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Officer’s Journey through an Investigatory Nightmare

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The following will be appearing in the March edition of the Minnesota Police and Peace Officers Association newsletter. The case was arbitrated over a two-day period in July 2013, with Chris Wachtler representing the Minnesota Conservation Officers Association. The Association was successful in getting demoted Conservation Officer Don Murray reinstated to his Lieutenant’s position, and the state of Minnesota was ordered to reimburse him for full back pay and costs incurred relocating across the state following his demotion.

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“I was not born privileged, but I was born with a good name,
and I’d like to keep it.”

– Minnesota Conservation Officer Don Murray, July 25th, 2013 arbitration hearing.

No one can truly understand what a law enforcement officer goes through when he or she becomes the target of an investigation, facing potential or actual discipline. The officer feels the psychological impact of such a situation each and every moment of each and every day. The impact is especially significant when an officer is falsely accused and then subjected to a biased, inaccurate and lengthy investigation followed by a grievance process delayed because of his or her employer’s actions.

From July, 2012 through September, 2013, Minnesota Conservation Officer Don Murray lived this nightmare. His ultimate vindication at arbitration provides some satisfaction, but leaves lingering questions about the integrity of the process and the integrity and competence of DNR leadership itself, and leaves a bitter taste in the mouth of an officer called to conservation from an early age.

Born to be a conservation officer

Lt. Don Murray, a CO for the last 17 years, was born and raised in Mountain Iron, Minnesota in the heart of the Iron Range.  He gained an appreciation for Minnesota’s natural resources at a very young age. He was active in Boy Scouts, where he rose to leadership positions, and spent as much time outdoors as he could.

Don also learned to fly at a young age – his father was a pilot and he grew up around airports and planes in a “family of flyers” (he was 6 years old before he realized “not everyone owned an airplane”), and when he earned his private pilot certificate it made him a third-generation Murray pilot.

He served in the Minnesota Air National Guard in Duluth after high school, attended Vermillion Community College where he earned his Natural Resources degree, and after interning with the St. Louis County Sheriff’s Department, landed his dream job as a CO in 1997. For the next 15 years he served the public and our natural resources ethically and proactively.

Then, on a warm July day in 2012, his employer permanently altered the course of his professional life. On that day, with the MCOA President and attorney by his side, Don walked into the DNR office in Brainerd to give a compelled statement to a human resources investigator who had failed to give him proper information about why he was being questioned, and who had already decided what the result of her biased investigation would be.

The Moving Marten

The story really begins in early 2012, which found Don Murray–a very experienced and tenured DNR pilot–flying radio telemetry missions out of Grand Rapids, tracking the movements of collared moose, wolves, sturgeon, bear and marten twice a week, weather permitting, in a small plane equipped with a telemetry box, an antenna, and headphones.

He’d been flying these missions for a number of years, for the DNR and on a contract basis for other organizations such as the Fond du Lac Band. It was dangerous work, flying alone at low altitudes while simultaneously operating telemetry equipment and marking animal signal locations. But Don’s commitment to safety, attention to detail, and exemplary work habits were well-established and well-known by those with whom he worked.

One animal Don was assigned to track was the American Marten, a small member of the weasel family. The marten study has focused on a 90 mile area over the past 8 years where nearly 60 marten have been captured and collared for purposes of study.

On January 6, 2012, DNR researchers removed a collar bearing frequency 7606 from a deceased marten and redeployed it on a different, live marten approximately 5 ½ miles to the northeast.  Lt. Murray flew telemetry missions on January 10 and January 19, and located the collar in question… in the area of  where the body of the first, deceased marten had been recovered. But two other DNR employees, working with equipment on the ground, reported locating the collar’s signal within a mile of the site where the second marten had been captured, collared and released. The signal then disappeared for six weeks, when it was located (again) approximately 4 miles northeast of Don’s January 10 and 19 locations.

The DNR biologist in charge of the project, John Erb, saw this data, scratched his head, and wondered what the explanation could be. Marten typically don’t move such distances in such a short amount of time, he thought, back and forth.  But instead of approaching Don and asking him what may have happened he took the matter to Murray’s supervisor, Captain Al Buchert, another member of the air-wing in Grand Rapids.

Friction existed between Buchert and Murray at this time and so, of course, like a snowball rolling downhill Erb’s report ended up on the desk of Major Roger Tietz, and then on the desk of human resources investigator Marna Johnson, who on that warm July day in 2012 traveled to Brainerd to interview Lt. Murray.

Neither Lt. Murray nor his representatives had much of a clue regarding what Johnson intended to ask about that day. Her letter giving notice of the complaint was far from complete, and made no mention of marten. However it soon became apparent that the “moving Marten” was the sole reason for the interview, which became inappropriate at times with Johnson asking questions about Lt. Murray’s personal life and motivations for “falsifying data”. Clearly she and her agency had already decided that Murray had deliberately submitted false locations for the marten in question.

For his part, after recovering from the ambush, Lt. Murray made it clear that he had falsified nothing. He reminded Johnson that he had informed his supervisors that he had documented hearing loss and that the DNR had even sent a hearing safety expert up in the plane with him at one point. That expert recommended that the biologist fly with him in order to hear some of the interference and other “ghost signals” that he was hearing on his headset. He denied falsifying data. If that’s where he had marked that signal, that’s where he had heard that signal.

The investigation dragged on for another five months. Finally, on December 3, 2012, after declining numerous opportunities to send a representative up in the plane with Lt. Murray, DNR Lt. Col. Rodmen Smith made the decision to demote him and assign him to the Two Harbors station.

