O’Grady: Case is ‘meritorious’

| 9/22/2010

A long day in U.S. District Court in St. Paul saw Major Kent O’Grady return to the witness stand for another three hours on Tuesday, Sept. 21.

The day before, O’Grady was on the stand for four hours with testimony that revealed he clearly is the man who calls the policy shots when it comes to the Minnesota State Patrol’s fatigue enforcement program.

The 31-year veteran of the state patrol is currently serving in operations support services, a section that oversees litigation and training, among other areas. He testified that he rescinded the fatigue checklist on May 5, 2010, because all the value of the checklist would be dismissed because of the way it was being used.

O’Grady ordered copies of the fatigue out-of-service reports and told the court he reviewed 12-15 of them. He said when he looked at the reports he was concerned that the documentation “would not stand.”

He met with then-Capt. Ken Urquhart and District Commander Steve Rogotske of the MSP and they decided on a “moratorium.” At O’Grady’s behest, Rogotske issued an internal memo on Sept. 2 – just days before the trial was to begin – pulling the plug on the fatigue enforcement program.

The memo advises officers and inspectors to stop placing drivers out of service for fatigue and states that there shall be no fatigue enforcement at all pending further training.

O’Grady: “The three of us got together and concluded that we were going to put a moratorium on the program until we had a high degree of certainty that the controls we put in place were in effect being done in the field.”

While denying that OOIDA’s lawsuit was a motivator, the defense counsel guided O’Grady through a line of questioning revealing an urgent and sweeping training blitz.

In Tuesday’s testimony, O’Grady talked about the new training guidelines and that he planned to train 125 officers. He said during the first full week in October, he will bring those inspectors to St. Paul and put them up in a hotel as guests of the state.

O’Grady: “Well, there are several parts of the program. The first part is I want our enforcement personnel to be very clear as to what the purpose is for our commercial vehicle enforcement program. I want them to be very clear what the purpose is for the inspection program. I want them to be clear about where their authority comes from in the statute. I want them to be clear about what the limits are to their authority so that they can articulate those if asked to do so in court.

“I want them to have an understanding of constitutional issues with regard to their role. I want them to have a full understanding of the federal statute with regard to illness or fatigue. I want them to know how they can detect impairment at roadside. I want them to know how they can document what they see and what they observe.

“And … I want to walk them through a policy and understand legal concepts of reasonable articulable suspicion, probable cause, eminent risk and other terms that are used in that policy to make sure that there is no misunderstanding of what our intention is.”

O’Grady was questioned Tuesday on what truckers could do if they wanted to challenge a fatigue out-of-service violation – to which he answered “FMCSA’s Data Q.” Notably, when asked if Stephen House would be entitled to file a Data Q challenge “at this moment” – he said yes.

House is an owner-operator from Washington who was put out of service in May 2008 at the Red River Weigh Station. After questioning by civilian Law Compliance Representatives Christopher Norton and James Ullmer, he was put out of service for fatigue.

He testified that the pair asked him about his neck size and how many times he used the restroom at night, whether he had a television or computer in his cab, and if he had any Playboy magazines in his cab. He said both Norton and Ullmer used a checklist.

After the inspection, the out-of-service order was issued.

Both inspectors were named defendants in the case. Norton’s documentation of this incident was non-existent and he did not even recollect it. When a random sample of Ullmer’s reports were requested by OOIDA attorneys, 18 were provided by the state. Of those, Ullmer had placed all 18 drivers out of service for fatigue.

In O’Grady’s testimony on Tuesday, he testified that he had heard House’s testimony and seen the documentation and believes that House has a “meritorious case.”

– By Sandi Soendker, managing editor