Transcript of the Testimony of David Hertzberg

Date: November 15, 2013 Volume: I Case: In Re: Joplin Critical Investigation

Printed On: November 30, 2013

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David Hertzberg

In Re:

Joplin Critical Investigation

Page 1

IN RE:

JOPLIN CRITICAL INVESTIGATION

SWORN STATEMENT OF

DAVID HERTZBERG

Taken on Friday, November 15, 2013, from 11:01 a.m. to 11:49 a.m., at the law offices of Juddson H. McPherson, LLC, 626 S. Byers, in the City of Joplin, County of Jasper, State of Missouri, before SHARON K. ROGERS, C.C.R.650, a Certified Court Reporter and a Notary Public within and for the County of Jasper, and State of Missouri.

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APPEARANCES

MR. THOMAS E. LORAINE Loraine & Associates, LLC 4075 Osage Beach Pkwy., Suite 300 Osage Beach, MO 65065

tellaw@loraineandassociates.com

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S T I P U L A T I O N

IT IS HEREBY STIPULATED AND AGREED that this Sworn Statement may be taken by steno-mask type recording by SHARON K. ROGERS, a Certified Court Reporter, and afterwards reduced into typewriting. It is further stipulated that the signature of the witness is hereby waived, and that said Sworn Statement of said witness shall be of the same force and effect as though said witness had read and signed Sworn Statement.

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Page 4 I N D E X Page/Line DIRECT EXAMINATION BY MR. LORAINE . . . 5-4

E X H I B I T S

Exhibit #A.

6-10

Advice of Rights

Exhibit #27

16-1

Hertzberg documents to be provided

Note:

Exhibits in separate binder

(sic) - typed as spoken (ph.) - phonetic

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Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DAVID HERTZBERG Having been first duly sworn and examined, testified as follows: DIRECT EXAMINATION BY MR. LORAINE: Q. Mr. Hertzberg, "I wish to advise you that you are being questioned as part of an official investigation by the City of Joplin. will be asked questions related and specifically directed to the performance of your official duties of fitness for office. You are entitled to all the rights and privileges guaranteed by the laws of the Constitution of the State and the Constitution of the United States, including the right not to be compelled to incriminate yourself. I further wish to advise you that You

if you refuse to testify or to answer questions relating to the performance of your official duties, you will be subject to departmental charges, which could result in your dismissal from your official duties. you answer these statements may be used against you in relation to subsequent departmental charges, but not in any subsequent criminal proceedings. I have If

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Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q. A. Q. A. A. A. Q. A. Q. A. Q. fully read and under the Advice of Rights that appears above. The information has also

been read to me prior to answering any questions." Yes, sir. Would you execute your name to that and print your name right above your execution? (Witness complies) 11/15. Sir, have you executed the Advice of Do you understand that, sir?

Rights form which is Exhibit #A? Yes. And I'm going to go ahead and witness your signature. Mr. Hertzberg, what is your

position with the City? I'm the Community Development Block Grant Project Manager. How long have you been in that capacity? Around the first of August. off. What did you do before that? I was the Director of Public Works for the City of Joplin. Who is the Director now? Nick Heatherly. Did Mr. Heatherly formerly work for the City? I may be a week

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Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. A. Prior to, no.

So he took your job and came from without of the City? Uh-huh. Do you know where Mr. Heatherly came from? I mean most of his career had been in the City of Springfield as Chief Building Official, Solid Waste Manager. It seemed

like he'd had some maintenance experience within the streets, street maintenance. What does the Director of Public Works do? Well, the Public Works Department is made up of - I mean there's several divisions. is City Hall, there is the Building Code Enforcement Division, there is the Engineering Division. That's the division The There

that I came up through in my career.

Tree Development & Plan Zoning Division, the Solid Waste Recycling Division. the fourth floor. That covers

Then we've got Wastewater

Treatment, we've got Sanitary Collection Division. Those two are separate divisions.

We did have the Fleet Maintenance Division garage. We had the Facility Maintenance Let's see,

Division, we had the airport.

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Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. A. Q. A. Q. A. Q. A. Q. Traffic Engineering, signs, signals, Traffic Engineering Division. Oh, Public Transit.

