McMaster v. Nelson et al. — The Lawyers Talk (Pt. 3)

Before reading this article we suggest you read parts one and two in the series.

The following is a transcript of an almost 27 minute phone conversation between Randy Harvey, former McMaster’s legal counsel, and Bruce Bischof, Sheriff’s Office outside counsel.

The phone call was made on June 30, 2021 at about 9:18 am. We referred extensively to this conversation in part 1of this series, “Fruit of a Poisoned Tree”and promised to post it in full. So here it is.

Without further ado let’s get to the phone call between the lawyers; All emphasis added:

• BISCHOF: Randy?· Hey, Randy, it’s
• BISCHOF: Randy?·Hey, Randy, it’s Bruce Bischof.
• HARVEY:·Hey, Bruce, how are you?
• BISCHOF: Hey, I’m doing fine
• HARVEY: Good
• BISCHOF: Yeah, other than it’s hotter than it should be, and our air conditioning went. So what the heck? Nothing’s changed. Hey, Randy, I wanted to… if you’ve got just a moment
• HARVEY:· Yeah, I do.
• BISCHOF:· I’ll bring you up to date.
• HARVEY:· Okay
• BISCHOF:· The Sheriff has spent a considerable amount of time anguishing over this whole situation, and he has concluded that he has the right and intends to go ahead with a dismissal of the Captain…
• HARVEY:· Whoa.
• BISCHOF:· Based on… based on two reasons. He feels that the Captain has acknowledged that he has failed to report on two occasions. He does not think that the Captain is dishonest, as… as alleged in the third part of the pre-termination letter. So he’s willing to enter into an agreement, if you’re interested, which would be a settlement agreement where the Captain would acknowledge that he should have notified the Sheriff of this potential harassment. And that the Sheriff…
• HARVEY: In… In exchange for what?
• BISCHOF: In exchange for the Sheriff will withdraw the allegation of untruthfulness and dishonesty. That will not be in the Captain’s record. And then he will ask for a… a resignation, and we will give him two months of salary and benefits through the end of August. And if you’re willing to agree to that, then the Sheriff will… he’s going to draft a press release, which he does not want you involved in, but he will give it to you before he releases it.
• HARVEY: Yeah, this is pretty surprising to me, Bruce, based on my review about an investigation.
• BISCHOF: Well, I… I understand that, Randy. I… I totally understand what you’re saying. I… any rate, you can run it by your client and see if he’s willing to do this. If he’s not, then, you know, we need to know and we’ll go ahead with — with the termination.
• HARVEY: Uh-huh.
• BISCHOF: But…
• HARVEY: So why is it that the Sheriff is not considering some lesser discipline? I mean, the guy served for 28 years.
• BISCHOF: Yeah.
• HARVEY· And we’ve had this single…
• BISCHOF: There… there…
• HARVEY: He has no previous discipline.
• BISCHOF: No. If this were an arbitration under a labor contract, you’re… you would probably be correct.
• HARVEY: Yeah.
• BISCHOF: But this is one of the three captains in a 240-person department, reports directly to the Sheriff, and this type of knowledge of this kind of behavior is — is just a zero-sum issue for the Sheriff.
• HARVEY: The problem… I’ll just tell you, Bruce, the problem with the Sheriff’s position on that, he’s got his own problem, because he lived across the fence. I mean, he’s…his property backs right up to this Fugate woman and this sergeant [DeMars].
• BISCHOF: I did not know that.
• HARVEY: And her children… Fugate’s children reported these disputes between Fugate and the Sergeant to the Sheriff’s wife and to the Sheriff, according to what we’ve been told. So I… I think it’s going to get… I mean, if my client… I really doubt my client is going to be interested. I think he’s going to be wanting to clear his name and fight this down to the last nickel. So I… I just… you and I… you and I have been through a lot of discipline over the years of a lot of employees, and I guess I don’t understand why, at worst case scenario, this isn’t a written reprimand and a 10- or 30-day suspension without pay. That would make sense. That would communicate the same message without, you know, destroying a guy’s career.
