WEST CHESTER TOWNSHIP, Ohio (FOX19) - West Chester’s police chief and a captain have been presented with performance improvement plans as the result of an investigation into complaints regarding workplace culture at the police department, according to a news release from the township Monday.
Earlier this year, West Chester trustees directed their law firm to hire an outside attorney to review several complaints filed with the township about Chief Joel Herzog including racism, sexism and retaliation from former Captain Jamie Hensley and Captain Joe Gutman.
A news release from the township says the most serious allegations against the chief were determined to be unfounded, but, “The past communication and behaviors of Chief Herzog and Captain (Joseph) Gutman, however, are unacceptable moving forward. All employees are to be treated with the same standards and respect, regardless of gender, race or any other differences.”
The performance improvement plans were presented to Herzog and Gutman Monday, although they have not been signed by either, according to township spokesperson Barb Wilson.
The performance improvement plan for Herzog addresses disparaging comments or jokes, communication with the department’s captains, and maintaining professional boundaries.
As for enforcement of the plan, the document says any failure to meet the expectations could result in immediate discharge.
Trustee Mark Welch told FOX19 NOW last week Chief Herzog has personally apologized to all three township trustees in a closed-door executive session and readily agreed to go on a performance improvement plan: “He’s all for it.”
Gutman’s plan includes directives to maintain cooperative and professional work relationships, instructions regarding assignments and communication, and to communicate improper conduct immediately. It also outlines minimum penalties for failure to comply with the plan.
“At this time, the Board of Trustees and Administrator Larry D. Burks choose to invest in Chief Herzog and Captain Gutman, who have already demonstrated great commitment to our community and excellent law enforcement training, and demand change from them.”
When asked for reaction to the performance improvement plan, Gutman’s attorney said her client, ”is a current employee of the department and therefore cannot comment at this time.”
Four additional complaints were filed about Herzog by three veteran officers and a lieutenant June 28-July 5, township records show.
That was just before the township released a report July 7 with the outcome of an investigation into the captains’ complaints that was conducted by the outside attorney, Doug Duckett.
Those additional complaints are currently being investigated by township administration and human resources.
Last month, the local chapter of the NAACP and CAIR Ohio called for federal authorities to investigate the complaints against the chief.
Captain Hensley abruptly quit June 23, writing in his resignation letter: “I believe this is the only option left that protects my family, my health, and my career without compromising my values. It is unfortunate to have been treated this way for taking a principled stance and others may fear coming forward in the future as a result.”
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We checked with an employment lawyer, Tod Thompson of Cincinnati, for his take on West Chester’s performance improvement plans for the chief and Gutman.
Thompson concern in particular to how the township is treating Gutman. Thompson said in his opinion it appears they are making it “more difficult, more threatening” for him to complain in the future.
“The performance improvement plan issued to the Captain appears to constitute preemptive retaliation by imposing heightened scrutiny and peril to the process he must avail himself of to complain if the chief’s behavior does not improve. I’ve seen preemptive retaliation before. Employers engage in preemptive retaliation when they create obstacles or consequences to the complaint process to dissuade employees from complaining about improper or unlawful conduct.
“It looks like West Chester has tailored a complaint process for Gutman that he must adhere to strictly under threat of discipline or termination. That process requires him to complain directly to the Chief if the Chief engages in further improper or unlawful conduct. Why make it more difficult, more threatening, for Captain Gutman in particular to complain? What public interest could that possibly serve?
“Preemptive retaliation is as unlawful as retaliation,” he continued.
“Retaliation occurs where an employee suffers an adverse employment action because she engaged in protected activity, like complaint about discriminatory conduct, or behavior reasonably perceived as discriminatory. Preemptive retaliation occurs where an employer takes action to dissuade an employee from engaging in protected activity in the first place. Both are unlawful.
“And more generally, what possible public interest is served by dissuading a police Captain from engaging in protected activity? How does that improve performance or correct “dysfunction?” Or doesn’t that rather just protect a Chief who the township has directed to ‘change’ behaviors it ostensibly reasonably perceived to be discriminatory?”