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2011G028 ______________________________________________________________________________ COMPLAINANTS REVISED SUPPLEMENTAL PREHEARING STATEMENT ______________________________________________________________________________ BRETT L. WILLIAMS, Complainant, v. DEPARTMENT OF PUBLIC SAFETY, COLORADO STATE PATROL, Respondent.

Pursuant to Board Rule 8-59 and ALJ McClathcheys March 22, 2012 Order Granting Complainants Motion in Limine, in Part; Order to File Revised Prehearing Statements on April 2, 2012, Complainant Brett L. Williams (Complainant or Mr. Williams), by and through his attorney, Keith A. Shandalow of the Law Offices of Keith A. Shandalow, P.C., submits his Revised Supplemental Prehearing Statement. This Revised Supplemental Prehearing Statement incorporates ALJs rulings in her March 22, 2012. Respondent has subsequently filed a Motion for clarification and/or reconsideration of that Order, and in the event that the Order is modified, Complainant reserves his right to revise this Prehearing Statement. Introduction After an extraordinarily successful 12 year career with the CSP, during which he rose to the rank of Captain, Brett Williams voluntarily resigned his uniformed position with the CSP in February 2010 to pursue his dream of becoming a helicopter pilot. During his exit interview, and at other times, his supervisor, Major Colley, indicated that if he requested reinstatement to the CSP within a year, he would not be required to complete a full background investigation or submit to a polygraph examination. Approximately two months later, Mr. Williams requested reinstatement. However, despite Major Colleys promises, he was required to go through a background investigation and polygraph examination. During the pre-polygraph interview, he was asked a question that could have only been asked to ascertain his sexual orientation. After hiding his sexual orientation his whole life, and especially during his tenure at the CSP because of the pervasively anti-gay environment within the CSP, the question, and his honest answer to it, made him extremely uncomfortable. He was told a few days later that he had failed the polygraph, and was denied reinstatement. After the results of the polygraph examination were reported to Chief Wolfinbarger and Lt. Col. Hernandez, who was ostensibly responsible for deciding whether Mr. Williams should be reinstated or not, the appointing authority and their delegees sought justification for denying the application based solely on the results of the polygraph examination. Each aspect of the review of Mr. Williams application for

reinstatement was conducted in a shockingly slipshod, incompetent and careless manner, and it is clear that the decision to deny reinstatement was both arbitrary and capricious and any purported legitimate, non-discriminatory reason for the denial is a pretext for discrimination in violation of the Colorado Anti-Discrimination Act. Statement of Claims Complainant asserts two claims in this appeal of the denial of his application for reinstatement to the Colorado State Patrol (CSP): (1) the manner in which the CSP handled, considered and decided Mr. Williams application was arbitrary and capricious in violation of Board Rules; and (2) the decision to deny his request for reinstatement to the Colorado State Patrol violated the Colorado Anti-Discrimination Act and Board Rule 9-3. Undisputed Facts (this list is not exhaustive, but includes a significant portion of the facts most material to this matter. 1. Complainant Brett Williams joined the CSP in July 1998. 2. He had an exemplary record. 3. He was promoted to Captain in 2005 4. Last assignment prior to his voluntary resignation from the CSP in February 2010 was to the Operational Development Section. 5. He always achieved very high evaluations. 6. All his evaluations since the CDPS Form 221 was revised in 2007 have placed him at the very highest Rating (Exceptional). 7. In his last evaluation just prior to his voluntary resignation from the CSP in February 2010, his supervisor noted about Complainants employment with the CSP: Captain Williams has had a remarkable career thus far. 8. During his 12 years at the CSP, he was the recipient of many commendations, and acknowledgements of his remarkable dedication, professionalism and high standards of achievement. 9. On or about February 12, 2010, Mr. Williams voluntarily resigned from the CSP to attend helicopter flight training school. 10. On his Resignation Interview, Major Colley recommended Mr. Williams for rehire. 11. On April 26, 2010 at or about 3:30 p.m., Mr. Williams met with Chief James Wolfinbarger to discuss his reinstatement. At that meeting, Chief Wolfinbarger stated that Mr. Williams would have to complete a background and polygraph investigation to be reinstated. Mr. Williams informed Chief Wolfinbarger about Major Colleys representation that Mr. Williams would not have to complete these procedures to be reinstated. Chief Wolfinbarger replied that he would look into the matter and get back to Mr. Williams. 12. On May 4, 2010, Mr. Williams received a letter from Chief Wolfinbarger stating that Mr. Williams would need to complete the full background process and polygraph examination to be eligible for reinstatement. 13. On May 13, 2010, Mr. Williams received the background packet from Patricia Snyder to complete and return to her.