You are an engineer by trade? Yes, sir. Do you have a professional registration? Yes, sir. So you are a P.E.? Yes, sir. You've had obviously four years of college in that regard? Yes, sir, graduate from University of Missouri. Do you have any post graduate work? I took a class out at Missouri Southern, but no degree. You have an undergraduate degree? Uh-huh. How long were you employed by the City of Joplin? I worked two summers for them while I was in school, the summer of '79 and the summer of '80 as a laborer, seasonal laborer, then I graduated in May of '81 and started with the City in August of '81, so do the math, 32 years last August.

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Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. Q. A. Q. Q. A. Q. A. Fleet Maintenance? Uh-huh. Is that buying tires? The garage took care of all maintenance of including tires. Did you set bids or something for tire purchases? In the organization I had an Operations Manager and I had an Assistant Director which is also an Engineering Manager, and I had a Community Development Manager. Those three -

at that time Tim Nyander was my immediate, you know, the one that I immediately supervised, that oversaw that portion. What's his name? Tim Nyander. Do you recall an experience with subletting of bids to tire companies? The subletting of bids to tire companies? Let me straighten the question out. How do

you select what companies to use, for example tire companies? That would be the garage supervisor and the operations managers. Well, I saw any

purchase orders that were over $3,000.00.

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Page 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. A. Q. Typically the tires were small and were less than the $3,000.00. Under that quantity,

depending on the quantity, for details I'd have to get with Tim whether they were on rotation or whether they were on another way would be phone bids. A lot of the time on

tires you would want, you know, the time factor becomes important, and then also you want to match the existing tire obviously and see if they have it available. Do you remember at any time Goodyear receiving a bid or being a service provider for tires? I mean like I say the detail there is a small enough dollar amount that I -You wouldn't know? Yeah, typically through the years we've done different ways of doing it, whether it was rotation, you know. I mean you're hitting me

a little blind, I guess. Well, I guess I am. I'm trying to find out Did you lose that Did that

some information from you.

maintenance while you were there?

division, I think you called it Fleet Maintenance, did that go out of your

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Page 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. A. division? That was changed after I was put into the new position. And it went to where, under whom? Under the Assistant City Manager, although I'm not in the loop, I don't know if that's been completed or if it's still in Public Works or whether it's now - you know, some of the things they were going to do they were able to go ahead and do internally, some of the things they had charter changes on. The

intent was, you know, for that operation to move to the Assistant City Manager. Why would that be? I mean they felt like it was Public Works had too much going on, they wanted to bring it under a separate department. In your department who was your direct supervisor? My direct supervisor would be Mark Rohr. And now who is your direct supervisor? My direct supervisor is Johnathan Raiche. Then Troy Bolander is his direct supervisor, then Mark Rohr - no, Nick Heatherly is Troy's direct supervisor, then Mark Rohr is Nick

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Page 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. Heatherly's. Why did you leave your division, your department? Why did I lose the department? That would be

a pretty - I mean as far as what was in the papers. I don't know what was in the papers. was in the papers? Well, the papers basically said that there was some tires and some things that were missing at the garage, there was an individual that was found, one of the mechanics was found taking some stuff. Not What

that I was involved, but ultimately I'm in charge of that department, you know. And

then there was some billing questions in the Billing and Code Division. What was that issue over? Well, I mean, you know, as far as what was brought out in the paper would be that over a 14 year period there was some dollars that wasn't billed. I wasn't involved in as much It was those two.

of that investigation to explain whether it was. You know, obviously we didn't bill

nonprofits, obviously --

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Page 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. Q. A. Q. Q. A. A. Q. A. Q. A. Q. A. Q. Did that have something to do with the Navaline system? The Navaline is part of the -The accounting system? Uh-huh. And that was Steve Cope? Uh-huh. So Steve worked for you? Yeah, he was over the Billing & Code Division. So why did Steve lose his job? Basically he resigned. They felt like that

he wasn't managing the division properly. Based on his $100,000.00 or whatever it was? Whatever it ended up being. And it's something to do with the Navaline system? Uh-huh, yeah. So I mean it wasn't really money that was stolen, as I understand it, it was just money that wasn't properly accounted for because of the form? Right. So he quit or resigned, I guess, you say? Yeah.

