630
 1				MR. HOLLINGSWORTH: Nothing
 2	further. Thank you.
 3				MR. BROWN: Could we maybe take a
 4	two-minute break just to talk to the client for a
 5	minute?
 6			THE ARBITRATOR: We will make it
 7	five and let everyone hit the restroom.
 8				(Recess taken.)
 9				CROSS-EXAMINATION
10	BY MR. BROWN:
11	Q	  Good morning, Captain Zager.
12	A	  Good morning.
13	Q	  Captain Zager, just to get in the chronology
14	here and see the dates - you haven't been a
15	witness in any of these proceedings up to today?
16	A	  That's correct.
17	Q	  Do you recall the date on which the grievance
18	was filed in this matter?
19	A	  Oh, no, I don't. I'll warn you in advance, my
20	ability in chronology is very, very weak, but, no,
21	I don't remember.
22	Q	  Assume that the grievance was filed on August
23	1,	1994. Would you have reviewed it shortly after
24	that?
25	A	  If it was sifted through normal channels, yes.

MIDNIGHT SUN COURT REPORTERS (907) 258-7100
		                                          631		
 1	Q	Were you anticipating that grievance to be
 2   filed?
 3	A    I suppose so, since it was so controversial.
 4	Q    Were you aware that the lawsuit had been filed
 5	on August 5, 1994, telling the Municipality to
 6	bargain this grievance?
 7	A    I recall that, yes.
 8	Q    And so the grievance was filed on August 1st
 9	and you reviewed that?
10	A	Yes.
11	Q	The lawsuit was filed on August 5th, and you
12	reviewed that -- or the complaint, or did you let
13	the attorneys deal with that?
14	A     The attorneys dealt with that portion.
15	Q     So you relied upon the attorneys' reading of
16	the complaint and following up the legal aspects?
17	A	That's correct.
18	Q	But at some point, you were contacted by Mr.
19	Bennett; correct?
20	A	For a variety of things.
21	Q	But you were contacted in regards to an
22	anticipated temporary restraining order; correct?
23	A	Oh, yes. Yes.
24	Q	He asked you to do an affidavit?
25	A	Yes.

MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											632	      
 1				MR. HOLLINGSWORTH: I'm going to
 2	object to attorney-client privilege conversations.
 3				THE ARBITRATOR: So far we haven't
 4	gotten into that. The fact that he prepared the
 5	affidavit is in the record already.
 6				MR. HOLLINGSWORTH: That's fine.
 7	BY MR. BROWN:
 8	Q	As a result of him asking you to prepare the
 9	affidavit, did you prepare the affidavit?
10	A	It was prepared for me. I reviewed it and
11	signed it.
12	Q	Who prepared it for you?
13	A	I'm going to guess it was the law firm.
14	Q	And were these affidavits that have been
15	referenced as 123 and 124, were those the
16	affidavits that in fact were drafted for you and
17	that you reviewed and executed?
18	A     Yes.
19	Q     What is the date again on those affidavits?
20	A     It looks like the 3Oth of August of '94 for
21	the first one, and, gee, I can't even read my own
22	writing.	Looks like the 13th day of October '95.
23	I believe that is the 13th day.
24	Q	Did you review them for accuracy?
25	A	I did.

			MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											633      
 1   Q     Were they accurate?
 2	A     They were.
 3	Q     And in drafting those affidavits, you had also
 4	had the opportunity at that time, I think you
 5	testified, to read the grievance and to note
 6	something about what the lawsuit was about;
 7	correct?
 8	A	Yes.
 9	Q	Did you receive any of the pleadings from Mr.
10	Bennett's office that he filed in this case?
11	A	I don't remember receiving those.
12	Q	Did you ask him about whether or not he had
13	filed any pleadings?
14	A	No, I did not.
15	Q	So the legal aspect of this and
16	interpretation, you left that to be dealt with by
17	the Department of Law or the legal department and
18	by the attorneys?
19	A     Yes, that's correct.
20	Q     Just bear with me for one second.	I'd like to
21	have you look at a memo that's been admitted as
22	Exhibit 87.
23	A     Yes.
24	Q     You prepared that memo also in anticipation of
25	the temporary retraining order; correct?

MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											634
 1	A	Yes, I did.
 2	Q	What is the date of that memo?
 3	A	August 26th of '94.
 4	Q	By August 26th of 1994, you had clearly had an
 5	opportunity to review the grievance and what was in
 6	the grievance; right?
 7	A	Yes.
 8	Q	You had executed and completed your affidavits
 9	in support of this temporary retraining order
10 	opposition that was never filed?
11	A	Yes. The first one, yes, not the second one.
12	Q	And handing you what's been marked as
13	Association Exhibit 97. According to Mr. Bennett's
14	testimony, that was filed on or about August 30th;
15	correct?
16	A     I would have to look it up.
17				MR. HOLLINGSWORTH: Which document
18	are you referring to, Counsel?
19     				THE ARBITRATOR:	Is that the
20	anticipatory response, 97?
21				THE WITNESS: It's dated August 30th
22	of '94.
23	BY MR. BROWN:
24	Q	So the document that's referenced as
25	Association Exhibit 87 was drafted not for
	
MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											635
 1	calculation purposes or analysis purposes of your
 2	overtime savings analysis, but it was really; was
 3	it not, drafted to show what the differences would
 4	be if the TRO was granted?
 5	A	That is kind of one in the same to me, but,
 6	yes, this was in response to the TRO.
 7	Q	And as late as August 16, 1994, after
 8	reviewing the grievance, after talking with Mr.
 9	Bennett and whether he relied upon your affidavit
10	to draft his opposition, you believe that should
11	the conversion to 5/8s occur on September 1st as
12	planned, all existing legal channels for APDEA
13	would still exist; correct?
14	A 	I never contemplated it. I mean, how would I
15	know what legal channels existed for APDEA.
16	Q	Would you read Roman Numeral IV that you
17	drafted and gave to the Chief of Police under your
18	signature as commander of staff services.	It was
19	your considered opinion -- your considered opinion
20	- that's on the first paragraph - that not
21	granting the TRO does not irreversibly block other
22	avenues for APDEA should the conversion to 5/8s
23	occur on September 1st as planned. In your
24	considered opinion, all existing legal channels for
25	APDEA would still exist. That's what you said -

MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											636
 1 	A	Yeah.
 2	Q	-- on August 26, 1994?
 3	A	But what that inventory is, I wouldn't know,
 4	but yes.
 5	Q	But your lawyer would know and that's what you
 6	are relying upon with Mr. Bennett; correct?
 7	A	Yes.
 8	Q	Now, Captain Zager, I guess I was sort of
 9	confused, and maybe you can clarify this in terms
10	of your testimony.  You identified, I think,
11	Exhibit 79 and 80 as some type -- is this an
12	analysis?  Exactly what is that?
13	A	Well, the first document is an analysis, and
14	the second document is the recommendations based on
15	that analysis.
16	Q	And did you ever or have you ever, either in
17	1994 or today, calculated whether or not 
18	your analysis is correct?
19	A	No, I have not.
20	Q	But your analysis in July 1994 is that --
21	well, it cites a lot of things, but basically,
22	there is going to be an overtime savings between
23	575 and 645,000. That was your analysis?
24	A	All things remaining constant yes.
25	Q	And your other analysis basically says -- they

			MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											637 
 1 	are sort of duplicative -
 2 	A 	Yes.
 3 	Q 	-- in that they come to the same conclusion?
 4 	A 	Very much so.
 5 	Q 	Turn to page two of Exhibit 80, and part of
 6 	your analysis for this overtime savings was -- 
 7 	unless I'm misstating what you're saying here,
 8 	Captain, that would be true, I suppose, with the
 9 	shift 5/lOs, but with 4/lOs the employee is
10 	automatically missing the fifth day, anyway, is not
11 	available for work because it's part of the
12 	employee's weekend.
13 	A 	That is sounds familiar. I just couldn't find
14 	it on the page.
15 	Q 	It goes down toward the bottom, the next to
16 	the last full paragraph.
17				Then you say in the last paragraph,
18 	"Who can defeat the statement that an employee
19 	would be available more workdays per year if you
20 	increased his or her workweek from four to five
21 	days"; you said that, correct?
22 	A 	I'm lost. I'm not saying I didn't. I'm not
23 	following where we're at.
24 	Q 	I'm sorry.
25				THE ARBITRATOR:	I don't see that

MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											638
 1	either
 2				MR. BROWN;  Bottom of page two,
 3	Exhibit 80
 4				THE ARBITRATOR:	Oh, I see. Okay. 
 5				THE WITNESS: Okay. I'm with you
 6	now. I wrote that, that is correct.
 7	BY MR. BROWN:
 8	Q	And Association Exhibit 80 on page five, your 
 9	net savings in that was $433,000?
10	A	Yes
11	Q	And Exhibit 81, your analysis for overtime  
12	savings basically says in paragraph one, 5/8s  	
13	reallocates this to a fifth workday; correct?
14	A 	Yes.
15	Q 	And that was part of your analysis. Is it
16	still part of your analysis?
17	A 	It is.
18	Q 	And is Exhibit 83 admitted? Do we have that
19 	yet?
20				THE ARBITRATOR:   	No.
21				MR. REYNVAAN:   I don't either.
22				MR. BROWN:  Let me see if we have it
23	here.
24				THE ARBITRATOR:  Do you want a
25	minute off record?

	MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											639
 1					MR. BROWN:  Yes.
 2					(Recess taken.)	
 3	BY MR. BROWN:
 4	Q	Referring to 83, did you author this well?
 5	A	It looks familiar, but I can't place which
 6	document it comes from.
 7	Q	But you were the only person authoring these
 8	type of memoranda; correct?
 9	A	I don't know.
10	Q	Can you review this and tell me whether or not
11	you authored it?
12	A	It looks very familiar.  I just don't know
13	what document it comes from.
14	Q	I understand that.  For purposes of
15	identification, do you agree that you authored to?
16	Yes.
17	Q	You spoke of ratios a minute ago, the ratios
18	you were discussing?
19	A	Yes
20	Q	Your ratio was based on 5/7's, which would be
21	working five out of seven days?
22	A	Yes
23	Q	And 4/7s versus working four out of seven
24	days?
25	A	Right.

MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											640
 1 	Q 	You were using that ratio in part to calculate
 2 	your overtime savings; correct?
 3 	A 	For staffing, which would have an impact on
 4 	overtime savings.
 5 	Q 	And Exhibit 89 (sic); do you know George
 6 	Vakalis?
 7 	A 	Yes.
 8 	Q 	Was he relying or do you know - does it
 9 	appear that he was relying on your ratio in -- go
10 	down to the seventh triangle there. Is that the
11 	ratio that you were using as well?
12 	A 	Yes, we shared that.
13 	Q 	And the $400,000 in projected overtime savings
14 	as a result, at least in part of that -- 
15 			THE ARBITRATOR: Wait, wait, wait.
16 	You're referring to 89?
17			MR. BROWN:	84.	I may have said
18 	89.
19			THE ARBITRATOR:	Let the record
20 	reflect we're looking at Exhibit 84.
21 	BY MR. BROWN:
22 	Q 	The $400,000 on first-year overtime, and
23 	savings in the second year of 500,000, those were
24 	the figures you were giving him?
25 	A 	That is part of it, yes.

MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											641
 1 	Q 	Giving you Exhibit 123. In your affidavit at
 2	paragraph 27, again, this was to keep the TRO that
 3	was never filed from being granted; correct?
 4	A	Yes.
 5	Q	You again estimated 600,000 to 400,000;
 6 	correct?
 7	A	Yes. Well, I estimated a net of 400,000. 
 8	Q	Do you have Exhibit 124 handy, your second
 9	affidavit?
10	A	Yes, I do.
11	Q	Now, when you did the second affidavit -
12	again, you understand that the court relies upon
13	affidavits in rendering decisions, hopefully;
14	correct?
15	A	Sure.
16	Q	It's important to be accurate; correct?
17	A	Yes.
18	Q	And it's important not to mislead or to say
19	something that could be misconstrued? All of us do
20	it, but to the extent you can avoid it, you try not
21	to?
22	A	Yes.
23	Q	As I understand your testimony today, you have
24	never done anything up to and including today to
25 confirm your analysis of the overtime savings?
26 
MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											 642
 1 	A That's correct.
 2	Q	And, yet, paragraph three says both of these
 3	expectations have been realized. Was that
 4	completely accurate or were you just estimating
 5	that they had been realized?
 6	A	Let me see.
 7	Q	There's been a significant reduction of
 8	overtime and premium pay expense because you
 9	adopted the 5/8s workweek. You didn't know that at
10 	the time; you were hopeful, or you were just
11 	thinking?
12 	A 	Intuitive, yes. I mean, I felt that at the
13 	time.
14 	Q 	But then you say the adoption of 5/8's work
15 	schedule by itself, none of these other factors -- 
16 	the adoption of the 5/8s work schedule by itself
17 	has saved hundreds of thousands of dollars. Now,
18 	that's what you said under oath in an affidavit in
19 	October of 1995; right?
20 	A 	That's correct.
21 	Q 	And, yet, when you signed that affidavit, you
22 	had no idea whether or not it had saved hundreds of
23 	thousands of dollars at all?
24 	A 	I felt it had at the time.
25	Q	You've had now four years since then, and

MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											643
 1	you've had a chance to see and to estimate what the
 2 	savings have been. Tell us what they are?
 3  	A Do bear in mind that the context of going to
 4 	5/8s at the time was a staffing shortage. My
 5 	primary target was not overtime. So I have never
 6 	done an analysis, and I have not been asked to do
 7 	an analysis. So I don't have a clue how much money
 8 	has or has not been saved.
 9 	Q 	This isn't a personal attack. Let me just
10 	rephrase the question. And maybe you have already
11 	answered it. When you said in your affidavit under
12 	oath in October of 1995 that the adoption of the
13 	5/8s work schedule by itself has saved hundreds of
14 	thousands of dollars, you didn't know then and you
15 	don't know today whether or not that statement is
16	true?
17			MR. HOLLINGSWORTH:	Asked and
18 	answered.
19			THE ARBITRATOR: No. Overruled.
20			THE WITNESS: Could you restate the
21	question again? I'm sorry.
22	BY MR. BROWN:
23	Q 	When you said that the adoption of the 5/8s
24	work schedule by itself has saved hundred of
25	thousands of dollars, under oath on October 13,

MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											644
 1 	1995, you didn't know then and you don't know today
 2 	whether or not that statement is true?
 3 	A 	I had confidence then, but I certainly didn't
 4 	have the analysis to support it.
 5 	Q 	Again, you didn't know?
 6 	A 	I didn't know.
 7 	Q 	You don't know today?
 8 	A 	No, I don't.
 9 	Q 	Now, you had meetings with - I think you
10	testified that you talked to Rob Heun.	Did you
11	talk to Will Aitchison as well regarding this
12	grievance?
13	A 	Yes.
14	Q 	Did Rob Heun or Will Aitchison ever tell you
15	that the Anchorage Police Department Employees
16	Association would not be seeking monetary damages
17	in this case?
18	A	Did they make that statement?
19	Q	Yes.
20	A	I don't recall them ever making that
21	statement. I don't remember discussions having to
22	do with monetary aspects of the grievance.
23	Q	And, again, you were deferring the legal
24	discussions of this case to Mr. Bennett and to, I
25	guess, Mr. Tierney and to mayor's office?

