CINCINNATI (FOX19) - A veteran Cincinnati police official is suing the city of Cincinnati and Police Chief Eliot Isaac in his professional and personal capacity.
Captain Jeff Butler wants a judge to throw out what his attorney says is a “damning and tainted” internal investigation report and the resulting administrative charge, according to a copy of the lawsuit filed Wednesday morning in Hamilton County Common Pleas Court.
A hearing is set for Aug. 29 before Judge Robert Ruehlman.
Butler, who has been with Cincinnati police his entire 32-year career, received a written reprimand for “Failure of Good Behavior” on July 3. It was related to remarks Butler made about the chief, implicating him, during the internal investigation.
A peer review panel determined the five-month probe was “not fair or objective,” however.
The investigation looked looked into the whereabouts of a box of missing interdepartmental audit records on police overtime Butler gathered while conducting a review on overtime spending in 2017.
“That internal investigation was not designed to find the missing documents or determine why they were missing; instead, it was designed to unfairly implicate Capt. Butler,” the lawsuit reads.
Police officials say the records were discovered unaccounted for within CPD sometime between March and mid-June 2018 just as the city’s annual state audit began. The state audit scrutinized police overtime at the request of Hamilton County Prosecutor Joe Deters due to Butler’s allegations of “illegal abuse."
The internal investigation was unable to determine the whereabouts of the box, and Butler fought his reprimand by appealing it to a police peer review panel.
The panel, made up of three veteran captains who all ran the internal investigation section at some point during their lengthy careers, unanimously overturned the discipline, police records show.
“The Peer Review Panel’s unanimous award can only be described as a scathing indictment of the way the underlying investigation was conducted,” Butler’s lawyer, Brian Gillan, wrote in a letter to City Solicitor Paula Boggs Muething.
However, the panel’s move only relates to the discipline.
It does not throw out the internal investigation report, its findings or the administrative charge - one that could land potentially Butler on the “Brady List.”
The lists, kept by prosecutor’s offices, can include information related to officers’ truthfulness and misconduct, which defense and other attorneys can use to impeach their credibility in court.
“Unless the report itself is pulled from Captain Butler’s personnel file and (police electronic) records, reversing the reprimand is really of no consequence because the damning and tainted report is out there for the city and police department to use whenever they want to release it to whoever they want to release it," Gillan told FOX19 NOW.
We reached out to spokesmen for both the city and Cincinnati Police Department, Chief Isaac, and Boggs Muething.
“We respectfully decline to comment,” Lt. Steve Saunders responded in a text.
The private attorney for Chief Isaac declined comment, writing in an email: “Thank you for reaching out and providing us with the opportunity to respond. We would direct you to the City Solicitor’s Office for any response to the lawsuit against Chief Isaac and have no further comment at this time.”
In a story FOX19 NOW broke on Monday, Captains Craig Gregoire, Doug Wiesman and Paul Broxterman determined “the investigation posed several conflicts of interest':
- “A direct familial relationship between the evidence of the investigating and investigative body.” (Butler’s direct supervisor, Assistant Chief Teresa Theetge, who was involved in the city’s annual state audit and oversaw the section in CPD where the box was last seen, is the sister of the Russ Neville, the captain assigned to oversee the internal investigation. He has since been transferred to run the internal investigation section).
- “Due to an active captain’s promotion list, the lead investigator was potentially in a position to benefit from a sustained finding of Captain Butler.” (Lt. Doug Snider is next on the promotional eligibility list for captain).
- “While being implicated in the investigation, the Police Chief attended discussions related to this investigation prior to the conclusion of the investigation.”
“The panel believes that because of these conflicts identified, one could consider the investigation not fair or objective, which further leads to the veracity of the sustained finding," the panel wrote in their July 25 decision.
“This is really a mess and it’s unfortunate it happened,” said Mike Allen, FOX19 NOW legal analyst.
The reprimand was removed from Butler’s personnel file and police electronic records, according to a July 29 memo from Assistant Chief Theetge to the commander of the to the city’s human resources department director and the commander of internal section.
A city spokesman declined comment last week when we sought comment about the internal investigation and peer review panel decision.
