Former TD Police Officer Jeff Kienlen to Bring Lawsuit Against City of The Dalles
Former City of The Dalles Officer Jeffery Kienlen has given notice that he intends to bring a lawsuit against the City of The Dalles ‘and its employees, and any agents or employees of those named for personal damages arising from claims of intentional interference, false light, and unlawful termination’. The notice was sent to the City of The Dalles, The Dalles Police Department, Wasco County District Attorney Matthew Ellis, and Katy Coba, Director of the Department of Administrative Services at the State Offices in Salem.
Kienlen’s notice to present a lawsuit included demands that all City, Police, and Admin documents related to allegations of misconduct, policy violations, or investigations and discipline be turned over to Thenell Law Group, which is representing Kienlen. The request for documents includes a request for employee emails, text messages, and voicemails relating to Kienlen over the course of his employment.
Kienlen’s employment with the city was terminated on March 5th, 2021 after he had been found unfit to serve after he was placed on the Brady Cops list, effectively barring him from testifying in court due to prior ‘intentional and malicious deceptive conduct’.
The investigation leading to Kienlen’s termination began with the discovery of a ‘Notice of Discipline’ in which Kienlen was demoted from Detective Sergeant to Patrol Officer by Chief Jay Waterbury for having violated the City Police Policy for Truthfulness when he lied about staying in two nights in a hotel with former Wasco County Deputy District Attorney Leslie C Wolf while he was at a Eugene work conference in February of 2011.
The disciplinary notice was considered to be Brady material.
What is Brady material?
According to The California Innocence Project, “Brady material law is a technical term for a specific type of prosecutorial misconduct. It is derived from the United States Supreme Court case Brady v. Maryland, 373 U.S. 83 (1963). In that case, the Supreme Court held the prosecution must turn over any evidence favorable to the defendant. Thus, Brady material is evidence discovered – but suppressed – by the prosecution that would have helped the defendant in some way, by proving his or her innocence, impeaching the credibility of a witness, or reducing his or her sentence.”
The discovery of the Brady material (the letter) prompted newly elected Wasco County DA Matthew Ellis to launch a 10 year investigation and case review into Kienlen. The investigation’s purpose was to examine prior cases in which he was involved, including cases in which Kienlen was the sole witness and cases in which Kienlen was a witness and Wolf was the prosecutor.
Ellis said that he had notified several defense attorneys that the letter (which was never previously released by former Wasco County DA Eric J Nisley to defense attorney’s - even those that had specifically requested it as a matter of public record), could constitute ‘withheld evidence’ in their cases and that some of their past cases may warrant review. Community members who had cases in which Kienlen was witness and Wolf was prosecutor should reach out to their lawyers to see if their case is one of those that may warrant review.
“This letter, finding that Officer Kienlen lied and was demoted for lying, was never disclosed to any defense attorney,” Ellis said in a report to the Oregon State Bar. “Both Mr. Nisley and Ms. Wolf were aware that Officer Kienlen was sanctioned severely for lying. By any Brady standard, even if he was not placed on the Wasco Co DA Brady list, they had a duty to disclose the letter in any case where he could appear as a witness… They continued to use him as a witness without disclosing evidence regarding his credibility through 2020… Mr. Nisley made public statements that appeared to be full disclosures of all allegations against Officer Kienlen but deliberately withheld information regarding the letter.”
The lawsuit brought by Kienlen will likely be at least partially focused on proving that the disciplinary letter discovered by Ellis was not Brady material that would prevent him from testifying in court.
The lawsuit may include statements from former Wasco County DA Nisley who said that the disciplinary letter did not constitute Brady material. The key arguments made in Nisley’s account were, that the letter did not constitute Brady material because “a police officer’s prior false statement about personal matters are not appropriate impeachment under OEC 608(2) and that the letter “does not meet the Brady test of evidence that is material either to guilt or to punishment”.
Nisley’s legal defense Lawrence Matasar said that “Mr. Nisley’s carefully considered decision not to disclose it (the letter) was completely appropriate.”
However, current Wasco County DA Ellis has argued the opposite side and said that the letter is very clearly and “unambiguously” Brady material.
In April of 2013, Ellis reported possible ethical violations involving Nisley, Wolf, and Kienlen to the Oregon State Bar.
“After consulting with the ethics hotline, it appears we have an ethical obligation pursuant to Rule 8.3 to provide information concerning possible ethical violations involving former Wasco County District Attorney Eric Nisley (OSB 951049), and former Wasco County Deputy District Attorney Leslie C Wolf (OSB 96427). The rules we believe may have been violated are Rules 1.1, 1.3, 3.3, 3.4, 3.8, and 4.1.” wrote the DA’s office
Ellis’s report to the bar detailed at least two occasions when Nisley denied requested access to the disciplinary letter.
“In April of 2011 Brian Aaron made a public records request. He specifically requested a letter that concerned Officer Kienlen’s demotion for involvement with Ms. Wolf. Mr. Nisley denied the request. He did not acknowledge that the letter existed and stated that even if it did not exist he did not need to disclose it because lies of a personal nature are not Brady material. Also in April of 2011, local media ran a series of articles relating to Officer Kienlen and the gun incident. While the district attorney’s office made available information regarding the incident, the office never released information regarding the discipline for lying,” read Ellis’s report.