• BISCHOF: I’m… I’m not… Randy, this is between you and me, I’m not making these decisions.
• HARVEY: Yeah, I know that.
• BISCHOF: And… and I know the Sheriff, he… he really likes your client.
• HARVEY:· Uh-huh.
• BISCHOF: …very, very much so. And he… I tend to agree with his decision, although I did not make it. He says if we bring him back or just give him a lesser amount of punishment, that it’s going to send an issue to the rest of the department that it’s okay for cop management to not report these things but everybody else has to.
• HARVEY: Well…
• BISCHOF: And in…
• HARVEY: …have they fired lesser employees for a failure to report?
• BISCHOF: Yeah, I think — I think they have. I don’t know.· I haven’t gotten into all their prior discipline.· But it’s — but I mean, if… if Fugate reported these issues to the Sheriff’s wife and to the Sheriff, I mean, I… I… and they are neighbors, I… I never knew that, you know.
• HARVEY: Well, she also reported to other members of the department, and… and they didn’t file reports, because this has been an ongoing thing between this sergeant and this woman. It just… I mean, there’s a rotten fish in the bottom of this somewhere.
• BISCHOF: Well, there could be.
• HARVEY: Yeah.
• BISCHOF: There could be, Randy. I… I don’t know. If you want to, you know, provide us some more information on when Fugate reported this to the Sheriff’s wife and the Sheriff, if she did…
• HARVEY: Well, I… I… yeah, we could do that. I mean, I don’t… it sounds like the Sheriff has made up his mind. I… frankly, I was really shocked.· I mean, I’m totally shocked that this Sheriff is taking this position. I mean, I… prior to being a lawyer, I managed employees for 30 years, and this is not the way we would have dealt with a 28- or 30-year employee who apparently made a mistake.And whether or not he made the mistake he’s alleged to have made is evenly questionable, based on the facts. So… yeah, I’ll communicate it to my client. I would ask that you communicate to the Sheriff, he may really want to seriously consider a lesser form of discipline and… because we’re… if we go down this path, we’re going to pull out all the stops and it will be a full-blown federal lawsuit. It’s just… it’s just so unnecessary, you know. I can’t… can’t tell you how many times… I’m sure you have, too… I said to the school superintendent, do you really want to go down that path? Because it’s… it’s not going to be pretty.
• BISCHOF: Well, the… you know, I think the distinction, Randy, in my opinion, is that law enforcement, people at that level, management level, they… they have a certain degree of responsibility…
• HARVEY: Uh-huh.
• BISCHOF:· …that I’m not sure you have in a lot of these educational situations, but I don’t know. I don’t know. I…
• HARVEY: Well, the fact of the matter is, that McDermot [sic] reported it to… through the Sergeant’s chain of command. So… which is what the policy…
• BISCHOF: How do you mean…
• HARVEY: What… is what exactly what he policy says he was supposed to do.
• BISCHOF: You mean Deron, Deron reported it?
• HARVEY: Yeah, Deron… McMaster reported it to the Sergeant’s supervising captain, which is what the policy says he was to do. I don’t…
• BISCHOF:· Well, that…
• HARVEY: You know, these — these facts — all of these facts are going to be reviewed by a jury, and I cannot see them, in my wildest imagination, agreeing with the Sheriff on this.
• BISCHOF: Well, you… you may be right, Randy. I’m not disagreeing with you.
• HARVEY: Uh-huh.
• BISCHOF: I’m not. I… I’m not disagreeing with you. I just… you know, if there was something else, I don’t know anything about these backyard conversations, and…
• HARVEY: Well, we… see when we… we requested copies, and the Sheriff’s Office did not give us copies of all of the interviews that were done.
• BISCHOF: Yes. That’s right.
• HARVEY: They just didn’t give us a copy of the interview that the Sheriff’s wife was interviewed.· We didn’t get a copy of that interview or a transcript of it.
• BISCHOF: Oh, I did not know she was interviewed.
• HARVEY: Yes, she was. We…
• BISCHOF: Oh, my goodness.