A police spokesman did not respond, and another police spokesman on July 1 immediately referred us to the city manager’s office and spokesman when we inquired about the situation and requested several public records.
Butler’s lawyer said he filed the suit Wednesday morning after the city and police department didn’t respond to his requests to also throw out the internal investigation report and administrative charge.
It is not the first time Butler has sued the city or the chief.
His latest lawsuit is the second one he has filed against his employer alleging retaliation.
A federal lawsuit he filed in September 2017 that has now been amended three times lists of a litany of issues Butler says he has uncovered regarding allegations against the now-former city manager, now-former assistant city manager, the mayor and police chief.
The last time his federal lawsuit was amended was in November, related to the box, to include a claim of “spoliation of evidence.”
“This is not about Captain Butler and Chief Isaac. This is about Captain Butler trying to do right by the public he serves,” Gillan said.
“We want the judge to understand that this incident didn’t occur in a vacuum. It’s the latest chapter in an ongoing saga of retaliation against Captain Butler every time he speaks truth to power, whether that power is Chief Isaac or Mayor Cranley or the (former) city manager.”
His amended federal complaint 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.”
Butler claims in his original lawsuit he was retaliated against after he raised questions about how the city spent its 911 fees and grant dollars while he was overseeing the Emergency Communications Center from Jan. 3, 2016 to Jan. 1, 2017, when he says he was moved and stripped of his managerial duties with virtually no notice.
The suit also claims the former city manager, Harry Black ran city purchases through a company run by a friend that required a 15 percent mark-up.
Butler’s suit accuses the mayor of leading “a concerted public campaign to demonize Captain Butler as a racist, a bad cop, and someone whose lawsuit was designed to undermine the contractual relationship between the City of Cincinnati and minority-owned business enterprises."
City leaders have called the suit “frivolous" and said they were confident it would be dismissed.
It is still pending with a federal judge expected to rule at any point whether it can proceed.
After Butler was pulled out of the city’s 911 center, he was assigned to CPD’s Inspections Section, where he oversaw an interdepartmental audit of police overtime in 2017 as part of his regular duties.
“The results of the audit disclosed that the Police Department had incurred significant overtime expenses, often as a result of inappropriate and illegal conduct, especially in the Police Department’s District 5, which was commanded by Capt. Bridget Bardua,” Butler’s lawsuit filed Wednesday states.
“The audit disclosed that the Police Department spent millions of dollars in overtime with at least 15 officers bringing in tens of thousands of dollars in overtime each month. An inordinate amount of overtime centered in District 5, commanded by Capt. Bardua. Capt. Bardua herself earned $82,723 in overtime during the audit period.”
The overtime abuse was so systematic and pervasive that officers in District 5 had developed their own shorthand phrases for scams to obtained unearned overtime illegally, the suit states.
Butler brought the concerns regarding overtime abuse directly to Bardua and and several times to the chief on several occasions, most recently on Feb. 10, 2018, according to the suit. She allegedly told him “'what happens on (our street) stays on (our street.'”
The chief “did nothing," the suit states.
Bardua and the chief also did nothing when Butler raised similar concerns about her then-administrative sergeant driving city-marked and unmarked cars at or near his residence during duty hours or when he was claiming overtime, according to the suit.
“In Capt. Butler’s reasonable belief, the systematic abuse of overtime in District 5 headed by Capt. Bardua constituted felony theft,” the suit states. He was compelled by law “to report that abuse to law enforcement authorities” and “did so directly” to the chief "on numerous occasions.
Though previous cases of employees intentionally abusing the overtime system led to disciplinary action had been against them, the suit states, the chief, “repeatedly refused to initiate any disciplinary investigative action against Capt. Bardua, or permit any other law enforcement officer to initiate disciplinary investigative action (against) Capt. Bardua or those under her command. Rather....Chief Isaac went out of his way to protect Capt. Bardua from the consequences of her abuse of the overtime system and her allowing officers in District 5 to abuse the overtime system."
The audit became controversial after someone leaked a draft to the media in March 2018.