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Page 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. How did that come about? Let's see, -Were you involved in his resignation? No, I had already been demoted. So who was involved? Was that Mark?

That would be Mark and Sam. Who is Sam? Sam Anslem is the Assistant City Manager. After I was demoted he was appointed temporary Public Works Director. Sam? Sam Anslem, uh-huh. And Dave Allgood would

have been involved, too, the new H.R. Director. Now what role did Allgood have? Well, in the meeting that I was demoted it was Sam and Dave. They had kind of done the

investigation and gave information to Mark and then Mark basically said based upon this information, you know, you've got three options. One option would be to take a

demotion to Community Development, another option would be to retire, but I wasn't to retirement age, or to resign, so out of those three options, you know, I'll take the

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Page 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. A. Q. demotion. Was anybody present when Mark made those options available to you? Sam Anslem, the Assistant City Manager, and Dave Allgood. What role did Allgood play in any of this? Well, he was fairly new, you know. Yeah. But he was involved with Sam as a part of the investigation. What kind of investigation was done? Well, I wasn't completely in the loop on that investigation. You don't know? I mean I know what was in the final documents. Do you have a document somewhere? Yeah, I was given some documents, yes. Can you share those documents with me? Yeah, I can find them. my body. If you would bring them to Mr. Head's office sealed with my name? Okay. I'd like to review those. Mark them Exhibit I don't have them on

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Page 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. #27, if you would. Here's my card. I'll put

this on here for your reminder.

Just put #27

and include those in a sealed package. Okay. Demotion documents. Sealed envelope

marked with your name and #27? Yes. Put that in your pocket there. Based

on your knowledge of what occurred to Steve Cope do you feel that was a justifiable option for him to resign? Well, you're going to get into different management styles. Mark and I had different

styles of management. I felt Steve needed a pat on the back for what he had come through with the tornado rather than a kick. For performance? Yeah. What about your situation? Were you given an

opportunity to clear your name? Well, I mean, you know, the boss should have the right to have on his team who he wants on his team. Mark and I weren't clicking, you

know, and so I felt like that he should have that full right. I didn't agree with the

process of in my mind, I guess fabricating may be an unfair word, but making a big deal

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Page 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. out of some issues and putting them on the paper. And one of them would be the form issue that Steve had to confront, that was also attached to your report? Yeah, that was on the front page, yeah, Public Works. So instantly you look like you stole $150,000.00 or whatever it was. Well, I'm associated with that. Yeah, that's not a good thing. That wasn't - like I said I didn't agree with that. Tell me about Mark's style. about Mark's style? I mean Mark's style, you know, he's an intelligent individual and he has, I don't know the proper term, he'll have an idea, okay, he'll have an idea. May be a good What can you say

idea, may be a bad idea, but it's an idea. And so then he wants the facts to support that idea, okay? support the idea. The facts may or may not And so if the facts you

bring don't support the idea that's not a good thing in his mind. My process is more

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Page 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of a funnel, you know, you try to - the thing about it is, and like I say this good idea, but it was done originally in a vacuum so at the end of it you may or may not have the facts to support it, but it's not a consensus building idea, you know. Great idea, but may So then

or may not have any consensus.

you've got to figure out a way to get some consensus, you know. as a funnel method. I always thought more You've got this You may have For

committee, you've got whatever.

an idea, but you run and get support.

example, the Capital Improvements Program, it would be 2004, so you had a transportation study so you had recommended projects from a consultant, and the staff had ideas of what they wanted, but you take it to this committee, a 40 member committee, you bring them through the process of decision, and then you've got this 40 member of people as an advocate and so then you go out and you have a percentage of them that are willing to advocate for this decision that the committee came down to, then you take it to the vote of the people and you win, you know. That

