ISP whistleblower Brandon Eller during the first day of trial Aug. 14 at the Ada County Courthouse in Boise. Eller claims the Idaho State Police retaliated against him after he raised concerns about the investigation of a fatal crash involving an Idaho sheriff’s deputy. Kyle Green kgreen@idahostatesman.com
ISP whistleblower Brandon Eller during the first day of trial Aug. 14 at the Ada County Courthouse in Boise. Eller claims the Idaho State Police retaliated against him after he raised concerns about the investigation of a fatal crash involving an Idaho sheriff’s deputy. Kyle Green kgreen@idahostatesman.com

Idaho

Jury finds Idaho State Police retaliated against crash investigator, awards him $1.5M

By Cynthia Sewell

csewell@idahostatesman.com

August 29, 2017 02:01 PM

UPDATED September 01, 2017 05:54 AM

Update: Wednesday, Col. Kedrick Wills, the current Idaho State Police director, sent out this statement about the Eller case.

“Obviously, we are disappointed in the outcome of this trial, but we respect the legal process and the rights of our employees to pursue their legal rights.

“When I took over the watch here at ISP, one of the first things we did was to initiate a climate survey seeking ideas for improvement from all ISP personnel. We are now several weeks into that process, which utilizes an outsider — a retired ISP employee — to conduct each face-to-face interview. In addition, ISP headquarters staff continues to look for other opportunities to improve processes across our statewide organization.

“Moving forward, we will continue in our mission of providing public safety across the state of Idaho through law enforcement excellence while taking care of our nearly 600 outstanding and dedicated personnel.”

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Earlier reporting continues below:

After nearly three years of legal wrangling and a nine-day trial, the Ada County jury was unanimous: Idaho State Police retaliated against detective Brandon Eller for concerns he raised over a fatal crash investigation years ago.

The jury late Tuesday awarded Brandon Eller $1.5 million in damages and $30,500 in lost wages.

After about five hours of deliberation, the jury came back unanimous on all three of Eller’s claims: whistleblower act violations, negligent infliction of emotional distress, and willful and reckless conduct.

“Brandon is overwhelmed. It will take awhile to sink in,” his attorney, Erika Birch, told the Statesman on Tuesday evening.

“Everyone on his team just is feeling so blessed that finally he was able to tell the whole story and have a jury listen to it and respond in the way that they did.

“... The only way ISP was going to be held accountable in any of this was by going all the way through a trial and having a jury render a verdict, a verdict that tells ISP we are not going to stand for this.”

ISP spokesman Tim Marsano said Tuesday evening his agency did not have any comment on the verdict.

Eller accused the agency of taking actions against him for claiming higher-ups meddled in an investigation into a 2011 crash, in which a Payette County sheriff’s deputy struck and killed a civilian. The investigation divided the state police in two. Some at the agency thought the civilian was at fault, while others believed the deputy was.

Eller, who still works for the agency, alleges some who believed the deputy was at fault, including himself, saw their careers plummet. He claims those who thought the civilian was at fault moved up the ranks.

The trial started Aug. 14 at the Ada County Courthouse. The jurors, nine women and three men, heard closing arguments earlier on Tuesday.

Fourth District Judge Nancy Baskin had placed a gag order on the case before the trial started, meaning none of the attorneys could publicly discuss it until after the verdict was read.

Eller sued under the Idaho Protection of Public Employees Act, which protects “the integrity of government by providing a legal cause of action for public employees who experience adverse action from their employer as a result of reporting waste and violations of law, rule or regulation.”

This was the second Ada County jury to support such a whistleblower claim this year. On March 14, a jury found in favor of former Ada County employee Rich Wright, who claimed the county fired him in part for ordering an investigation into allegations that a manager with the county commissioners’ office was harassing employees. The jury awarded him $1.7 million. The judge also awarded him $664,527 in legal fees.

Final statements

Payette County Sheriff’s Deputy Scott Sloan was driving his Ford Crown Victoria at speeds in excess of 110 mph when he crashed into Barry Johnson, killing him on Oct. 18, 2011.

ISP forwarded its investigation to a special prosecutor, who charged Sloan with vehicular manslaughter.

During Sloan’s preliminary hearing on April 13, 2012, Eller testified that Johnson’s blood alcohol level — below, at or above the legal limit, according to various tests — was not a cause of the crash and that Sloan was driving in a reckless and unsafe manner while en route to a 911 call.

ISP leadership was unaware that this was how Eller would testify. They believed the initial crash report was incomplete — in particular, missing references in the list of causes to the fact that Sloan’s lights were on and that Johnson had been drinking.

The special prosecutor eventually dismissed the charge, saying his hand was forced by conflicting ISP reports.

Deputy's dash camera captures fatal crash near New Plymouth

On Oct. 18, 2011, Payette County Sheriff's Deputy Scott Sloan was driving in his patrol car at 115 mph on U.S. 30 near New Plymouth while responding with lights and sirens to a 911 call. The speed limit was 55 mph on the two-lane rural highway. Barry Johnson was in front of Sloan, traveling about 24 mph. As Sloan tried to pass him, Johnson began to turn left into his driveway. Sloan slammed on the brakes. His patrol car had slowed to 88 mph by the time it struck the driver’s side of the Jeep, killing Johnson. This video of the crash was captured on the deputy's dash camera.

During closing arguments Tuesday, Birch told the jury that ISP took several “adverse actions” against her client after he testified at Sloan’s preliminary hearing. The agency disbanded its crash reconstruction unit, which Eller had hoped to lead. Eller was reassigned to night and weekend patrol. Since Eller was no longer a crash reconstructionist, he did not qualify to teach crash-reconstruction courses at ISP’s training academy, which would have meant a pay increase. Eller applied for an open sergeant position; midway through the process, the ISP panel stopped scoring him on his application without telling him.

Birch specifically highlighted two events. The first, also raised during opening arguments, involved comments from ISP commanders who gathered to discuss the preliminary hearing testimony: “ ‘Those boys will be lucky to have a job working nights and weekends,’ and the now-colonel of ISP, Ked Wills, said, ‘I cannot believe that ISP is going to send a deputy to prison,’ ” said Birch.

Three months before Eller testified in the Sloan case, ISP completed a performance review for him — a “stellar review where he received the highest rating possible,” Birch told the jurors. Three weeks after testifying at Sloan’s hearing, Eller received another performance review.

“There were comments added into the review about him causing dissension and he was told to soften his opinions,” Birch said. “Lt. Col. [Sheldon] Kelley admitted on the witness stand that the ‘causing dissension’ language was specifically directed toward the Sloan case.” When Eller went to his superior and asked for background and supporting documentation about the things in his review, his supervisor “told him that he was directed by headquarters to add that in,” Birch said.

“Ladies and gentlemen, you don’t much get clearer evidence of retaliatory motive than you do from those two things,” Birch said.

ISP’s attorney, Andrew Brassey, told jurors that Eller blaming the agency for what happened to his career is misguided. The agency disbanded the crash reconstruction unit because it was full of problems. Eller’s score was too low to get the promotion to sergeant, but was enough to later get him a job as a detective. He can still teach crash reconstruction at Boise State or other places.

“Everything since that Sloan accident that has occurred as it relates to Brandon Eller at the Idaho State Police, he blames on Sloan,” Brassey said. “He is still our employee, a valued employee. He was promoted as a detective.

“… If we are so bad, if we are hiding things, don’t you think the Idaho State Police could figure out a way to fire Brandon Eller? You think some employer can’t figure that out? They not only didn’t do that, they promoted him when he scored highest on the detective exam.”

Cynthia Sewell: 208-377-6428, @CynthiaSewell