• HARVEY: We did not get copies… we did not get exculpatory evidence that contradicts the conclusions that these guys came to, which my client’s entitled to under, you know, the Law Enforcement Bill of Rights. He’s also entitled to know when he’s under investigation. And one of their interviews was conducted of him when he was under investigation and they didn’t notify him that he was under investigation.
• BISCHOF: Well, let me…
• HARVEY: And…
• BISCHOF: I’ll go back. I… I think you’re probably going to get copies of these investigative interviews if… if you file a lawsuit.
• HARVEY: Well, we will, and we should get them… if they decide to terminate him, we should get all of them because he’s going to… he’s going to need them for a Loudermill hearing, if one is conducted [Harvey is confused here as a Loudermill hearing has already occurred. This will be clarified later — dcsofollies]. I’m… I’m of the opinion, and I may be wrong, but I’m of the opinion that… that the… the failure of these two investigators to produce exculpatory evidence is going to be a constitutional violation. And it’s been my experience with this particular investigator, Tim Moore, you know, he… he makes a decision and then goes and tries to prove it with his investigation.
• BISCHOF: Yeah, you said that. And that caught my attention, and I think it caught the Sheriff’s, too. But they did a little followup checking on… on Tim…
• HARVEY: Uh-huh.
• BISCHOF: …and I’ve never met Tim Moore at all, but they…they’re absolutely convinced that your assessment of our investigators is wrong.
• HARVEY: Uh-huh.
• BISCHOF: And I’m not so sure that’s the case, Randy.
• HARVEY: Well, you probably don’t know me well, but you know I’m a good investigator.
• BISCHOF: Well, sure.
• HARVEY: Yeah. And I’ve dealt with his guy before, and we’ve crucified him in other circumstances for his conduct.· And we will in this circumstance as well. My client… if my client decides to move forward, but…
• BISCHOF: Yeah. Well, I’ll… I’ll convey this to the Sheriff. I don’t think it’s ever going to change his mind regarding the failure to report to him.
• HARVEY: Well, there… the policy does not require my client to report to him. It requires my client to report to the perpetrator’s chain of command. That’s what…
• BISCHOF: Hm.
• HARVEY: That’s what their policy says. So there is no policy violation. And if the Sheriff could not hear this couple fighting and screaming in his own backyard, that’s… that’s pretty concerning.
• BISCHOF: Well, these are facts that… boy, I’ll tell you, I… I’m glad I’m not getting involved in.
• HARVEY: Yeah.
• BISCHOF: I just… I just wanted to throw out to you what… what the Sheriff’s willing to do.
• HARVEY: Well, I’m sure my client would accept some lesser discipline, but he’s not going to accept being terminated. And I’m sure your client can terminate him, that’s their right.
• BISCHOF: Yes.
• HARVEY: But they will pay… they will pay heavily for it.
• BISCHOF:· Yeah, no, they could.·They could very well do that. And…yeah, I… I don’t… I would like to see, frankly, the interview with the Sheriff’s wife.
• HARVEY: Uh-huh.
• BISCHOF: Who… did one of our investigators interview her?
• HARVEY: Yeah, Moore and Ellington did. There’s a number of… there’s a number of interviews that were not produced in that investigation by these two yahoos.
• BISCHOF: Okay. I… I think this thing has got a number of elements to it that I don’t think we’re going to resolve it. But I hope… I hope, you know, Deron will consider… at least consider this proposal.
• HARVEY: Well, I’ll present it to him and see what he has to say. I’m.. I’m really disappointed in the Sheriff’s position. I just… in my wildest stretch of the imagination, I could not believe that he would come to this conclusion based on Deron’s 28 years of service, and knowing him for those 28 years and what kind of a person he is.
• BISCHOF: Yeah, I know. The Sheriff is very anguished by it. He likes Deron. And it’s… it’s just all whether or not he has an obligation to report to the Sheriff or he didn’t. That’s where the… what the Sheriff finally concluded.
• HARVEY: Well, as we discussed in the meeting that we had with the Sheriff,the policy requires him to report to the Sergeant’s chain of command, which he did. There’s… that’s undisputed.
• BISCHOF: Uh-huh.