14. On May 14, 2010, Mr. Williams returned the completed background packet to the Department of Public Safetys (DPS) Human Resources department. While in the lobby, Mr. Williams was conversing with Major Colley, and was approached by Carol Pritchard, the Selections Unit Manager for the DPS, whose job description includes responsibility for job reinstatements. When Mr. Williams informed Mrs. Pritchard of the reasons for his presence, and attempted to give her his completed reinstatement packet, Mrs. Pritchard asked how long Mr. Williams had been separated from his employment with the CSP. Mr. Williams told her that it had been almost three months. She asked Major Colley why Mr. Williams had to go through a background investigation and polygraph examination. Mrs. Pritchard told Major Colley that this is not what has been done in the past and that Mr. Williams did not need to go through all of this to be reinstated. Major Colley merely responded, New chief. (Chief Wolfinbarger had been named to the position of Chief of the CSP on February 28, 2009, a full 15 months before this conversation took place.) 15. On May 19, 2010, Mr. Williams underwent a background interview with Trooper Teri Herwig. She sent her report, dated May 27, 2010, to Chief Wolfinbarger. 16. On May 26, 2010, Mr. went to his polygraph examination, conducted by Sergeant Dean Paxton. Prior to the polygraph interview Mr. Williams had to sign a document that stated that any failure to answer any of the questions or cooperate in the process would be taken as an immediate failure of the polygraph process. 17. Sgt. Paxton had received his polygraph training at the Texas Department of Public Safety in April June 2009. 18. CSP polygraphers are required to have a college degree or equivalent training or experience. 19. CPS polygraphers and polygraphs administered by the CSP are required to meet all standards established by the American Association of Police Polygraphers. 20. Sgt. Paxton told Mr. Williams that he had performed one hundred polygraphs prior to May 26, 2010. 21. Sgt. Paxton did not have a college degree. 22. Sgt. Paxton did not have equivalent training or experience sufficient to satisfy CSP policy. 23. Applicable AAPP standards and/or by-laws require that a polygrapher not make any misrepresentations to examinees. 24. Sgt. Paxtons representation that he had conducted one hundred polygraphs prior to May 26, 2010 was a misrepresentation had had conducted no more than 69. 25. AAPP standards require that a polygraph machine be calibrated prior to each examination. 26. Sgt. Paxton did not calibrate the polygraph machine prior to the administration of the polygraph examination of Mr. Williams on May 26, 2010. 27. During the interview just prior to the polygraph examination, Sergeant Paxton asked about any events in Mr. Williams past that Mr. Williams might be concerned about that might be the subject of questions on the polygraph examination. 28. Mr. Williams told Sergeant Paxton about a massage he received in Thailand in or about 2006, which ended in sexual contact that Mr. Williams had no prior intent to occur, and which did not result in the payment of any money beyond what Mr. Williams usually paid for such a massage.