In November 2011, during the Kevin Hester case, Nisley once more concealed the letter on the grounds that it was not Brady material, when Judge John Olson made a discovery request that included all Brady material. Judge Crowly did the in camera review and stated that if such a letter were included with the motion he would have ordered its disclosure. Officer Kienlen was the lead officer on the case and the only witness that testified to the grand jury which was conducted by Leslie Wolf.”
However, despite Nisley’s assertion that the letter was not Brady material and therefore not evidence, upon the election of a new DA the letter came back to light, and was subsequently treated as Brady material.
The Da’s report to the bar also provided context for events surrounding and leading up to Kienlen’s demotion and the writing of the disciplinary letter.
From the report:
“Factual Background
In the summer of 2010 Attorney Brian Aaron began inquiring into the nature of the relationship between Wasco County DA Leslie C Wolf and Officer Jeffery Kienlen” and that “Mr. Aaron believed that Ms. Wolf and Officer Kienlen were having an affair and that the affair gave Officer Kienlen motive or bias to shade his testimony or twist what he was saying to assist Ms. Wolf in securing convictions in her cases. In response to Mr. Aaron’s motion to present evidence to their affair for bias, Mr. Nisley assisted Officer Kienlen in drafting an affidavit, which was filed with the court, attesting to Kienlen’s close personal relationship with Ms. Wolf, but denying an affair.
During the hearing of admissibility of evidence concerning the relationship between Ms. Wolf and Officer Kienlen, Officer Kienlen reiterated the information in his affidavit. Ms. Wolf attended the hearing. Mr. Nisley argued the case for the state. Judge Kelly ruled from the bench that information regarding the nature of Ms. Wolf and Officer Kienlen’s friendship relationship was admissible as impeachment evidence for bias. However, he said outside information regarding the rumors of an affair were not admissible. The defense was allowed to ask Officer Kienlen about his relationship and no other witnesses concerning the alleged affair were allowed.
While Mr. Aaron was inquiring into the relationship and attempting to admit evidence of the relationship in cases prosecuted by Ms. Wolf, Officer Kienlen was also being investigated for potential misconduct concerning the handling of a gun that was seized by the local narcotics taskforce. As a result of that investigation, a chief of the criminal division of the Oregon DOJ expressed concerns regarding the ethics of Officer Kienlen. Additionally Officer Kienlen was reprimanded by the police chief for bringing discredit to the office. His formal reprimand occurred on December 3rd, 2010.
During the week of February 7, 2011, Officer Kienlen attended a training in Eugene. He requested his own room during the conference. The police chief denied this request. Officer Kienlen then requested use of the city vehicle to stay with a cousin nearby. The chief granted this request. Officer Kienlen had no cousin anywhere in the area. Instead, he used the city gas card to gas up the city vehicle and drove from Eugene to Salem to stay in a hotel room with Ms. Wolf, who was attending a different conference there, on two separate occasions during the training.
When Officer Kienlen returned from the training he met with the police chief and another officer regarding the gun incident and the conference. On February 17, 2011 the chief issued a notice of discipline in the form of a letter demoting Officer Kienlen from Detective Sergeant to Patrol Officer. The basis for the demotion was violating the City of The Dalles Police Department policy for truthfulness. The chief repeatedly describes Officer Kienlen’s statements as “false”. He states that Officer Kienlen has lost the respect of his officers and writes “When you lie to me, I look at the person that is supposed to be a leader of our officers and wonder, where did I fail? Disappointment is huge.” During our Brady hearing with Officer Keinlen, he stated that he attempted to have the police chief re-write the notice with different language or for violation of a different rule but the chief refused.”
Ellis’s report also took care to state that the Wasco County DA’s Office was NOT alleging, nor was it their business to allege whether or not Kienlen and Wolf were having an affair .
“We are not alleging, nor is our business, that Officer Kienlen and Ms. Wolf had an affair. However, Officer Kienlen testified under oath that he and Ms. Wolf were friends. He stated repeatedly, “just friends”. Their relationship was clearly of an intimate nature that transcends the average person’s reasonable understanding of the definition of close friends.”
“We are not alleging that it is inappropriate for a deputy district attorney to have an intimate relationship with an officer in law enforcement,” Ellis continued, however “It is inappropriate for that prosecutor to continue to prosecute cases using that officer as a witness. Any case involving that officer as a witness should be handled by another attorney in the District Attorney’s office.”
Wolf has also said that the relationship between her and Kienlen was that of a close personal friendship. In her letter detailing her account of events to the Oregon State Bar Wayne Mackeson wrote “Ms Wolf reports that at no time subsequent to July 6, 2010 did her relationship with Officer Kienlen ever develop into anything more than a close, personal friendship. The Wolf and Kienlen families have remained close, personal friends. Rumors that she and Officer Kienlen were having “a romantic extramarital affair” or that they were involved in “a romantic intimate relationship,” etc., are false.”
Mackeson, concluded Wolf’s account saying, “At all times Ms. Wolf was candid with the Court. She made no misrepresentations regarding the nature of her friendship with Officer Kienlen. On behalf of the Wasco County District Attorney’s office, Mr. Nisley made a thoughtful, reasoned, and, I would say, correct decision as to why the Notice of Discipline did not constitute Brady material... Taken together, the complaints are premised on a mishmash of rumor, innuendo, and gossip and, at their core, they are blatantly sexist and utterly without merit.”
Wolf and Nisley’s accounts could appear as supporting testimony for Kienlen in his lawsuit.