• HARVEY: And that’s been the policy and practice. And as Deron said in the meeting, the only time he’s not reported to the chain of command is when the chain of command was absent, such as in the case when the jail commander was gone.
• BISCHOF: Yeah. Yeah.
• HARVEY: So that’s going to be real difficult for the Sheriff to get around, if he retains the position that Deron should have reported directly…
• BISCHOF: Who… who is the sergeant… who was the sergeant, Randy, that McMaster reported this to? I don’t have the file in front of me. Do you remember?
• HARVEY: I don’t remember the Sergeant’s name, but that sergeant was a patrol sergeant that reported to… well, I… I think the… the dispute between the husband and wife, I’m not sure if the husband was a sergeant or was he an officer, but I recall that he and the Sergeant came to McMaster’s house, and McMaster told him to report it to his captain, and the next day he reported it to his captain. [Harvey is referring to the night Sergeants Dizney and DeMars went to McMaster’s home to report DeMars’ affair with Allie Lamb — dcsofollies]
• BISCHOF: Okay. And so that captain would have been…
• HARVEY: Garrison
• BISCHOF: Garrison. That would have been Paul… Paul Garrison, yes.
• HARVEY: Right.
• BISCHOF: And I think, then, that’s what triggered the investigation.
• HARVEY: Well, it…no, actually, the investigation was triggered by Tim Moore and Ellington, who were investigating another matter and came across information and went to the Sheriff.
• ·BISCHOF: Yeah, yeah, yeah, you’re correct.
• RANDY: And said they wanted to interview McMaster. And they interviewed him the first time without telling him that he was…
• BISCHOF: Yes.
• HARVEY: …under investigation.
• BISCHOF: Yes.
• HARVEY: Which is a violation of the statute.
• BISCHOF: Yes, that… that’s right. That’s your position. I remember that.
• HARVEY: Yeah.
• BISCHOF: And I… and we… and you made a request for those investigative documents in the case of… of the sergeants. I… were there two sergeants, or…
• HARVEY: Well, what happened is…
• BISCHOF: Usually…
• ·HARVEY: …that Ellington and Moore went out and pulled in two other IA investigations, which they referred to in my client’s investigation and quoted from. But they did not provide those materials in their investigation. So we have no way of knowing if they cherrypicked, if they get told the whole story or half story. And based on what Deron was able to share with the Sheriff in our meeting, it was clear to me that he took apart many of their allegations. So, you know, it sounds to me like the Sheriff is focusing on two percent of the investigation and taking a… an untenable position that Deron should have reported this sergeant to him when the policy says that he’s supposed to report it to the guy’s captain, which he did.
• BISCHOF: Uh-huh.
• HARVEY: And I don’t think that’s going to fly as a basis for sustaining a termination. I mean…
• BISCHOF: Oh, I… you could be exactly correct. I… I don’t know, Randy. I… I don’t know. You… you make a very solid… solid set of arguments.
• HARVEY: Well, I’ll communicate this to Deron, see what he wants to do. Idoubt that he’s going to be willing to let the Sheriff’s Office sit on all those documents and not produce them. So we may have to file suit just to get all those documents and find out where this rotten fish is.
• BISCHOF: Yeah, I would like to review them, too. I… I’ve never seen them.
• HARVEY: Uh-huh.
• BISCHOF: But… well, let’s… you know, go ahead and talk to Deron, and then call me back. And I’ll… I’ll hand…
• HARVEY:· What’s your number, Bruce?
• BISCHOF: Yeah, call… just call my cell phone, Randy.· I carry it all the time.· It’s (541)480-XXXX.
• HARVEY: Okay. And so the Sheriff is saying that his offer, as I understood it, is withdrawing the dishonesty claim?
• BISCHOF: Yes.
• RANDY HARVEY: And… and allow Deron to resign in lieu of continuing with the investigation or what’s… what’s the terms of that?
• BISCHOF: Well, it just… he would just… just resign.
• HARVEY: Uh-huh.
• BISCHOF: He would acknowledge that he failed to report, but the Sheriff agrees to withdraw the allegation, the third allegation of dishonesty and untruthfulness. And then so… I guess… I’ve never… I’ve been involved, like you, in many, many settlement agreements, but this, I guess, would be a resignation and settlement agreement.