29. Sergeant Paxton directly asked Mr. Williams if the person with whom Mr. Williams had this sexual contact was a man or a woman. He answered that the sexual contact was with a man. 30. Mr. Williams polygraph examination is the only time that Sgt. Paxton ever asked about the gender of the person with whom the examinee had some sort of sexual contact. 31. Sgt. Paxton wrote in his notes during the interview the word prostitution. 32. Neither Sgt. Paxton nor anyone else within the CSP, whether involved in the polygraph, the scoring of the polygraph, the review of the polygraph results, nor any other aspect of Mr. Williams application for reinstatement, had any independent information about what occurred during the 2006 Thai massage, or Mr. Williams intent, other than what Mr. Williams reported during his pre-polygraph interview with Sgt. Paxton. 33. Such an activity would not constitute either prostitution or patronizing a prostitute under either Thai law or Colorado law in 2006. 34. Questions of sexual orientation are in violation of the ethics and standards set forth by the Colorado Polygraph Examiners Association, the national polygraph standards to which the CSP is required to adhere, and CSP Policy 210.01. 35. The Polygraph Examiners Reports findings, in their entirety, were, The applicant showed Significant Reactions (SR) to the relevant questions on the polygraph examination. 36. On or about May 27, 2010, Captain Elder, head of the Internal Affairs division of the CSP, at Chief Wolfinbargers request, asked Sgt. Tim Keeton of the Professional Standards Branch to find support for the Patrols denying Mr. Williams application for reinstatement solely on the basis of the polygraph results. 37. Over the next two days or so, Sgt. Keeton researched the issue and ignored all authority to the effect that a hiring decision in law enforcement could not or should not be based solely on the results of a polygraph examination. 39. Polygraph trainees at the Texas Department of Public Safety polygraph school are instructed that polygraphs should not be the sole basis for law enforcement employment decisions. Sgt. Keeton had been trained at the Texas Department of Public Safety. 40. Sgt. Keeton reported to Captain Elder that it was okay to not reinstate based solely on the results of the polygraph examination. 41. Captain Elder reported that conclusion to either Lt. Col. Hernandez or Chief Wolfinbarger. 42. As soon as Chief Wolfinbarger was informed that it was permissible to deny reinstatement based solely on a failed polygraph examination, Chief Wolfinbarger made the decision with Lt. Col. Hernandez to deny reinstatement based on the failed polygraph examination. 43. The IACP National Law Enforcement Policy Centers Polygraph Examinations Model Policy provides, in pertinent part, that, Polygraph examination shall not be used as the sole determinant of suitability for employment. 44. The IACP National Law Enforcement Policy Center Polygraph Examinations Concepts and Issues paper dated February 1998 concludes that polygraph examination results should not be used as a sole determinant of suitability for employment. At best a polygraph could reveal only limited information about an applicant and in any event its reliability is not absolute. Therefore, its use is not a substitute for other personnel screening procedures. 45. Sgt. Keeton agrees with the preceding statement.

46. Lt. Col. Hernandez was the Chiefs delegee with respect to Mr. Williams application for reinstatement. 47. Lt. Col. Hernandez spent five minutes reviewing Mr. Williams personnel file. 48. Lt. Col. Hernandez spent about an hour to an hour and a half researching Thai law to determine if prostitution were legal, and concluded that it wasnt. 49. Lt. Col. Hernandez did not know at the time of consideration of Mr. Williams application the elements of the crime of patronizing a prostitute. 50. Lt. Col. Hernandez assumed that what occurred when Mr. Williams had his massage in Thailand in 2006 was an act of prostitution, although it was not. 51. Complainant received formal notice of the decision not to reinstate, in a letter from Lt. Col. Scott Hernandez dated June 2, 2010. The letter did not inform Mr. Williams of his appeal rights. 52. Respondent took the position that the decision not to reinstate was no appealable. 53. All CSP members involved in any way with Mr. Williams application for reinstatement, and the decision to deny that application, had nothing negative to say about Mr. Williams professional and personal integrity, honesty, professionalism, competence, morals, ethics. 54. CSP polygraphers have a great deal of discretion in how they administer polygraph examinations. 55. During another polygraph examination of another CSP candidate, Sgt. Paxton elicited an admission of a male homosexual encounter but did not administer a re-test as he had done on many other occasions when the examinee made new admissions in the post-test interview, and in fact lied to the examinee and indicated that he could not, or did not, do a re-test after new admissions. 56. Many former uniformed CSP members have been reinstated without the requirement of a polygraph examination. 57. Other candidates for CSP positions, whether initial hire or reinstatement, have been hired or reinstated despite the results of polygraph examinations.

Disputed Issues of Fact (some may be mixed issues of fact/opinion) 1. The CSP did not require all reinstatement candidates to submit to a background investigation and polygraph examination? 2. Trooper Herwig expressed reservations about the validity of polygraph examinations during her background interview with Mr. Williams. 3. Many applicants to the CSP had patronized prostitutes in the U.S. and abroad (especially those applicants in the military) and were hired and/or reinstated to the CSP anyway. 4. CSP polygraphers has shown bias against males who have admitted to sexual encounters with other males. 5. There are no openly gay male uniformed members of the CSP. 6. The CSP manifests an anti-gay attitude. 7. Gay male uniformed members of the CSP are extremely reluctant to reveal their sexual orientation because they know that they will be discriminated against. 8. What occurred when Mr. Williams received his massage in Thailand in 2006 was not an act of prostitution.

