Judge: Cincinnati police captain’s federal lawsuit can proceed against city, police chief

Judge: Cincinnati police captain’s federal lawsuit can proceed against city, police chief
Cincinnati Police Captain Jeff Butler (Photo: Facebook)

CINCINNATI, Ohio (FOX19) - A federal judge has declined to dismiss a lawsuit filed by a veteran Cincinnati police captain alleging multiple acts of illegal activity and retaliation against the city, former and current city officials and Police Chief Eliot Isaac.

U.S. District Court Judge Michael Barrett’s decision clears the way for Captain Jeff Butler’s lawsuit, which has been amended several times since it was first filed two years ago, to proceed with depositions and discovery.

Butler claims in his original lawsuit, filed in September 2017, 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.

That’s when he says he was moved and stripped of his managerial duties with virtually no notice.

The suit also claims former city manager Harry Black ran city purchases through a company run by a friend that required a 15 percent mark-up.

Then, Butler’s suit says, the mayor led “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 Manager Harry Black and Mayor John Cranley at a press conference in 2018. (FOX19 NOW)
City Manager Harry Black and Mayor John Cranley at a press conference in 2018. (FOX19 NOW)

City leaders have called the suit “frivolous" and have said they were confident it would be dismissed.

We sought comment Thursday from spokesmen for the city and Cincinnati police, Chief Isaac, the City Solicitor’s Office, the mayor and his spokeswoman but did not hear back.

Butler’s attorney, Brian Gillan, declined comment Thursday morning.

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 audit, however, became controversial when someone leaked a draft to the media in March 2018.

That set off a tumultuous chain of events leading the ouster of Butler’s direct supervisor at the time who also was the second-in-command at the police department, Assistant Chief David Bailey, and, ultimately, the city manager.

Black became embroiled in a public fight with the mayor after the mayor asked him to resign days after Black pushed Bailey out. He initially refused before quitting several weeks later literally moments before he was about to be fired at a special council meeting.

MORE | City Manager: Feds should investigate ‘rogue element’ in Cincinnati Police Department | City Manager forces out 2nd in command at CPD: ‘This is so sad,’ mayor says | CPD’s 2nd in command: I was ousted after audit found ‘exorbitant amounts’ of OT

Key records that back up this controversial audit on Cincinnati police overtime vanished from the police department in 2018.
Key records that back up this controversial audit on Cincinnati police overtime vanished from the police department in 2018. (Source: FOX19 NOW/Jennifer Edwards Baker)

The latest amendment to Butler’s federal lawsuit includes a claim of “spoliation of evidence."

The claim is related to a box of missing audit records Butler gathered as he and his then-staff in the Cincinnati Police Department’s Inspections Section conducted the overtime audit.

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.

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 in March 2018, according to a memo Butler wrote last fall to the city manager.

One of the assistant city solicitors also had a portion of the records, Butler wrote.

Yet 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 remained MIA, according to his memo.

Butler twice requested an outside criminal and/or administrative investigation into the box’s whereabouts when it vanished within the department last year, but the police department did an internal investigation.

It was ultimately found to be “not fair or objective" by a peer review panel when Butler appealed its outcome earlier this summer.

He received a written reprimand for “Failure of Good Behavior" in July, but that was thrown out by the panel of his peers who determined “the investigation posed several conflicts of interest," police records show.

Butler then sued in Hamilton County Common Pleas Court to try to have the entire internal investigation and the administrative charge levied against him dismissed.

He also requested a restraining order to prevent city and police officials from placing him on the Brady List.

The list, kept by the prosecutor’s offices, can include information related to officers’ truthfulness and misconduct. Defense and other attorneys can use this to impeach their credibility in court.

This week, Judge Robert Ruehlman dismissed that lawsuit and ordered Butler to pay costs related to the litigation, court records show.

Ruehlman agreed with city attorneys that Butler is required under the union contact to handle grievances through a process outlined in that document and the court lacks jurisdiction.

The union that represents Cincinnati police already has filed a grievance that will ultimately land the issue before an arbitrator, FOX19 NOW has learned.

Butler’s reprimand was related to remarks Butler made about the chief, implicating him, during the internal investigation, according to police records.

The peer review panel, however, questioned the integrity of the probe.

The panel - comprised of CPD veterans who all were internal section commanders at one point: Paul Broxterman, Craig Gregoire and Doug Wiesman - identified the following conflicts of interest in it, police records show:

  • “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 entire internal investigation section).
  • “Due to an active captain’s promotion list, the lead (internal) 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," they wrote in their July 25 decision,"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 reprimand was removed from Butler’s personnel file and police electronic records, according to a July 29 memo from Theetge to the commander of the city’s human resources department director and the commander of internal section.

But the peer review panel’s decision only impacted the discipline; it did not negate the investigation or its findings, which still stood.

Police officials say the box of audit 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."

Butler 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.

Butler’s lawsuit said Black and the chief retaliated against him in response to an audit Butler led of the police department’s overtime and the chief’s “improper relationship” with a subordinate employee, Captain Bridget Bardua.

"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 system, the suit alleges. "Chief Isaac did so because of his close, personal relationship with Capt. Bardua. It is well-known within the police department that Chief Isaac and Capt. Bardua are close friends.

"Numerous officers have seen the out at restaurants and movie theaters. Because (Butler) lives on the same street as Capt. Bardua, on numerous occasions when he was home appropriately and off duty, caring for his ill relative, he observed Chief Isaac's gray Taurus and black Taurus in Capt. Bardua's garage during duty hours," the suit states.

Officers Dennis Barnette and Donte Hill both used the N-word in separate incidents last year. Both instances were captured on body-worn cameras. Cincinnati Police Chief Eliot Isaac approved seven-day suspensions for both officers on Friday. (Photo: Liz Dufour/The Enquirer)
Officers Dennis Barnette and Donte Hill both used the N-word in separate incidents last year. Both instances were captured on body-worn cameras. Cincinnati Police Chief Eliot Isaac approved seven-day suspensions for both officers on Friday. (Photo: Liz Dufour/The Enquirer)

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.

The state audit of the city of Cincinnati did not produce any criminal findings, Deters said, but state auditors did conclude there was a “systematic” overtime problem in the police and fire departments and in public works.

Meanwhile, overtime in the police department fell a stunning 47 percent last year once the audit began, indicating something was off, State Auditor Keith Faber told FOX19 NOW earlier this year.

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.

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