• HARVEY: Yeah, well, the difficulty is, is that the resignation may deal with the termination, but then it opens up a DPSST investigation against…
• BISCHOF: No, he’s going to lose his certification, you’re absolutely correct.
• HARVEY: Well, I don’t think he would lose his certification if… if it’s just a failure to report. He may lose… he definitely would lose his certification if they say he was dishonest.
• BISCHOF: Yeah..I’m… I don’t… I don’t see where that would be the case.
• ·HARVEY: You think he would lose his certification either way?
• BISCHOF: No, I… I… I don’t know whether he… I don’t have enough knowledge, Randy…
• HARVEY: Okay.
• BISCHOF: …as to what he… he…
• HARVEY: Well, let me ask you this question, Bruce, and you may or may not know the answer to it. Is it… is it the Sheriff’s position that if… if he has to go through with the termination, that he’s going to include this dishonesty charge in the termination, or is that off the table.
• BISCHOF: Yeah, I’m sure he will.
• HARVEY: So…
• BISCHOF: He’s just going to go ahead and, you know…
• HARVEY: But based on what you told me earlier, I thought I understood that the Sheriff doesn’t believe that he was dishonest.
• BISCHOF: Well, I don’t think he does.
• HARVEY: Okay.
• BISCHOF: I don’t… he doesn’t want to believe that at all. But the people that have been advising the Sheriff on all of these things is not me.
• HARVEY: Uh-huh.
• BISCHOF: It’s their in-house lawyers, out-house lawyers. Deschutes County is self-insured, and they have got other people that have made all these conclusions. They just wanted me involved because I didn’t have any real stake in this whole thing, and I’ve always liked Deron, and the Sheriff likes me, and I… they just wanted me to sit in on that hearing.
• HARVEY: Well, I’m glad you did for… it was good to see you again.
• BISCHOF: Well, we can… you know…
• HARVEY: Not a…
• BISCHOF: You know, we can at least talk.
• HARVEY: Yeah.
• BISCHOF· We can… that’s the one good thing about it. I…you and I can talk at any time.
• HARVEY: Yeah.
• BISCHOF: And… but I… no, I’m sure the Sheriff is going to just go ahead and just adopt the proposed disciplinary letter. I… I think our…that hearing we had on that Thursday, that was a Loudermill hearing, wasn’t it?
• HARVEY:·Yeah, I think… I think you’re correct. I may have misspoke earlier.
• BISCHOF: Yeah.
• HARVEY: It was a Loudermill… it may have been a Loudermill hearing, but we did not have all of the facts, the exculpatory facts.
• BISCHOF:· (Indiscernible), yeah.· And you’re on the record… you’re on the record for having requested that…
• HARVEY: Yeah.
• BISCHOF: …and been denied.
• HARVEY: Uh-huh.
• BISCHOF: No, you’ve… you’ve got a basis here for, you know, whatever you guys decide to do.
• HARVEY:·Sure.
• BISCHOF: But let me… I’ll… I’ll run this by the people at the Sheriff’s Department.· You talk to Deron. And then just give me a call back, Randy, when it’s… when you have a position.
• HARVEY: Sure. Glad to.
• BISCHOF: Okay. All right. Well, hey, I appreciate it.
• HARVEY: Yeah. Well, you stay cool over there.
• BISCHOF: I will. And we’ll see… we’ll see what happens.
• HARVEY:· All right. Take care, Bruce.
• BISCHOF:· Okay.· Yeah, thank… thank you, my friend.
• HARVEY: All right. Bye now.
• BISCHOF: Bye.

After we first read this transcript all that we could say was “Wow”. It is clearly damning, especially when taken in context with the rest of the evidence that has been previously presented.

In our opinion, and based on the evidence we have seen, Deron McMaster was targeted by Shane Nelson. He is not the first employee to have been targeted as the trail of lawsuits against Nelson demonstrate.

At the end of the day McMaster appears to have paid with his job to secure a captain’s position for Shane Nelson’s protege William Bailey. We believe be have provided convincing evidence of this.

This concludes our series on the McMaster lawsuit. We hope you have enjoyed it. As the lawsuit progresses and we discover more information we will of course update this story.

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