9. Even if it was, it would not have been in violation of applicable Thai law. 10. CSPs handling of this matter violated applicable standards, policies and laws. 11. Lt. Col. Hernandezs research into Thai law was inadequate and resulted in the wrong conclusion. 12. Sgt. Paxtons polygraph examinations reveal a bias against men who have had sexual experiences with other men. 13. The question that Sgt. Paxton asked Mr. Williams regarding the gender of the person who administered the massage in Thailand violated State law, and polygraphers standards and state personnel rules and regulations. 14. Captain Elder did not research Thai law, as Lt. Col. Hernandez testified but Captain Elder has no recall. 15. Captain Elder did not check with HR Director Ed Gietl regarding any DPA rules concerning denying reinstatement based solely on polygraph results, as he testified he did (although he remembers nothing about any details about that) and as Mr. Gietl indicates he did not. 16. CSP changed its standard operating practices in this matter in not documenting any material aspect of the decision-making process leading to the denial of Mr. Williams reinstatement application. 17. Sgt. Paxton asked the question about the gender of the individual administering the massage to Captain Williams in Thailand to elicit Captain Williams sexual orientation. Pending Motions 1. Complainants Motion in Limine Re: Respondents Assertion that the Board Lacks Jurisdiction over Complainants Claim that Respondents Decision to Deny Reinstatement Application Was Arbitrary and Capricious 2. Respondents Motion for Clarification or Reconsideration of the Courts [sic] March 22, 2012 Order Granting (in Part) Complainants Motion in Limine Re: Polygraph Evidence Points of Law 1. Arbitrary and Capricious

In determining whether an agencys decision is arbitrary and capricious, a court must determine whether the agency has : 1) neglected or refused to use reasonable diligence and care to procure such evidence as it is by law authorized to consider in exercising the discretion vested in it; 2) failed to give candid and honest consideration of the evidence before it on which it is authorized to act in exercising its discretion; 3) exercised its discretion in such manner after a consideration of evidence before it as clearly to indicate that its action is based on conclusions from the evidence such that reasonable men fairly and honestly considering the evidence must reach contrary conclusions. Lawley v. Department of Higher Education, 36 P.3d 1239, 1252 (Colo. 2001).


Discrimination Based on Sexual Orientation

Statutes and Regulations C.R.S. 24-34-402(1)(a) provides, in pertinent part. It shall be a discriminatory or unfair employment practice for an employer to refuse to hire any person otherwise qualified because of . . . sexual orientation. Board Rule 9-3 provides, in pertinent part, that Discrimination against any person is prohibited because of race, creed, color, gender (including sexual harassment), sexual orientation, national origin, age, religion, political affiliation, organizational membership, veterans status, disability, or other non-job related factors. This applies to all employment decisions. Applicable Standard in Disparate Treatment Cases The Colorado Supreme Court in Colorado Civil Rights Commission v. Big O Tires, 940 P.2d 397, 400 (Colo. 1997) adopted the shifting burdens analysis as set forth in the U.S. Supreme Court in McDonald-Douglass v. Green, 411 U.S. 792 (1973) as the standard to apply in disparate treatment cases under the Colorado Anti-Discrimination Act. In order to prove intentional discrimination under section 24-34-402, a plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination. The elements of such a prima facie case of unfair employment practices are fairly straight-forward . First, an employee must show that he belongs to a protected class. Second, the employee must prove that he was qualified for the job at issue. Third, the employee must show that he suffered an adverse employment decision despite his qualifications. Finally, the employee must establish that all the evidence in the record supports or permits an inference of unlawful discrimination. Bodaghi v. Department of Natural Resources, 995 P.2d 288, 297 (Colo. 2000) (citations omitted). [O]nce the employer meets its burden by offering such a reason, the complainant must then be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for the adverse employment decision were in fact a pretext for discrimination. This burden of proof, however, can be met by the evidence already in the record and does not require, in every case, that additional evidence be offered by the employee. The evidence establishing a prima facie case may be such that "no additional evidence is required to infer intentional discrimination." Bodaghi at 298 (internal citations and quotations marks omitted). Mixed Motive Cases In mixed motive cases, plaintiff need only establish that the illicit motive was one of the factors in the adverse employment decision. See Fry v. Okla. Corp. Commn, 516 F.3d 1217, 1225 (10th Cir. 2008).

