ISP detective alleges retaliation, cover-up in whistleblower case

ISP whistleblower lawsuit begins in Boise.

BOISE -- An explosive civil case kicked off in Boise Monday, alleging that commanders at the highest levels of the Idaho State Police engaged in cover-ups and retaliation against one of their own employees to protect a deputy who killed a man in a 2011 crash.

Plaintiff Brandon Eller, who currently works as a detective for ISP, said he was passed over for promotion and his crash reconstruction career stalled after he fought back against what he believes were unethical directives.

Eller has filed a lawsuit against the Idaho State Police under Idaho’s Whistleblower Act, designed to protect employees who speak out about wrongdoing. KTVB was allowed to video record the hearing Monday, but Judge Nancy Baskin prevented reporters from recording audio of the lawyers and witnesses speaking.

The complicated case centers on an October 2011 crash in which a Payette County deputy, speeding en route to an emergency call, slammed into another driver's Jeep, killing him.

Police say Deputy Scott Sloan was driving at speeds of about 115 mph down Highway 30 in Payette County and passing cars on the left when Barry Johnson of New Plymouth made a left turn into his own driveway as Sloan tried to pass him.

Sloan's patrol vehicle slammed into the Jeep, ejecting Johnson and leaving his vehicle a twisted ball of metal. Johnson suffered a massive head injury, and died at the scene.

Idaho State Police was called in to investigate the crash. Trooper Justin Klitch acted as the original crash investigator, before handing off his report to crash reconstructionist Cpl. Quinn Carmack.

Carmack finalized his report in December 2011. In it, his listed "Causational Factors" his investigation led him to believed had caused the wreck.

  • Officer was traveling an average of 115 miles per hour from Custer Road to the beginning of the braking marks of the Ford
  • Officer was traveling a minimum of 101 miles per hour when he began to brake
  • Officer made an unsafe pass
  • Officer was operating an authorized emergency vehicle in an unsafe manner by driving without due regard for the safety of all person(s) and reckless disregard for the safety of others

Eller's lawyers say the higher-ups at ISP were unhappy with Carmack's findings, calling a meeting and demanding to make changes.

“They did not like the language in the causational factors that the officer was driving unsafely,” attorney Erika Birch said Monday.

Birch said ISP commanders in the meeting also wanted Johnson's blood alcohol content - which tested at least once above the legal limit of .08 - included as causal factors in the wreck.

ISP Lt. Col. Sheldon Kelley remembered the meeting differently, testifying he relayed to Carmack that he thought the report was “not a good work product” but did not order him to change it.

“I didn’t order, we all came to a consensus at the end of that meeting, but I can’t speak for how he believed,” Kelley said.  

The report was edited, scrubbing references to Sloan's unsafe driving. The revised report also changed the "Causational Factors" section to "Conclusions," and added information about both Sloan's lights and sirens and Johnson's alcohol consumption. 

The attorney said Eller, who  had interviewed Sloan after the fatal collision and helped Carmack with speed calculations, was also called into a meeting with commanders in which he felt "pressured to agree" that Johnson's alcohol consumption and failure to yield to the deputy bearing down on him were causes of the crash.

Both Carmack's original report and a second, edited version that re-labeled the list of "Causational Factors" as "Conclusions" found their way to the Payette County prosecutor, who ultimately charged Sloan with manslaughter.

Eller, Carmack both testified at Sloan's preliminary hearing that the officer's unsafe driving was the cause of the collision, and that Johnson's blood alcohol content was not significant in the crash, contradicting Klitch, who testified in the same hearing that the man's BAC was a cause in the crash.

The backlash was immediate, the plaintiff's attorneys said.

At ISP headquarters, commanders huddled up to discuss their displeasure at Eller and Carmack's testimony.

“Those boys will be lucky to have a job working nights and weekends," Birch quoted one commander as saying.

Lt. Col. Ked Wills, who was appointed to ISP's highest office in May, also weighed in, telling another officer “I can’t believe the Idaho State Police is going to send a deputy to prison,” according to the plaintiff's lawyers.

In 2013, ISP issued a directive to ISP officers that draft reports in crash investigation cases should be destroyed, an order Eller said he raised ethical concerns about, only to be shut down.

Prosecutors dropped the charges against Sloan later in 2013, citing the conflicting accounts from ISP.

Birch said Eller was "labeled a disgruntled employee” and his once-stellar performance reviews dropped, with one supervisor writing he would be “well-served by softening his opinions on confrontational matters.”

In addition, lawyers say, Birch was was reassigned to patrol, working nights and weekends. Eventually, the entire Crash Reconstruction Unit was disbanded, crushing Eller's hopes of rising to the unit's top rank.

In the years following Sloan's crash, Eller said, he was denied a pay raise, told he would no longer be allowed to instruct officers on crash reconstruction, became the focus of a sexual harassment claim that was ultimately concluded unsustained, and was passed over for a promotion to sergeant.

But lawyers for Idaho State Police say there was no retaliation, arguing that Eller was trying to pin every slight on a years-old crash investigation.

Attorney Andrew Brassey told jurors that ISP's normal policies and changes to training in the department were responsible for the things Eller listed as retaliation.

Eller was “mathematically eliminated” from contention from the Sergeant spot after others vying for the position received better testing scores, Brassey said, noting that Eller later applied for and received a promotion to detective instead.

Likewise, the decision to disband the Crash Reconstruction Unit was made by a captain supportive of Eller, who wanted changes to get more off ISP's troopers out on patrol, Brassey said.

The attorney also took issue with the idea that the sexual harassment investigation was intended to punish Eller for his role in the Sloan investigation.

“Potential sexual harassment isn’t something that gets swept under the rug,” he said. “There is not one shred, not one iota piece of evidence that it had anything to do with anything other than a woman reporting something to her supervisor.”

The trial portion of Eller's civil case is expected to last up to two-and-a-half weeks, although the judge told potential jurors they would not be required to be in court Aug. 21, the day a total solar eclipse will be visible in Idaho. 

Testimony is slated to continue Tuesday. 

© 2017 KTVB-TV


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