, when you had -- when Mr. Richmond and Mr. Young came 2 the police force. 2 to you, was there anything that they told you about how 3 Q. What else did he say? Did he say how he knew that? 3 they thought -- or why they thought their lines were being 4 A. No. 4 recorded or any discussion by them, well, this did you just listen? 5 system works and this is what is done? 6 A. Ijust listened. 6 MR SULLIVAN: Objection, compound. Go ahead. 7 Q. Was that before or a?er Richmond and Young had come to 7 A. You mean in the technical aspect of how the system works? 8 you? 8 Q. Yes. 9 A. I don't recall. 9 A. No. 10 Q. Was that before or after David Capp had called you? 10 Q. Did Mr. Richmond -- do you recall him telling you why he 11 A. I don't recall. 11 thought his line was recorded? 12 Q. Do you recall anything that you said to Mr. Corbett 12 A. I don't recall. 13 after -- or during the meeting? 13 Q. Okay. How about from Mr. Corbett, did he expound upon 14 A. Anything that I said to him? 14 things? 15 Q. Yes. 15 A. He did, but not related to that issue. 16 A. No. 16 Q. But not about this particular issue? 17 Q. Do you remember doing anything speci?c, taking any action 17 A. On the technical aspects ofthe system, no. 18 or inforruing anyone of that meeting with Mr. Corbett a?er 18 Q. What did he expound upon? Did it relate to why he thought 19 the meeting? 19 things were going on? 20 A. I don't think so, no. 20 A. He just stated to me that he thought that Chiet?Boykins 21 Q. Anyone else come to you and complain or discuss with you 21 was listening to telephone conversations of of?cers, 22 the recording practices? 22 private conversations, and that he thought that was wrongthought that? 24 Q. During January of 20 12, had the mayor's of?ce made a 24 MR. SULLIVAN: Objection, asked and answered. Go 25 decision with respect to who was going to be the chief of 25 ahead. Midwest Reporting, Inc. (574) 288?4242 Page 73 to 76 of 88 Michael Schmuhl July 30, 2013 Page 77 Page 79 1 THE WITNESS: What did you say? 1 "Cassette tapes you put in a tape deck?" And they said, 2 MR. SULLIVAN: I said asked and answered. 2 "Yes, cassette tapes." And that's about as technical as I 3 A. I don't recall. 3 remember. 4 BY MR. DUERRING: 4 Q. Prior to Karen being terminated, did you or -- were you 5 Q. Well, what speci?cally do you recall Mr. Corbett telling 5 aware of anyone reviewing her personnel ?le? 6 youwas upset and he was mad. He thought the chief was 7 Q. Prior to her being terminated, did you speak with anybody 8 listening to personal or private conversations of 8 about Ms. DePaepe's performance with the city? 9 of?cers, people that he knows and works withsaid that somebody should look into it, should have an 10 Q. Since then, have you spoken with anybody about it? 11 investigation. That's about it. 11 A. Her performance? 12 Q. Did he ever indicate to you that he believed he was the 12 Q. Yes. 13 subject of any of the recorded phone conversations? 13 MR. SULLIVAN: In what timeframe? 14 A. I don't remember. 14 MR. DUERRING: Any time since April 11th. 15 Q. Is there anyone else, aside from any attorneys with the 15 MR. SULLIVAN: I'm sorry. I was unclear. 16 city, thatyou had a conversation with regarding these 16 Object. Ithink your question is vague as to her 17 issues? And I'm saying these issues concerning the 17 performance. She was a long-term employee with the 18 recording practice, the inv estigation, the complaints 18 city. So what performance are you asking -- 19 regarding those, the action taken, anyone else that we 19 MR. DUERRING: As director of conununications. 20 haven't talked about. We talked about Steve Richmond, 20 MR. SULLIVAN: Through her entire tenure? 21 Brian Young, Tim Corbett, Dave Capp, people listed in the 21 BY MR. DUERRING: 22 March 23rd meeting. 22 Q. Yes, which would have been from like 1999 I think is when 23 A. You mean from March 23rd to April 10th? 23 she took of?ce in that position. She worked for the city 24 Q. Yes. 24 prior to that. But in her tenure as director of 25 A. I don't recall. Those would be the main ones, yeah. 25 communications, did you speak with anyone concerning her Page 78 Page 80 1 Q. And my understanding is from January to April 10th, 1 performance? 2 you fundamentally took no independent action to learn 2 A. No. Between what dates? 