Subordinate Bias A plaintiff may prove pretext, and liability may be found against employer, for a subordinates bias even if decision maker lacked discriminatory intent. E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 485 (10th Cir. 2006). Proving Pretext The courts have recognized a number of categories of evidence of pretext in this area of the law. Generally, to show that an employers proffered nondiscriminatory reason for an adverse employment action is pretextual, a plaintiff must produce evidence of such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in employers proffered legitimate reasons for its actin that a reasonable fact-finder could rationally find them unworthy of credence, and hence infer that employer did not act for asserted nondiscriminatory reasons. E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 490 (10th Cir. 2006). Categories of evidence that are relevant to this matter include, but are not necessarily limited to, the following: Procedural irregularities. Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1122 (10th Cir. 2007 (disturbing procedural irregularities surrounding an adverse employment action may demonstrate that an employers proffered nondiscriminatory business reason is pretextual). Excessive use of subjective standards. Bodaghi, at 300; Colon-Sanchez v. Marsh, 733 F.2d 78, 81 (10th Cir. 1984); Mohammed v. Callaway, 698 F.2d 395, 401 (10th Cir. 1983) Failing to follow the employers own policies. Goodwin v. MCI Communications Corp., 134 F.2d 382 (10th Cir. 1998). Changing the articulated reasons for the action taken. Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997); Plotke v. White, 405 F.3d 1092 (10th Cir. 2005). Misjudging an employees performance or qualifications. Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808, 814 (10th Cir. 2000) (evidence indicating that an employer misjudged an employees performance or qualifications is, of course, relevant to the question whether its stated reason is a pretext masking prohibited discrimination). Employer acted contrary to an unwritten policy or contrary to company practice. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000). Proving the articulated reason is not the true reason. York v. AT&T, 95 F.3d 948, 954 (10th Cir. 1996). The articulated reason is unworthy of credence. Randle v. City of Aurora, 69 F.3d 441(10th Cir. 1995); Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808, 814 (10th Cir. 2000).

Disparate Impact To the extent that Respondent relied upon the polygraph examination as performed in this case, and if this kind of examination and the kind of questions posed during the pre-exam interview are standard questions that Respondent asks of examinees, such questions would have a disparate impact on gay candidates. The disparate theory of establishing discrimination is discussed in Griggs v. Duke Power Co., 401 U.S. 424 (1971). See also Faulkner v. Super Value Stores, Inc., 3 F.3d 1419, 1429 (10th Cir. 1993). Polygraph Evidence As Complainant Brett L. Williams Trial Brief Re: Polygraph Examinations, filed with the Board on February 24, 2012 and incorporated by reference as if fully set forth herein, indicates, Colorado courts have consistently held that evidence of polygraph test results and the testimony of polygraph examiners are per se inadmissible in both criminal and civil trials. Valley National Bank v. Chaffin, 718 P.2d 259, 262 (Colo. App. 1986); People ex rel M.M., 215 P.3d 1237, 1249 (Colo. App. 2009). Furthermore, the opinion testimony of any expert witness based, in whole or in part, on the polygraph administered to Mr. Williams is likewise inadmissible, and should not be listened to or considered by the ALJ at the hearing of this matter, even though the ALJ is the trier of fact here and not a jury. People ex rel M.M., 215 P.3d at 1250. In her March 22, 2012 Order Granting Complainants Motion in Limine, in Part, Administrative Law Judge McClatchey ruled that [t]he machine test results of the May 26, 2010 polygraph administered to Complainant, and any testimony of polygraph examiners or experts interpreting those results, will be excluded from the hearing. This ruling included, but is not limited to, the score, scoring, review, analysis, and interpretation of the machine results of that test. The Order also provided that [a]ny and all expert and documentary evidence concerning the reliability, validity, accuracy or scientific value of polygraph tests will be excluded from the hearing in this case. Witnesses Complainant Brett L. Williams: can be contacted through the undersigned counsel. Can testify to all personal accounts contained herein and with specific details to events and conversations with all involved parties. Can testify to the impact professionally and personally of the denial of reinstatement and the personal and professional damage suffered due to confidential material being willfully and intentionally released to members of the CSP, outside of the agency, and to potential future employers with intent to harm and discredit. Can testify as to his economic damages and future economic damages, and all other remedies available to him under applicable statutes. Can testify concerning why reinstatement is not a viable remedy except in carefully crafted circumstances. Corporal Shawn Wycoff: CSP, Adams County office, 303-289-4760. Can testify to the gay hostile environment formal complaint filed as a witness and reporting party of this incident against Sgt. DJ Brown, as well as poor treatment by the Internal Affairs unit during this investigation.