That set off a tumultuous chain of events that led to the ouster of the second-in-command at the police department, Assistant Chief David Bailey, and, ultimately, the city manager after he became embroiled in a public fight with the mayor after the mayor asked him to resign and he initially refused before quitting several weeks later.
Butler and Bailey also were named in a sexual discrimination complaint, along with a current assistant police chief who was her supervisor at the time, Assistant Police Chief Paul Neudigate.
Bardua accuses them of singling her out in the 2017 interdepartmental police overtime audit because she’s a woman and “also because I support an African American Chief of Cincinnati Police," a copy of her complaint states.
The day after her complaint was publicly revealed, the audit was leaked to the media.
Later in March 2018, Butler was moved to the Cincinnati Police Academy.
The following month, he amended his federal lawsuit again, this time related to the overtime concerns the audit raised.
Butler also alleged “illegal abuse” by officers scamming the system for more pay while the police chief turned a blind eye, according to a copy of his complaint.
The mayor alerted Deters, who then asked the State Auditor’s Office to take a look at how tax dollars were spent on police overtime.
Butler’s box of audit records went missing within CPD during that audit, and he asked City Manager Patrick Duhaney for an outside administrative and/or criminal investigation.
Duhaney did not respond, according to Butler’s lawyer.
The last believed location of the box was in Butler’s possession in the Inspections Section captains office, the internal investigation concluded.
In the meantime, the chief "has effectively marginalized Capt. Butler in retaliation for his complaints about ....Chief Isaac’s inappropriate relationship with Capt. Bardua and failure to act on her abuse of the overtime system; Capt. Butler’s role in supervising the audit; ....Chief Isaac’s mistaken belief that Capt. Butler was involved in the public disclosure of the overtime audit. Effective March 18, 2018, ....Chief Isaac transferred Capt. Butler to the Cincinnati Police Academy, but stripped him of any substantive responsibility.
In November, Butler amended his federal lawsuit to include a claim of “spoliation of evidence” related to the missing box, essentially accusing the city of destroying the records he gathered as part of CPD’s interdepartmental audit, ones he claims were essential to the state audit.
His amended complaint 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 city was under subpoena to retain all records related to the internal police audit while the State Auditor’s Office reviewed overtime spending, emails show.
So when an investigator with the auditor’s office met with him in October and specifically asked the police department ahead of time for Butler to attend with his records backing up his audit calculations, those records were MIA, Butler alleges.
In December, CPD launched an internal investigation into the whereabouts of his box. Shortly after, he filed a complaint with the chief alleging “several conflicts of interest”in it and again requested an outside investigation.
That did not occur, and the internal investigation proceeded.
Butler alleged during his interview with internal investigators with investigators the police chief came to the Inspections Section captain’s office on March 8 or 9, 2018, and asked Butler for the location of items from CPD’s 2017 interdepartmental audit on overtime, police records show.
Butler stated he advised the chief the items were in the Inspections Section office and Isaac left his office and went to the Inspection Section main office.
“Captain Butler further stated a short time later an unknown member of the Inspections Section told him’ The chief took everything.'"
Meanwhile, the state audit of the city of Cincinnati did not produce any criminal findings, Deters announced, but state auditors did conclude there was a “systematic” overtime problem in the police and fire departments and in public works.
And, overtime in the police department fell a stunning 47 percent last year once the audit began, indicating something was off, State Auditor Keith Faber has told FOX19 NOW.
State auditors recommended changes and improvements in how overtime wages and compensatory time is handled, changes the police department already had incorporated by the time the audit was released.
A few months later, on May 30, Cincinnati police concluded at the end of their internal investigation they were unable to determine the current location of the box of missing audit records.
They also determined Butler’s remarks about the chief were “unfounded,” the internal report states.
“The statements made by Captain Butler alleging on March 8 or 9, 2018, Chief Isaac removed items related to the audit from the Inspections Section office are inaccurate, intentional and misleading," the report reads/
However, Butler’s lawyer notes that Butler told internal investigators someone told Butler the chief took the binder of audit records and everything, meaning all the documentation in the binder, not the box of supporting documents.
Butler also sent Bailey an email on March, 7, 2018 documenting that Butler gave the chief the binder with the audit that had been in Bailey’s office, his lawyer said.