3 about how the system worked and whether or not even it 3 Q. I think I asked you between January and April 10th and 4 could do what was being alleged to have been done; is that 4 you said no. And I'm talking -- 5 correct? 5 A. One person did call me to say that he thought Karen 6 A. No. The information that we received from federal 6 DePaepe should stay employed with the city. 7 authorities, you know, if an independent body is going to 7 Q. Do you remember when that occurred? 8 conduct an investigation, I think the FBI is pretty good 8 A. I don't remember speci?cally. I remember the person's 9 at it. So we took their report, their brie?ng at face 9 name. 10 value. And so we sought to make those personnel changes 10 Q. Who was that? 11 and those policy changes for the City of South Bend. 11 A. Lieutenant Chris Voros, who was in the services division 12 Q. It's my understanding -- and you can correct me obviously 12 of the South Bend Police Department. 13 if I'm wrong. When you had the meeting with federal 13 Q. Do you recall what he said to you speci?cally? 14 authorities, they spoke -- it sounded vaguely of being not 14 A. He basically said Karen is a good employee and that she 15 in compliance, but did they ever speak to you of how the 15 should stay. 16 system worked as it relates to why they felt it was not in 16 Q. Okay. 17 compliance? 17 A. That's it. 18 A. You mean from a technical standpoint? 18 Q. That's it. Did you say anything to him? 19 Q. Right. 19 A. No. It's a personnel matter and it's between other 20 A. Like the equipment and -- 20 parties. 21 Q. Right. 21 Q. To your knowledge, besides the input that you briefed the 22 A. -- and phones and wires and stuff like that? 22 mayor on, were there any other sources of information that 23 Q. Right. 23 were used by the mayor to make the determination that 24 A. No. The only thing technically is they said that tapes 24 Karen should be terminated? 25 were made, cassette tapes. I remember we all said, 25 A. Apart ?om the -- okay. Page 77 to 80 of 88 (574) 288-4242 Michael Schmuhl July 30, 2013 Page 81 Page 83 1 MR. SULLIVAN: Objection, lack of foundation, no 1 2 personal knowledge as to what would be in the mind of 2 3 the mayor. Subject to that, you can anSWer. 3 4 A. Apart from the federal brie?ng? 4 5 Q. Yeah. And apart from your brie?ng to him because he 5 6 wasn't present for -- apart from that, was there any other 6 7 source of information that was used by him to direct -- 7 8 I'm assuming he directed you to terminate Karen, correct? 8 9 A. Uh-huh. 9 10 Q. Was there anything that you were aware of that he Would 10 PAGE 83 IS DESIGNATED 11 have told you about in addition to what you told him that 11 EYES ONLY 12 he was saying, well, this is whyAside ?'om Steve Richmond, Brian Young, Tim Corbett, and 14 15 Chris Voros, were there any other officers that spoke with 15 16 you concerning the recording practices, Karen, Chief 16 17 Boykins, as it relates to the issues involved in this 17 1 8 lawsuit? 1B 19 A. I don't think so. 19 20 MR DUERRING: I don't think I have any other 20 21 questions. 21 22 MR. SULLIVAN: I would like to take a quick 22 23 break. Okay? 23 24 MR. DUERRING: Okay. 24 25 (Recess taken.) 25 Page 82 Page B4 1 CROSS-EXAMINATION 1 2 BY MR. SULLIVAN: 2 3 Q. Mr. Schmuhl, you remember questioning from Attorney 3 4 Duerring concerning the meeting that you had in the 4 5 mayor's of?ce on March 23rd after you met with Mr. Capp, 5 6 right? 6 7 A. Uh?hu h. 7 8 Q. Is that a yes? 3 9 A. Yes. 9 10 Q. And then there came a time where you had a discussion with 10 PAGE 84 IS DESIGNATED 11 the mayor after that that was essentially finalizing the 11 ATTORNEY EYES ONLY 12 view that you wanted to seek Ms. DePaepe's resignation or 12 13 you would terminate her. Do you remember the questioning 13 14 item that? 14 15 A. Yes. 15 16 (Pages 83 and 84 are designated as Attorneys' 16 17 Eyes OnlyMidwest Reporting. Inc. (574) 288?4242 Page 81 to 84 of 88 Michael Schmuhl July 30, 2013 Pen 85 1 P808 37 1 MR. SULLIVAN: Okay. And I have no further 2 CERTIFICATE 2 questions. Offthe record. 3 3 Id ff 1, Angela J. Galipeau, a Notary Publicthe County of Porter and State Ofindiana, do hereby 4 REDIRECT EXAMINATION 5 ?'?fyi 5 BY MR. DUERRING: That MICHAEL SCHMUHL appeared before me on 6 Tuesday. July 30. and was duly sworn or af?rmed to 6 0. Just one question. Your answers to the questions that testiiy the truth, the whole truth, and nothing but the . 