Sergeant Patrick Muilenburg: CSP, Adams County office, 303-289-4760. Can testify to the gay hostile environment formal complaint filed as a witness and reporting party of this incident against Sgt. DJ Brown, as well as poor treatment by the Internal Affairs unit during this investigation. Sgt. Muilenburg was actually assigned to the Internal Affairs unit prior to his assignment at the Adams County office. Sergeant Harold Steve Stevenson: CSP Support Services Branch, 303-273-1667. Can testify to the facts and basis of treatment by Major Colley in regards to the invitation to the Gay and Lesbian forum in Colorado Springs and general operating practices of Major Colley. Major Michael King (Retired): Cell number, 970-260-4006. District Commander when employed as a Trooper and as a Captain/Troop Commander, can provide historical actions on past reinstatements and historical actions of Major James Colley. Can testify to Mr. Williams work history, commendations, awards, and employee performance. Is now aware of Mr. Williams sexual orientation due to this process and can speak to the attitude and atmosphere a gay male would face within the CSP. Can also speak to the fact that reinstatement to the Patrol is not a viable remedy for Mr. Williams unless a specially and carefully chosen position is created for Mr. Williams. Major Steve Powell: District One Commander CSP, cell number, 303-915-8515. He can speak to the work history of Mr. Williams as his direct supervisor, prior to his assignment with the Operational Development Section. Can speak to the attitude and the atmosphere a gay male would face in the CSP. Can also speak to the fact that reinstatement to the Patrol is not a viable remedy for Mr. Williams unless a specially and carefully chosen position is created for Mr. Williams. Robin Smart: Manager for CSP Strategic Planning Office, civilian employee, 303-2394463. Can speak to actions of Major Colley as a female non-sworn civilian member and worked for Mr. Williams as a subordinate during his period with the Operational Development Section. Can speak of outright discriminatory actions of the department and documented actions of intent to not rehire Mr. Williams by the Department. Can also speak to slander of character and the Professional Standards Branch releasing confidential materials in regards to his rehire. Can speak also to discriminatory practices and inappropriate communications and intent by Major Colley as a female employee and operating practices of such behavior by Major Colley. Sergeant Tim Keeton: with the Respondents Professional Standards branch. He can testify to being tasked with researching the issue of whether the Patrol could deny Mr. Williams reinstatement application based solely on the results of the polygraph examination, his research regarding finding justification to deny Mr. Williams reinstatement application based solely on the results of the polygraph, his failure to consider any policy or case that indicated anything to the contrary, and his reporting his conclusion to Captain Elder. Lt. Col. Scott Hernandez: his testimony concerns his participation in various aspects of the decision to deny Complainants request for reinstatement, his 5-minute review of Mr. Williams personnel file, his brief and inaccurate research into Thai law regarding prostitution, his lack of understanding about the elements that comprise the crime of soliciting prostitution, his lack of knowledge about the nature of such alleged violation under Colorado law at the time that Mr. Williams allegedly committed it, his failure to


consider all aspects of Mr. Williams application, his changing reasons for his decision to deny reinstatement, his failure to investigate the validity of the polygraph results. Sgt. Dean Paxton: his testimony will concern the polygraph examination given to Complainant in May 2010, his knowledge and training with respect to polygraphy in general, his knowledge and training that an employment decision should not be based on the results of a polygraph alone, the manner in which he exercised his discretion with respect to other examinees concerning breakdown or retesting after admissions, his failure to do so if there was any involvement with gay male sexual activity. Chief James Wolfinbarger: his testimony concerns his participation in various aspects of the decision to deny Complainants request for reinstatement. Carol Pritchard: DPS Selections Unit Manager. Can testify regarding procedural irregularities with respect to Complainants request for reinstatement to the CSP. Captain Dan Elder: his testimony concerns his participation in various aspects of the decision to deny Complainants request for reinstatement, his remarkable failure of recollection about what he did and when he did it, and his request to Sgt. Keeton to find authority for the Patrol denying Mr. Williams reinstatement application based solely on the polygraph exam, and his disinterest in any authority to the contrary. Trooper Terri Herwig: her testimony concerns her background interview and report regarding Mr. Williams application for reinstatement. Ed Gietl: former H.R. director of the Department of Public Safety, will testify that he was never contacted or consulted by any member of the CSP regarding Mr. Williams application for reinstatement and the concerns Chief Wolfinbarger had about denying that application based on the results of the polygraph examination.

