Ohio AG: Situation at West Chester Police Department ‘appears to be toxic stew of personality conflicts'

Investigation report: West Chester PD chief shouldn't face disciplinary action

WEST CHESTER TOWNSHIP, Ohio (FOX19) - The situation at the West Chester Police Department involving multiple officers’ complaints about Police Chief Joel Herzog “appears to be a toxic stew of personality conflicts,” Ohio’s top cop tells FOX19 NOW.

However, Attorney General Dave Yost’s Office “does not have independent investigative authority to review this matter,” said the agency’s spokesman, Steve Irwin.

FOX19 recently obtained complaints from two veteran captains who rose up through the ranks with the chief, Joe Gutman and Jamie Hensley, that their attorney filed about Herzog with the township earlier this year.

They alleged, among many things, retaliation, racism, sexism, mishandling of public records and failure to address sexual harassment. One of those captains, Hensley, quit June 23.

On Tuesday night, a township spokeswoman released a 54-page report by a private attorney hired by the township’s law firm at the direction of township trustees.

The attorney, Doug Duckett, concluded “there is no basis” for Herzog or the assistant chief to face any disciplinary action over the allegations, but he did find Herzog has made “careless” and inappropriate comments about race, religion and sexual orientation.

RELATED: Investigation is over into complaints about West Chester’s police chief: Read it here | Some West Chester police call for ‘no confidence’ vote in police chief; third complaint filed | Investigator reviews complaints against West Chester police chief by captains, 1 quits | West Chester police union leaders reject special meeting request for no-confidence vote in chief

We obtained a copy of an email a former state and federal prosecutor sent to Attorney General Dave Yost and Gov. Mike DeWine last week, imploring them to do something.

“Gentlemen,

I write to request your intervention in a controversy that is currently taking place in the West Chester Police Department. Two captains, one of whom I know, have made serious misconduct allegations against the chief of police, including racial insensitivity. Unfortunately the township trustees have hired the law firm they have on retainer to investigate the allegations, which I see as a clear conflict of interest. One of the captains has already been forced out of the department and it appears the same fate may soon befall the other. Both of these men are experienced officers who were deemed competent enough to serve as the third-ranking officers in the department. I personally know Captain Gutman and know his integrity and dedication to the department to be above reproach.

I would ask that a separate, truly independent and non-political investigation be undertaken by either of your offices to prevent a miscarriage of justice from occurring in West Chester.

As a former state prosecutor ( Lucas County) and retired federal prosecutor ( Northern District of Ohio) this appears to me to be the rare case where intervention by your offices is warranted.

Thank you for your consideration.

David O. Bauer

Bowling Green

FOX19 NOW has learned that Bauer is a former step-father of Captain Gutman’s wife.

We also reached out to the governor and his spokesman for a response on the email but have not heard back so far.

On June 17, Yost and DeWine held a joint news conference to unveil sweeping police reforms in light of George Floyd’s death.

Most of their proposals focus on use of force, though they did outline plans for a law enforcement oversight and accountability board made up of law enforcement and the public they serve.

The governor and attorney general also called on the Ohio General Assembly to move swiftly to permit this law enforcement oversight under Ohio law.

”Under current law, there is no mechanism in Ohio to revoke a peace officer’s certificate for conduct that is egregious, but not criminal,” DeWine said back on June 17. “Officers can be fired from one agency for racial profiling, lack of professionalism, or for simply not doing their jobs, yet they can carry on with this behavior when they’re hired somewhere else. It is time to treat a peace officer certificate more like a professional license.”

Earlier Wednesday, FOX19 NOW obtained and reported another complaint against Herzog filed by a police officer alleging inappropriate racial comments.

This was sent by Officer Mike Lopez to the township’s human resources manager, Tanya Charles, last week, FOX19 NOW has confirmed:

“Hello, I am following-up in regards to a specific incident that occurred a few months ago with Chief Herzog and myself, Michael Lopez. Just prior to awarding me with an ‘atta boy’ letter for a job well done on a case, in a room of approximately 8-10 other people he announces ‘Is this for the white Mike or the brown Mike?' ‘Oh, this is for the Brown Mike’ and gives me the letter.

“Everyone in the room looked at me, probably in shock of what was just said by our leader. I was humiliated, but I knew I had to let it go for fear of retaliation. Since we have been under his command, everyone has learned how Chief Herzog operates and if anyone were to come against him for any reason our job would be in jeopardy. He is a poor example of a leader by showing favoritism to certain officers, racial insensitivity as well as sexual jokes and comments.”