MIDNIGHT SUN COURT REPORTERS (907) 258-7100
											645
 1	A	Yes
 2				MR. BROWN:	No further questions.
 3				REDIRECT EXAMINATION
 4	BY MR. HOLLINGSWORTH:
 5	Q	Captain, I just want to ask you one question
 6	about 124.
 7	A 	Okay.
 8	Q 	When you signed that declaration, was it true
 9	to the best of your knowledge and belief?
10	A	It was absolutely.
11				MR. HOLLINGSWORTH:	Nothing
12 	further.
13			MR. BROWN:	Before we go to another 
14 	witness, just for my sanity, can we get this 
15	exhibit pile in order, because -- 
16			MR. AITCHISON: I just did put it in
17	order.
18			MR. BROWN:  But now I've got some of
19	these that we pulled out.
20			THE ARBITRATOR:  Take another
21	break.
22			(Recess taken.)
23			(Ron Maus sworn.)
24			MR. BROWN:  It's my understanding --
25	I can be corrected -- it won't be the first time --

MIDNIGHT SUN COURT REPORTERS (907) 258-7100


§ 11.56.820			Criminal Law						386

violates AS 11.56.820(a)(3)with intent to obtain a benefit for that person or any person or to injure or deprive another person of a benefit.
  (b) Tampering with public records in the first degree is a class C felony. (§1 ch 51 SLA 1985)
  Sec. 11.56.820. Tampering with public records in the second degree. (a) A 
person commits the crime of tampering with public records in the second degree if the person
 (1) knowingly makes a false entry in or falsely alters a public record
 (2) knowingly destroys, mutilates, suppresses, conceals, removes, or otherwise impairs the verity, legibility or availability of a public record, knowing that the person lacks the authority to do so; or
 (3 certifies a public record setting out a claim against a government agency, or the property of a government agency, with reckless disregard of whether the claim is lawful, or that payment of the claim is not authorized in the budget of the government agency.
 (b) In this section
 (1) "certifies" means attesting to the existence, truth, or accuracy of facts, or that one holds an opinion, stated in a public record; the term includes the responsibilities for state officials set out in AS 37.10.030;
 (2) "falsely alters" has the meaning ascribed to it in AS 11.46.580; and
 (3) "makes a false entry" means to change or create a public record, whether complete
or incomplete by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or by any other means, so that the record so changed or created states or implies a fact that the maker knows is not true, or states or implies an opinion that the maker does not hold.
 (c) Tampering with public records in the second degree is a class A misdemeanor. (§ 6 
ch 166 SLA 1978;am § 2 ch 51 SLA 1985)

Effect of amendments.  The 1985 amendment added "in the second degree" at the end of the catchline; in subsection (a) insereted "in the second degree" and deleted "knowlingly" following "person" in the introductory language, inserted "knowingly" in paragraphs (1) and (2), added paragraph (3), and made related stylistic and punctuation changes; designated former subsection (b) as present subsection (c) and in subsection (c) inserted "in the second degree"; and added subsection (b).

Opinions of attorney general. - When an official of a land title company seeking to file a warranty deed in Alaska, in the presence of the recorder altered a California notary clause to change the name and title of the person that the California notary public swore had appeared before her, the alteration may well hve violated this section. December 22, 1987, Op. Att'y Gen.

NOTES TO DECISIONS

  For case construing former AS 11.30.240 -
11.30.260, relating to mishandling of public records, 
see Larson v State, 564 P2d 365 (Alaska 1977)

  Sec. 11.56.830. Impersonating a public servant. (a) A person commits the crime of impersonating a public servant if the person pretends to be a public servant and does any act in that capacity.
 (b) It is not a defense to a prosecution under this section that
 (1) the office the defendant pretended to hold did not in fact exist; or
 (2) the defendant was in fact a public servant different than the one the defendant pretended to be.
 (c) This section does not apply to a peace officer acting within the scope and authority of the officer's employment.
 (d) Impersonating a public servant is a class B misdemeanor. (§6 ch 166 SLA 1978)