Experts Chief Dan Montgomery, retired, former Chief of Police, Westminster, Colorado, can be contacted through Complainant. An expert witness concerning law enforcement employment practices, specifically hiring practices, Chief Montgomery will testify as to the manner in which the CSP handled Complainants request for reinstatement was incompetently done, and that the decision to deny reinstatement was arbitrary and capricious. Chief Montgomery will also testify as to his knowledge of the pervasive antigay male in law enforcement agencies, generally. Alan Zelicoff, M.D., can be contacted through counsel. An expert witness concerning polygraphy, Dr. Zelicoff will testify that Sgt. Paxtons question regarding the gender of the Thai masseuse was inappropriate.

Exhibits: Exhibit A: Brett Williams Personnel File (BLW 76-542). Exhibit B: Documents concerning polygraph exam, redacted to exclude those pages ruled inadmissible pursuant to the Boards March 22, 2012 Order Granting Complainants Motion in Limine Re: Polygraph Evidence, In Part (BLW 1- 72; BLW 75; BLW 8449-008450).


Exhibit C: Recording of Major Colleys call to Mr. Williams informing him of decision to deny reinstatement, as produced by Respondent. Exhibit D: Recordings of Background and Polygraph Examinations of Brett Williams as produced by Respondent. Exhibit E: Texas Department of Public Safety Polygraph School materials (BLW 555-1891). Exhibit F: CSP Policy re: polygraph examiner training, 814.01, January 1, 2009 (BLW 19131916). Exhibit G: CSP Policy re: polygraph examiner training, 814.01, April 12, 2011 (BLW 1912). Exhibit H: CSP Policy re: polygraph examinations, 210.01, January 1, 2010 (BLW 1892-1896). Exhibit I: Documents printed by Sgt. Keetons during his research into the issue of whether the CSP could deny Mr. Williams reinstatement request based solely on the results of a polygraph examination (BLW 2102-2136). Exhibit J: Notes taken by Captain Elder regarding Williams application for reinstatement (BLW 73-74). Exhibit K: Chart of polygraph examinations and outcomes, as produced by Respondent (BLW 543-552). Exhibit L: Respondents Responses to Complainants Discovery Requests (Initial, First Supplemental and Second Supplemental). Exhibit M: Prevention and Suppression of Prostitution Act B.E. 2539 (1996) (Thai law). Exhibit N: The Entertainment Places Act of 1966 (Thai law). Exhibit O: International Association of Chiefs of Police (IACP) National Law Enforcement Policy Centers Polygraph Examinations Model Policy, dated March 1, 1996. Exhibit P: IACP National Law Enforcement Policy Center, Polygraph Examinations: Concepts and Issues Paper, February, 1998. Exhibit Q: Constitution, American Association of Police Polygraphists, Inc. (AAPP). Exhibit R: AAPP Standards and Principle of Practice. Exhibit S: Standards for Law Enforcement Agencies 32.2.6, CALEA July 2006. Exhibit T: The Formation of a National Police Polygraph Policy, APA and IACP. Exhibit U: Investigative Report into Complaint against Sgt. DJ Brown, including DVDs, as produced by Respondent. Exhibit V: Interview training materials relied upon by Sgt. Paxton (BLW 8206-8590). Exhibit W: Expert Witness Report of Chief (Retired) Dan Montgomery.

Exhibit X: Bret Williams Earnings documentation for 2011 and 2012 (attached hereto). Exhibit Y: Official pay scale for Trooper position into which Brett Williams should have been placed, including base salary and benefits (to be subpoenaed from or produced by DPS prior to hearing). Exhibit AA: Brett Williams applications for employment post June 2, 2010. Exhibit BB: Case Information Charts for applicants 1-147 as produced by Respondent. The complete personnel files for the following reinstatement candidates as produced by Respondent: NOTE: DOCUMENTS AND POLYGRAPH-RELATED MATERIALS, INCLUDING BUT NOT LIMITED TO AUDIO RECORDINGS OF POLYGRAPH EXAMINATIONS, PRODUCED BY RESPONDENT IN DISCOVERY, WHETHER VOLUNTARILY OR PURSUANT TO COMPLAINANTS MOTIONS TO COMPEL, ARE NOT COMPLETE, WITH MANY GAPS AND UNEXPLAINED OMISSIONS. A FULL LIST OF SUCH OMISSIONS WILL BE PLACED INTO EVIDENCE BY COMPLAINANT, WHO WILL REQUEST THAT APPROPRIATE PRESUMPTIONS BE MADE BASED ON SUCH GAPS AND OMISSIONS AND MISSING MATERIALS. Exhibit CC: Applicant 1 Exhibit DD: Applicant 2 Exhibit EE: Applicant 5 Exhibit FF: Applicant 7 Exhibit GG: Applicant 8 Exhibit HH: Applicant 10 Exhibit II: Applicant 11 Exhibit JJ: Applicant 12 Exhibit KK: Applicant 13 Exhibit LL: Applicant 15 Exhibit MM: Applicant 17 Exhibit NN: Applicant 18 Exhibit OO: Applicant 20 Exhibit PP: Applicant 21 Exhibit QQ: Applicant 22