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Page 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. A. Q. Q. A. thinking process, and not that he doesn't have some great ideas, but it's a process that the idea comes before the facts. He doesn't want constructive criticism? I mean he never wanted constructive criticism from me, yes. Can you tell me have you ever seen Mark lose his temper or holler at people, that kind of thing? Yes, but he did better with me, you know, over the last few years. Yeah, there was one

time after the tornado that he let loose on me, I mean he was upset. Was it justified in being upset with you? Well, I mean in my mind I didn't think so. That's what I'm asking for. The example, it was we were doing some work on Joplin Street and the storage location of the equipment for the contractor was on the parking lot and the contractor at the end of the day was taking some extra spots, you know. And so we got a call from a business

over there and he was -He being Mark? He being Mark. And so he was coming back and

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Page 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. A. Q. A. Q. Q. A. he was upset, you know, visibly upset about it, so he voiced that, you know, and then I got ahold of the project manager and had them redo their storage area so they would minimize the parking spaces they were using. Like I say in my mind it was not a big issue. Much ado about nothing? Yeah, and I don't know who had called him, I don't know how upset the person was that called him, you know. Have you seen the fear by intimidation aspect of Mark that I've heard about in the papers? Well, I guess that would an example. You've seen that before, other examples? Yeah. With other people as well as yourself? (Nodding head) That was a yes? Yes. Like I say the last couple of years I I mean

mean he was - yes, through the years.

I'm trying to judge, you know, post tornado, pre tornado. I became Director in '04, he

came in November of '05. Nine years, I think. So there's a lot of different stories, you

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Page 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. Q. know. He and I both - and then he tried to

mellow out after I had the heart attack and then of course there was some friction, but I don't think he - I mean he tried to not use any anger techniques with me later on. Do you believe his method of anger techniques contributed to your health decline? I mean -Didn't help it any, did it? I knew what I was getting into. I mean

Director of Public Works you're going to have stress. I mean don't whine about some heart

attack, you know, it comes with the territory. Does Mark add extra stress though to the job? A. Sure, but, you know, different people have

different management styles, you know. But this is a public employment system, though. Yeah. A little different than private? I've tried to treat my people fairly. I

think if you'll visit with any of them I have through the years. Like I say I've also grown up with football coaches that got pretty loud

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Page 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. Q. A. Q. and would shake you around. If somebody's

management style is a little volatile, you know, I'm going to try to do the best with it I can. Have you ever seen his management style for example on a financial person - what's her name? Leslie? Yes. Yeah, we've been in budget meetings with Leslie and Mark. And Mark has come on strong with his actions towards her, also? Right, and it's back to that, you know, that idea maybe the facts don't match it or maybe the dollars don't match it, but his goal is to try to figure out how to make that idea happen. The way I've heard it described is my way or the highway. Would you agree with that

concept, that's what he practices? I think I'd describe that. How much pay cut did you take? About $30,000.00. $30,000.00 a year?

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Page 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Q. A. A. Yeah, from right at $100,000.00 to right at $70,000.00. Probably if I figured it up per hour I probably got a raise. Yeah. Because I was putting in that 60 hours a week and I'm trying to keep it as close to 40 to 45 if possible. Do you know anything about were you demoted already when - well, let me ask this question. Do you know Jim West? Pardon me.

Do you know Dan Johnson? Yes, he was a project engineer in the Engineering Department which would have been under the old system Jack was my assistant so he was Jack's direct supervisor and then I was direct supervisor over Jack. So Dan was underneath you is what I'm hearing? Yes, it was myself, Jack, and Dan. Was Dan a good employee? Dan - we all have our strengths and weaknesses. Dan has got a search and I mean send

development type personality.

him for a gallon of milk, you may get three calls of what type of milk, you know, but

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Page 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. Q. A. A. A. Q. Q. that's just the way his mind works. As long

as you keep him focused and on task, yeah, he's good. Let me ask you this question. Do you know

anything about, and maybe you were already demoted, I don't know the time frame, do you know anything about the rebuilding of Station 2? Do you know what I'm talking about?

Yeah, and Dan visited with me this morning. I asked Dan to see if you would come in and talk with me. I'll try to describe it before that. was the engineer, okay, and -Jack? Schaller. He was the Assistant Director of Jack

Public Works over Engineering. So he was directly under you? Yes, so Jack and Dan were working with the Fire Department on the site preparation and what got to me was that they were wanting to do a certain style of open ditch then box at the driveway and they were told by the second floor to go ahead and pipe the whole thing so the land would be -The second floor being Mark?