Don would be stripped of his wings, and forced to incur tens of thousands of dollars in costs selling his home in Grand Rapids. He would be forced to move away from his wife and family for the duration of the grievance process that followed his demotion, and live for over four months in a camper parked at the Two Harbors airport while awaiting his two-day arbitration hearing in July 2013.

Falsely accused of falsifying data and lying to his employer, he would be forced endure the mental and psychological stress associated with the uncertainty, rumors, and damage to his reputation.

Meanwhile Captain Buchert, who had retired in September 2012 and was now drawing his pension, began flying telemetry missions for the DNR out of Grand Rapids on a contract basis… flying Don’s old marten survey.

Step 4: Arbitration

After the union had to bring an Unfair Labor Practice charge against the DNR in the Spring of 2013 for its failure to move the grievance to Step 3 in a timely fashion, and arbitration date was finally set for July 2013 with Arbitrator Jay Fogelberg.

The hearing was hotly contested, to say the least, and all present learned more about the American Marten and telemetry than they had ever hoped to.

MCOA argued that any number of factors, or some factors in combination, could have led to Lt. Murray hearing a signal in the location he did in January 2012. Even the DNR’s key witness, Erb, could not say with absolute certainty what had occurred.

It was established that Murray has documented hearing loss, and that the safety expert who flew with him recommended that he be entered into a formal hearing conservation program requiring annual audiograms, and recommended that the biologist accompany Murray on a flight and experience interference and skipped animals, and the logistics of a long day of telemetry survey.  None of these things, of course, happened.

Documented equipment issues, which Murray had been attempting to address for months, existed. Equipment that Murray was using for the telemetry survey was not functioning properly at certain times and he sought to fix that problem. It remained unresolved into 2012. Testimony at the hearing was clear: different equipment and different planes can often yield different telemetry results.

Johnson included in her investigation, and cited as support for some of her conclusions, a marten study that had been performed by Drs. David Mech (probably one of the world’s foremost experts on telemetry) and Lynn Rogers.

Unfortunately for the DNR, MCOA was actually able to secure live testimony from Dr. Mech — in support of Murray.

It was established through Dr. Mech’s testimony that the marten in question could have, in fact, moved back and forth to the locations documented. Or that some other animal or bird wearing a collar on the same or similar frequency which could “bleed over” onto 7606 could have been in the area.  Or that some railroad, mining or other industrial operation could have created a signal, because telemetry “is not an exact science”.

Officer Murray testified that following his Garrity statement in July 2012, he tuned in frequency 7606 at the Grand Rapids airport, some 90 miles away from the area where the collar had been redeployed and was able to receive a signal.

For his part, Erb was forced to concede that marten do move and disperse and that it is not uncommon for a marten to move 4-5 miles in one day. He conceded that one marten that had been trapped near Hill City, Minnesota had moved over 75 miles.

He also conceded that it was entirely possible that Lt. Murray was hearing some other “phantom” signal on the two occasions in question, and that after he became suspicious regarding the data he could have taken a flight with Murray to try to hear what Murray was hearing, but never did.

Captain Buchert, despite his assertions about how predictable and generally error-free marten telemetry usually is, was forced to admit that he once located a police scanner in someone’s basement in downtown Hoyt Lakes, that he was so sure was a dead marten that he was willing to obtain a search warrant for the home.

Other relevant questions arose — Murray requested that his superiors fly with him and hear what he was hearing. They refused to do so. Why? If they were so sure about what happened here, why not take the flight, hear no signal, and close the case shut? By the same token, why would Murray offer to take that gamble if in fact he had not actually heard a signal? And why did the DNR allow him to fly telemetry missions for ten months after January 2012, charging customers for his data, if it believed he had supplied false data? And finally, perhaps the biggest head-scratcher, what would Murray have to gain by falsifying data in the first place?

In the end, the Arbitrator agreed that resolving concerns about the questionable data could have and should have been accomplished through a conversation between Erb and Murray, and perhaps Buchert. The arbitrator reinstated Lt. Murray (leaving him with a simple written admonishment to be more careful about his signal reports) stating that “the evidence in the record does not begin to establish… deliberate falsification of data as alleged by the employer.” He returned Murray to his pilot position in Grand Rapids and ordered that he be made whole for lost wages incurred (back pay) back to the date of his demotion. Included in the DNR’s financial obligation were any out-of-pocket expenses Murray incurred in connection with his relocation to Two Harbors.

Current MCOA President Darin Fagerman attended every minute of the hearing, and walked away disillusioned, to say the least. Said Fagerman: “The cost to the taxpayer in this case was totally unwarranted. It’s an outrage. You have a completely biased investigation, a total lack of accountability by management, who refused to go up in the plane with Don and resolve the issue. A 17-year veteran of the DNR and they wouldn’t even talk to him. They ship him over to Two Harbors without even thinking about it. This was a total failure from the Commissioner’s office down.”

Epilogue

Don has been granted his back pay and his moving expenses incurred to date have been reimbursed. But as any officer who has been through something like this knows, it can never be the same. Years spent in dedicated service to his employer and the public are now tainted by this experience. Inflammatory statements made about him by the administration at the hearing cannot be retracted.

Don was reinstated and began flying telemetry missions last October. During one of these missions his new Captain finally flew with him. In a final ironic twist, as Don flew over his January 10 and 19, 2012 marten location, he adjusted his receiver box… and pulled in a clear signal on frequency 7606.

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