Exhibit RR: Applicant 23 Exhibit SS: Applicant 25 Exhibit TT: Applicant 28 Exhibit UU: Applicant 30 Exhibit VV: Applicant 34 Exhibit WW: Applicant 35 Exhibit XX: Applicant 36 Exhibit YY: Applicant 38 Exhibit ZZ: Applicant 41 Exhibit AAA: Applicant 42 Exhibit BBB: Applicant 43 Exhibit CCC: Applicant 44 Exhibit DDD: Applicant 49 Exhibit EEE: Applicant 51.

The following polygraph materials (partial polygraph reports have been produced pursuant to one of Complainants motions to compel, for some, but not all reinstatement candidates, and some, but not all, audio recordings have been produced, but no background reports like the one Trooper Herwig wrote for Mr. Williams -- have been produced for any reinstatement candidate, and Respondent has failed to offer any explanation for these omissions and failures to produce) for those polygraphs for which there was a finding of Deception Indicated or Significant Reaction: Exhibit FFF: Applicant 56 Exhibit GGG: Applicant 57 Exhibit HHH: Applicant 58 Exhibit III: Applicant 61 Exhibit JJJ: Applicant 63 Exhibit KKK: Applicant 64

Exhibit LLL: Applicant 68 Exhibit MMM: Applicant 71 Exhibit NNN: Applicant 72 Exhibit OOO: Applicant 75 Exhibit PPP: Applicant 76 Exhibit QQQ: Applicant 78 Exhibit RRR: Applicant 80 Exhibit SSS: Applicant 82 Exhibit TTT: Applicant 84 Exhibit UUU: Applicant 85 Exhibit VVV: Applicant 88 Exhibit WWW: Applicant 89 Exhibit XXX: Applicant 91 Exhibit YYY: Applicant 93 Exhibit ZZZ: Applicant 94 Exhibit AAAA: Applicant 96 Exhibit BBBB: Applicant 98 Exhibit CCCC: Applicant 101 Exhibit DDDD: Applicant 102 Exhibit EEEE: Applicant 103 Exhibit FFFF: Applicant 104 Exhibit GGGG: Applicant 105 Exhibit HHHH: Applicant 107 Exhibit IIII: Applicant 110 Exhibit JJJJ: Applicant 113 Exhibit KKKK: Applicant 115 Exhibit LLLL: Applicant 116

Exhibit MMMM: Applicant 118 Exhibit NNNN: Applicant 119 Exhibit OOOO: Applicant 121 Exhibit PPPP: Applicant 122 Exhibit QQQQ: Applicant 124 Exhibit RRRR: Applicant 125 Exhibit SSSS: Applicant 128 Exhibit TTTT: Applicant 130 Exhibit UUUU: Applicant 134 Exhibit VVVV: Applicant 136 Exhibit WWWW: Applicant 140. Stipulations None, to date, although Complainant is willing to stipulate to any and all his Undisputed Facts and the authenticity of all his exhibits, although not the completeness of files produced by Respondent. Complainant would also like to stipulate to the salary and benefit schedule that would have been applicable to him had he been reinstated to the CSP on or about June 1, 2010 once Respondent provides a copy of same. Respectfully submitted on this 3rd day of April, 2012

s/Keith A. Shandalow Keith A. Shandalow, #37834 Law Offices of Keith A. Shandalow, P.C. 1221 Pearl Street Boulder, Colorado 80302 (303) 443-0168 (telephone) (303) 443-6635 (facsimile) Attorney for Complainant Brett L. Williams


CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of April, 2012, a true and correct copy of the foregoing COMPLAINANTS REVISED SUPPLEMENTAL PREHEARING STATEMENT was filed with the State Personnel Board via telefacsimile transmission, and a true and correct copy of the above-referenced document was served via e-mail on the following counsel for Respondent: Diane Dash Kit Spalding Micah Payton Colorado Department of Law 1525 Sherman Street Denver, Colorado 80203

s/Keith A. Shandalow Keith A. Shandalow