7 truth to question: propoundod at the letting oftlte 7 wereJust asked of you. Mr. Schmuhl, do not tn any way Foregoing deposition in a cause now pending and 3 change or modify the answers you gave me on direct 8 undeterm "15d court; 9 examination with respect to what information you recall 9 That I Further certify that I then and there . reported the proceedings at the said time 10 Karen tailing you about the Gonl?nt 0ft?? conversation 10 and piece; that the proceedings were then transcribed from . . my original shorthand notes: and that the foregoing 11 was or ?w were, '5 that correct? 11 typewritten transcript is true and correct record 12 A. It's not changed, no. 12 thereof; 13 Q. And it doesn't change your answers in direct where you had Thatl am not a relative or employee or attorney . 13 or counsel note relative or empioyce of such attorney or 14 a conversatton With mayor that content. counsel foi any ofthe parties hereto, nor am I interested 15 correct? 14 directly or indirectly in the outcome ofthis action; 16 MR. DUERRING: [don't have any other questions. 15 IN WITNESS WHEREOF. Ihave hereunto set my hand 17 and af?xed my notarial see! this 5th day of August. 2013. Sothat was two. 16 18 MR. SULLIVAN: Itwastwo. Mr.Schmuhl. the 17 19 court reporter will type this up into a transcriptand you will have an opportunity to review that (WM- Ann I . lipe'a'u. RPR SR 21 transcript. There will be what's called an errata Not Pa 43.3?? of ttidiana . . . 20 Relid . 22 sheet Much Will allow you to note any errors In the Com Sig?i??i?yf?? iilli?Lt'lt GALIPEAU 23 transcription. 5; Porter County 24 23 . My Explres THE mass. Okay. 24 Aptil 23. 2017 25 MR. SULLIVAN: She's the best in the business. I 25 mum - - Page as 1 Page 33 . UNITED STATES DISTRICT COURT 1 don't mean to that there would be errors. But 2 NORTHERN DISTRICT OF INDIANA 2 if you find any errors in the transaription. do you 3 SOUTH BEND DIVISION 3 agree to note those in'the errata sheet? 4 KAREN DEPAEPE. i 4 THE WITNESS: Yes. Plaintiff, a 5 MR. SULLIVAN: And how do you want to handle vs Seas: No. 6 i 6 signature? He'll be in Paris. CITY SOUTH. BEND and PETE . . . 7 BUTTIGIEG Individually and in his) 7 REPORTER. I'll have done pretty qurck. official olpacity as Mayor ofthe 8 MR. SULLIVAN: So we'll review and sign. We're 8 Cl? ofSouth Bend, i 9 off the record. 9 Defendants. 10 (The deposition concluded and witness excused at 10 11 1:26 11 12 1. I. MICHAEL SCHMUHL 12 I hereby acknowledge thatl have read the foregoing 13 13 transcription regarding the ease ofKnr'Irt DoPaepe 1's Ctry 14 ome-vrtt Road. are!? tniccn Tuesday. July 30, 101.1. and 14 that the same il a true and cancel transcription eftho 15 answers given by me to the questions prapounded. except 15 for the additions or stranger. it' any, as noted on the 16 1 attached errata sheetMICHAEL SCHMUHL 9 20 SUBSCRIBED AND SWORN to 21 20 before me this?day of AD 22 21 22 Notary Public, State of Indiana 23 County 24 23 My Commission 24 25 25 Page 85 to 88 of 88 (574) 288?4242 88 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION 3 KAREN DEPAEPE, 4 Plaintiff, 5 vs )Case No. 6 CITY OF SOUTH BEND and PETE 7 BUTTIGIEG, Individually and in his} official capacity as Mayor of the 8 City of South Bend, 9 Defendants. 10 11 MICHAEL SCHMUHL 12 I hereby acknowledge that I have read the foregoing 13 transcription regarding the case of Karen DePaepe vs City of South Bend, et a1., taken Tuesday, July 30, 2013, and 14 that the same is a true and correct transcription of the answers given by me to the questions propounded, except 15 for the additions or changes, if any, as noted on the attached errata sheet. 16 17 la Mae/Mr {6,4,1 23 24 25 MICHAEL SCHMUHL SUBSCRIBED AND SWORN _to before me this ?iJ11 [pg )le Notary Public, State of Indiana County of Residence: - .-. my Commission Expires: rm H?glzz;?L WWQEL MIDWEST REPORTING, INC. 1448 Lincolnway_East South Bend, Indiana 46613 (574) 288-4242 ERRA TA SHEET Deposition of: Michael SChmuhl 30833 ag July 30, 2013 Page iLine Change To Reason For Change 8 12 aid aide f?r?iI?S s. {De/Cir ,1 9 12 aid aide m, 5 (p 04/: 21 14 NO I don't remember rep i?r (A 24 17 Katherine i3 9 28 19 I don't remember Yes rug/p 30 1 I don't remember Personnel action needsd to be! taken. 31 14 Katherine 3/1/21 5p 55 10 counsel Council 14/; 31 I6 16 No. I don't remember. I don?t remember. i 71:74 MIDWEST REPORTING, INC. 1448 Llncolnway East South Bend, Indlana 46613 (574) 288-4242 Siunature: jar/43M bun/6% Date: $51-73 ?20