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~, City of North Olmsted f itv f nuncil Meeting Michael Ubaldi March 22, 2011 Page 41 i you advise the Civil Service Commission as to 2 whether they had the authority to schedule this s promotional examination at that time? a A. I did. And as a matter of fact, I went out of my s way to initiate that advice, and it was more in s the form of a directive than advice. It was ~ given early on in the meeting before too much a discussion had occurred. I wanted to make it 9 clear to the Civil Service Commission that it was io my opinion that they did not have the ii jurisdiction or authority to schedule the 12 promotional exam because there hadn't yet been a 13 formal vacancy or notice of a formal vacancy. is Q. And -- 15 A. I indicated -- i6 Q. Go ahead. I'm sorry. i~ A. -- that they had already been, and they were 1s encouraged to discuss the procedures and their i9 rules, but I advised them as sternly as I could 20 not to schedule the examination. 2i Q. And did you in fact advise them on seven z2 different occasions that evening essentially the z3 advice you just related to the city council? z4 A. Yes. As the matter has been reviewed and the z5 transcript has been reviewed and the notes were Page 42 i taken down, it came up on several occasions z throughout the meeting. 3 Q. I know you used the word "emphatic," was it your 4 understanding that they understood what you were s saying, that there was no confusion about what s you were saying or any of your language? ~ A. 1 think that it was clear. I think that a Mr. Ubaldi wanted, wanted me to justify or quote s the basis for the ruling. I actually misstated io one of the code sections, but the subject of the ii absence of a notice from the safety director also 12 came up in the discussion. is And under the Civil Service rules, the i4 notification from the appointing authority is the is triggering event, and under the state law -- i6 MR. CARSON: Mr. President, I'm i~ going to object on the basis he's offering is a legal conclusion. Counsel and I is discussed earlier if Mr. O'Malley is going 20 to be a fact witness, that's fine, but I zi would object to him giving legal 22 conclusions. 2s MR. JAMISON: My only response za briefly is that I think he's relating what 25 he stated that night. And I think it Page 43 i carries with it certain opinions clearly, 2 but I think he's testifying as a fact 3 witness as to what he directed or advised 4 the Commission on that particular evening. s MR. GAREAU: Mr. President, based s upon the explanation of counsel here, ~ you're free to either permit or not permit s the questioning of Mr. O'Malley on this s particular issue based on this explanation. io Keeping in mind that you're ultimately ii going to judge if this decision is reviewed 12 on full record. And it's not a court of is law, but we're close to it in the context i4 of the admitting of evidence and 15 substantial, reliable and probative i6 evidence on the record. i~ You've heard each of their is explanations and you're free to either i9 sustain the objection or to overrule it, 20 but you certainly can note if you choose to 2i overrule it. It's up to you. 22 MR. LIMPERT: My thought would be, 23 since this is not a formal court of law, za rather than either sustaining or z5 overruling, is it possible just to say the Page 44 i objection has been heard and duly noted? z MR. GAREAU: If you care to 3 proceed in that way, that's fine. a MR. CARSON: That's appropriate s for my purposes. s MR. JAMISON: Thank you. ~ Q. At some point then, Mr. O'Malley, on the evening s of February 28th, again, you were emphatic in s explaining to the Commission that they should not io proceed with scheduling the promotional exam for ii police chief at that time, correct? 12 A. Correct. 13 Q. And I think you testified that you told them in i4 different ways seven different times that they is shouldn't proceed with that action that evening, i6 correct? i~ A. Correct. is Q. Okay. Now at some point during this meeting and i9 after you had advised the Commission that they 20 should not schedule a promotional exam until the 21 vacancy had occurred in the position of the 22 police chief, did Mr. Ubaldi make a motion to 23 proceed with the scheduling, with scheduling the 24 promotional exam for police chief? 25 A. He did. Mehler & Hagestrom (11) Page 41-Page 44 800.822.0650 ~~.~~,,~ ,, -,_ „ ~.~ - ~:w