Officer Lopez’s complaint goes on to state that on Sunday, June 28, the chief “came into the Police Department and, after addressing our squad during our briefing, he spoke to me and apologized for this specific comment that was made. He said there was a full investigation that is coming to an end soon and if this is true, I’m curious as to why I wasn’t questioned during this investigation especially since he said this comment was addressed during the investigation and that he admitted to it.

“As the victim, I feel like I should have been spoken to about this. I am truly thankful for Captain Hensley and Captain Gutman having the courage to bring this to light, as it has made it easier for me to come forward, although, Captain Hensley will be missed by all. Thank you for your time, Officer Michael Lopez.”

FOX19 NOW has learned other complaints have been filed by members of the police force since the investigation began.

We obtained a copy of one last week, filed by Officer Charles Hawkins, that mentioned the situation with Officer Lopez, and we continue to ask the township to release copies of all complaints that may have been filed last week and this week.

So far, the only complaints the township has released to us are the ones filed by the two captains - and that was after we followed up with them for nearly two months starting April 27. The township released several other documents we also requested, but not the captains’ complaints until June 24 - after we finally had to threaten legal action if they were not turned over.

Duckett specifically referred to Officer Lopez in his report, writing:

“Another example is how Chief Herzog once jokingly referred to two officers named Michael as “white Michael” and “brown Michael”; Officer Michael Lopez is Latino. While the Chief recently apologized to Officer Lopez, who assured him that it was not a problem, there is a more fundamental lesson here for Chief Herzog: both “Michaels” have a last name, and that is the only way they should be distinguished from one another, not through a joking reference to their skin tones.”

Duckett concluded, however, “there is no basis” for him or the assistant chief to face any disciplinary action, according to township records released Tuesday.

FOX19 NOW sought comment from the police chief and township on Wednesday morning in light of Officer Lopez’s complaint against the chief.

We received this email in response from a township spokeswoman, Barb Wilson:

“There will be no further comment from staff regarding the investigation at this time. Township Administrator Larry Burks will continue to work with the West Chester Board of Trustees in weighing the outcomes and conclusions of this report, along with any new concerns brought forward, to determine next steps.”

We also reached out to all three trustees for comment.

We only heard back from one of them, Lee Wong, who directed us to contact the township’s spokeswoman.

An attorney for the captains, Elizabeth Tuck, tells FOX19 NOW: “It is saddening that Officer Lopez has been placed in this position because the township has been more focused on destroying my clients’ reputations instead of dealing with the real issue. His concerns clearly corroborate those my clients expressed. We can only hope that the township does a better job protecting Officer Lopez than it did the captains.”

The township’s outside investigator has recommended that the chief “needs to show significantly more care to be appropriate and professional in his conversations with subordinates and in the presence of members of the public.

“He must particularly avoid any comment, including joking ones, based on a person’s race, sex, religion, national origin or ancestry, age, disability, sexual orientation, or gender identity - that is the law and West Chester Township policy,” Duckett’s report states.

“This is true at all times, on-duty and off-duty, for Joel Herzog always wears the role of West Chester Police Chief, and his words and actions therefore reflect not only on himself but the Police Department and the Township as a whole. A performance improvement plan for Chief Herzog should clarify and specify this requirement, and that failure to meet those expectations will end his service as Police Chief.”

More broadly, Duckett’s report states, “the remaining command staff members to function, for this dysfunctional and toxic workplace dynamic to heal, each of them must communicate far more effectively with each other on a constant and open basis.

“That means that Col. Herzog and Lt. Col. Rebholz cannot avoid Capt. Gutman to avoid the negativity. I also recommend that the performance improvement plans for Chief Herzog spell out that expectation, including holding regular command staff meetings as well as structured communication sessions involving Assistant Township Administrator Lisa Brown.

“They should also be required to submit regular, joint reports with (Captain) Gutman to Township Administrator Larry Burks on their progress on rebuilding the work relationship.”

Duckett recommends the police department’s psychologist resume team-building efforts in the wake of this report, the resignation of Hensley, and “performance improvement plans that will be issued.”

“I do not know if the Police Department command team can get past the deep damage and distrust, but there is no responsible choice but to work hard at doing so. There may be other training programs aimed at improving communication and team building that the Township can consider requiring the members of the command staff to attend,” the report states.

