CINCINNATI, OH (FOX19) - Did Cincinnati police misplace or destroy key records that have mysteriously vanished amid a state overtime audit and allegations of “illegal” abuse by some officers scamming the system?
It’s all essentially “futile," wrote attorneys for the city and Police Chief Eliot Isaac in newly filed federal court records, contending the claim of illegal abuse and other allegations in a federal lawsuit against city and police leaders by the police captain who conducted the audit “lack merit."
Two months ago, in October, Captain Jeff Butler asked Acting City Manager Patrick Duhaney for an outside criminal and/or administrative investigation over the missing records.
After neither Butler nor his lawyer, Brian Gillan, received a response, Gillan amended Butler’s federal lawsuit against the City of Cincinnati and the police chief in November accusing the city of Cincinnati and Isaac of “spoliation of evidence."
That’s a fancy way of contending they destroyed supporting audit records that are essential to the ongoing review of the police overtime by the State Auditor’s Office.
The amended complaint also says the city and chief waited an “unreasonable length of time to attempt to find these documents and then made little effort to find them or to discover how they came to be lost or destroyed.”
The records were stored in a banker’s box and left clearly marked and secured at the police department’s Inspections Section before Butler was transferred to another area of the police department earlier this year, according to a memo Butler wrote Duhaney.
It’s not clear when a federal court judge will decide whether there is enough evidence to permit Butler’s lawsuit to proceed. The judge, Michael Barrett, has been tied up overseeing the Evans Landscaping trial for the past three weeks.
On Monday, Councilmen Greg Landsman and David Mann drafted a motion asking the city administration to report on the current Cincinnati Police Department overtime audits and steps CPD and city administration are taking to modernize and overtime processes and reduce overtime spending.
The audit, which was completed and turned over to the police chief in February, found “intentional actions to maximize compensation,” bad oversight and confusion about policy, a copy of it shows.
Gillan, who has said he hopes hope obstruction of justice didn’t occur, rebutted the city’s response in a motion he filed last week.
It reads in part: "...because spoliation is the 'destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation there is little doubt” the spoliation claim will be upheld by the court.
Gillan has said several police officers earn overtime by working hard but there are a number “very high ranking officers including a captain” who do not the work for the extra money they received.
The police chief has disputed the audit’s findings and called it a draft that was leaked to the media, not a final version.
It was leaked before it was checked for accuracy and had inaccurate figures, and has since been updated with correct and lower totals, city memos show.
But, largely as a result of the allegations in Butler’s lawsuit alleging “felony theft” of overtime by some Cincinnati police officers including Isaac’s “close personal friend and confidant, Capt. Bridget Bardua, and those under her command, Hamilton County Prosecutor Joe Deters impaneled a grand jury,” Butler’s amended complaint reads.
Deters also referred the matter to State Auditor Dave Yost for investigation.
The review is ongoing as part of the city’s routine annual audit and it appears, according to Butler’s amended lawsuit, the grand jury is still impaneled with the city still under subpoena to retain any and all records related to the audit.
“We obviously need to comply with this and should fully cooperate with any review of the audit coordinated by (Deters) office. It is important that the City be transparent,” Mayor John Cranley wrote in an email to City Solicitor Paula Boggs Muething, Duhaney and other city administrators back on April 26 when Muething forwarded them information about the subpoena.
Over the summer, the auditor’s investigative team asked city and police officials for supporting audit documentation.
The police and city officials knew the documents were missing since at least June 13 and they made no effort to find them, the suit states.
Butler back in June to give police his copies of the records, but they didn’t take him up on that, police emails show.
The issue was not addressed until Butler was asked to meet with an auditor’s investigator some four months later, city records show. It''s not clear why.
Butler was informed by police officials in in an Oct. 16 phone call the documents could not be located, the day before he and an assistant chief were scheduled to meet with the auditor’s investigator, city records show.
Immediately after that meeting, Butler hand-delivered his memo to the acting city manager requesting an outside investigation into the disappearance of the records, according to his lawyer.
The next day, on Oct. 18, Assistant Police Chief Teresa Theetge sent an email to Inspections Section employees asking if they knew where the box was or if they could recall when they last saw it, police records show.
No one knew where it was, though some recalled seeing it or at least some of the records, according to the emails.
It’s not clear if Theetge’s email inquiry to employees ever escalated to an internal investigation over the box’s whereabouts. Gillan has said no one from internal contacted Butler about the missing records.
Cincinnati police have repeatedly declined to discuss the emails, the missing box and Butler’s request for an outside investigation, referring us to the law department.
We reached out to city solicitors for comment Monday but did not hear back.
On Monday, two Cincinnati City Council members sought an update on police overtime.
Councilmen Greg Landsman and David Mann drafted a motion asking the city administration to report on the current Cincinnati Police Department overtime audits and steps CPD and city administration are taking to modernize and overtime processes and reduce overtime spending.
Mann said he plans to bring the motion up during Wednesday’s full council meeting and expects the motion will be referred to the Law and Public Safety Committee to be placed on the calendar for discussion at a future meeting.