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Page 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Being Mark, yes. That they were told to do

the land improvement and pipe the whole area. So it came from the second floor there was money in the storm water it wasn't - anyway they pursued that. At the cost of $120,000.00? Yes, sir. So it cost the City $120,000.00 to change the engineering plan from what was standard practice to the culvert set of facts? That's correct, but Mark once again was a very aesthetic minded person. Whether you're

doing street scape, whether you're doing site development for a fire station, you know, once again the facts were given and he had this idea, an aesthetic idea, so that's the way it was done. Was that change of $120,000.00 of additional cost, that was Dan's estimate, was that brought to the City Council for approval? Dan caught me as I was going down the stairs and said he didn't find a place where it was brought by council signature. So it was just signature of Mark that changed that?

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Page 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q. A. A. Q. A. Q. Q. A. A. That's what he told me. I didn't have a

chance to follow the paperwork or provide paperwork for you. Would you be able to do that? He could do that for you. -You're out of the loop now? Yeah, I'm out of the loop. I assume he will do that. I don't want you In my new position

to discuss what we've talked about other than I did ask Dan to talk to you and see if you'd be willing to come in and talk with me about this issue. So other than that please don't

discuss this with Mark or anybody else. Sure. The only one that knows I'm over here

is just my direct supervisor. Who is that? Johnathan Raiche who works for Troy Bolander, and Troy is gone these two days on a business trip for the city or I would have just told Troy directly. And Troy works for Mark? Troy works for Nick who works for Mark. What would Schaller say about this issue? was under you at this time. He

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Page 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. A. Q. A. Q. That's correct. So what would he say about this? same thing you did? Yeah. He would say the design that was standard was $125,000.00, $120,000.00, whatever it is less and yet Mark decided to spend more money? Yes, I would -And that's contrary to what was reasonable engineering design? There were less expensive options. And everybody knew that? Everybody in the Say the

decision making process knew that? Well, I mean the communication, the decision, I was not in the decision between Jack and Mark. Since the tornado I was left out of

the loop on some items and Jack conveyed that to Mark, Mark conveyed that back, but he kept me in - he told me, you know, this is what we're talking about, but this is Mark's decision, this is what we're going to do, you know. I mean I'm sorry that it's interesting to me Dan says that the standard that would be expected to any person getting City permits

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Page 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. Q. A. Q. A. would have been what he suggested which was the open area solution? Yes, now once again the developer can decide on their site plan to do more, and in this case in his mind the developer was the City of Joplin. And you agree with that? Yes. So we took the more expensive route and that's by direct from Mark Rohr? Yeah. That's true? Yes. But Jack was the one in the trenches. Mitch Randles, the Fire

He would have that.

Chief, could convey light on that, and like I say Dan has conveyed light for you. Jack, I wonder if he will talk with me. out of the loop now. Yeah, he's no longer with the City. So I don't know if he will or not. Have you He's

seen other situations during your experience with Mark Rohr where he took the more expensive route for the City as opposed to the least expensive route without explanation?

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Page 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Yes. I mean that's Mark's style, you know.

For example on the street scape he had a certain way he did it in Piqua, Ohio and he wanted to duplicate that design here. guess this was kind of our first disagreements, but -You and Mark? Mark, yeah, you know. He had a concept of what he wanted up there at Piqua, Ohio and he brought it out and you said, no, here's why? Yeah, I mean there's good stamped concrete companies that could provide a stamped concrete. Not MoDot stamped, a good quality I

stamped that would be in my mind less expensive that would provide the same look and he wanted the real brick so we went with real brick. We had used several highway

dollars to put existing streetlights in on that stretch of Main Street and so he didn't want to use them, you know, he wanted his own particular design so we had to figure out a way to not have to give that money back, you know, to the federal highway so we had to move and relocate them to Junge and

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Page 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. Q. A. Q. A. Connecticut so they were still on public streets being used for public good, but they weren't being used on Main Street where the original grant was for. And you had funding to do that? I mean, sure. I mean, you know.