“But unless this dysfunction and ‘guerrilla war’ among the Police Department’s command staff is stopped, and all involved commit to the hard work of making the individual changes necessary for that to happen, the situation is completely untenable.

“All involved need to understand that each person’s continued employment depends on making the changes necessary to rebuild that an effective work team.”

The attorney who represents the captains blasted the report and it’s credibility, calling it “malicious, offensive, and defamatory.”

“It blatantly misquotes my client’s interviews, ignores most of what they complained about, and is irresponsible with the truth and facts,” she told FOX19 NOW.

She said in a statement the captains “made a gut-wrenching decision to jeopardize their careers and expose racism, sexism, retaliation, and other wrongdoing at the highest level of the West Chester, Ohio Police Department. They did so after multiple internal attempts to have the Township address these very serious problems.

“Rather than address or report the misconduct to the Ohio Attorney General or another independent body, the Township engaged a hired gun at taxpayer expense to defend itself and Chief of Police Joel Herzog against the Captains’ very real claims of unlawful conduct.

“The investigation report produced to the media by the Township earlier today - without advance notice to the Captains - is malicious, offensive, and defamatory. Moreover, it was rushed to be released while other members of the department have been and are still coming forward to corroborate the Captains’ concerns, describe a ‘culture of retaliation’ in the department, and provide more examples of wrongdoing.”

“Instead of actually investigating my clients’ concerns about Chief Herzog’s racist, sexist, and other misconduct, the Township turned the investigation on the Captains to discredit them publicly and destroy their impeccable reputations. It is outrageous, as is the way the report and the Township downplay the Chief’s conduct” including:

  • “The Chief admits he calls Middle Eastern and Asian citizens “dots” and “terrorists.” The Chief admits he calls black people with whom the department interacts ‘Number 2s.' But according to the report that is just ‘lingo’ and excusable because of context. The Captains did not think so, and they are right.
  • “Referring to a Latino officer as ‘Brown Mike’ is not just a “joking reference,” because referring to an officer by his race instead of his name is not funny.”

The attorney said the captains’ interviews with Duckett were recorded, “although it is regrettable that a day and a half of Captain Hensley’s interview was not recorded, a fact that I discovered purely by accident. Recordings that were made were made on Township property – the public has a right to listen to those and judge for themselves. People should also ask why only the Captains’ interviews were recorded, and why Mr. Duckett never followed up with witnesses on allegations the Captains made in the interviews.

“Police reform – real reform – will not be possible until good police officers can come forward when they see wrongdoing in their ranks without losing their careers, especially where that wrongdoing comes from the top,” her statement also reads.

“It is unfortunate that what should have been a legitimate investigation into a matter of important public interest has been weaponized against the Captains, apparently to support Chief Herzog at any cost.”

FOX19 NOW has asked the township for any and all audio recordings taken as part of the investigation, drafts of the report and Duckett’s notes.

We were assured by Trustee Mark Welch in a June 27 phone interview we would receive the notes and recordings, but have yet to receive those despite repeated requests including as recently as Wednesday morning.

Read the full report here, followed by the attorney’s full statement:

The township also issued a lengthy statement with the report when a township spokeswoman released it at 5:11 p.m. Tuesday.

Their statement reads in part:

“West Chester Township hired a third-party in March to investigate complaints and allegations by two West Chester police captains against Police Chief Joel Herzog. The findings of the third-party investigator are his, and are based on extensive interviews with all of those involved, his experience and legal expertise.

“All complaints made by the two captains were taken seriously with the intention of unraveling the truths and finding a path to restore a positive workplace culture for all.

“The report stands on its own and offers details about how events transpired. Township Administrator Larry Burks will continue to work with the West Chester Board of Trustees in weighing the outcomes and conclusions of this report, along with any new concerns brought forward, to determine next steps.

“The ultimate goal is a positive workplace environment for all of West Chester’s professionals, in order to provide the most exceptional service to the community.

“The report is lengthy and provides detailed insight and facts into the interactions and actions of the police command staff, drawing conclusions based on interviews and research. It goes into detail regarding each complaint made and deserves a full reading.

“It is up to the reader to draw his or her own conclusions from the report, but residents should know that the Township is not blind to the circumstances outlined and will take action in the best interest of the community.”

Read the township’s full statement here:

Copyright 2020 WXIX. All rights reserved.