I mean he did it. Yeah. Did he go to the City Council with that? I mean ultimately we had a bid that showed that, you know, we were buying new ones and I'm sure somebody had to say what's happening to the old ones, but that was not a contractual thing. There was a contractual

thing to put in the old ones originally and there was a contractual things to put in these new ones and then there's costs, P.O.'s, a smaller amount to relocate the old ones to a new location, you know. And I told

Mark, I said I'm a Walmart style of engineer, you know, customer source oriented if there's no practical reason, and he was more aesthetic. that way. But he's not an engineer? And our styles are just different

Holliday Reporting Service, Inc. 417-358-4078

David Hertzberg

In Re:

Joplin Critical Investigation

Page 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. A. Q. He's not an engineer. No engineering training? No. So he's directing engineers as to what the engineering standard ought to be? Well, yeah, the lighting was less with the shorter lights, it didn't have as much of a spread, a lighting spread, but he wanted more of that canopy look. I can understand that. What I can't I mean I

understand is the sewer culvert.

don't understand spending taxpayer money for that. Yeah, like I say, you know, that's pretty typical of Mark's decision process. Right or

wrong he's very aesthetic minded and the price tag then is not as important to him as that aesthetic look. Whether it's arguing

over whether you use the old streetlights or you use the new streetlights that were going to come from the Piqua design. Whether

you're using stamped concrete or whether you're going to use the same brick that you used in Piqua, you know. you know. That's just Mark,

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David Hertzberg

In Re:

Joplin Critical Investigation

Page 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. A. Q. A. Q. Q. And you didn't agree with him on a lot of things and you're gone? That's correct. That's standard operating procedure for that. Is that what you're telling me? Sure, and like - yeah. Anything else that I should know that you through your experience have learned for this investigation? That's an open ended question. It is, and the reason it's meant that way I'm not intelligent enough to get to the proper question, at least I get an answer, you know. Right. I mean obviously I didn't agree with

the process of the demotion, but once again I do feel like that the boss ought to have the group on his team he wants to have on his team, you know, but the process to splash my name on the paper and maybe not directly but indirectly associate it with thievery, you know, I didn't agree with that. And you were not provided an opportunity to name clear before some kind of hearing in a public hearing? Not as a department head, no.

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David Hertzberg

In Re:

Joplin Critical Investigation

Page 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. A. Q. Q. You did not have a contract with the City as such? No. Are you aware of due process that might be afforded to you as a City employee? Well, I mean the due process the way I understand does not apply to department heads. know. Yeah, I mean I had 150 employees, you I've seen that due process. The fact You don't have a written contract?

finding hearing, the 30 days for an appeal to the Personnel Board, that standard process is not a part of the department head options. We serve at the pleasure of the City Manager. All right. I guess we're done. I ask that

you not go through any of what we talked about. I don't know if Mr. Schaller will

come over or not, if he does, he does, if he doesn't, he doesn't. Mitch may be able to help you, you know, Randles, the Fire Chief. He's not an engineer, is he? No. Okay. Thank you for coming in, sir. If there is any retaliation

Appreciate it.

or anything like that I'd like to know it.

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David Hertzberg

In Re:

Joplin Critical Investigation

Page 34 1 2 3 4 5 (SWORN STATEMENT CONCLUDED) A. You've got my card. Okay.

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David Hertzberg

In Re:

Joplin Critical Investigation

Page 35

REPORTER'S CERTIFICATE

STATE OF MISSOURI ss. COUNTY OF JASPER I, SHARON K. ROGERS, Certified Court Reporter in the State of Missouri, do certify that pursuant to the foregoing Stipulation the witness came before me on the 15th day of November, 2013, was duly sworn by me, and was examined. That examination was then taken by me by

steno-mask recording and afterwards transcribed; said Sworn Statement is subscribed by the witness as hereinbefore set out on the day in that behalf aforesaid and is herewith returned. I further certify that I am not counsel, attorney, or relative of either party, or clerk, or stenographer of either party or of the attorney of either party, or otherwise interested in the event of this suit.

_________________________ SHARON K. ROGERS, CCR-650

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