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West Chester officials, police chief ask court to dismiss former captains’ lawsuit

Former West Chester Police Captain Jamie Hensley (right), West Chester Police Chief Joel Herzog...
Former West Chester Police Captain Jamie Hensley (right), West Chester Police Chief Joel Herzog (center) and former West Chester Police Captain Joe Gutman (left).(Provided by West Chester Township)
Published: Aug. 13, 2021 at 10:20 AM EDT|Updated: Aug. 13, 2021 at 11:24 AM EDT
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BUTLER COUNTY., Ohio (WXIX) - West Chester Township, its police department, police chief, township administrator, trustees and a private attorney attorney are all asking the court to dismiss a federal lawsuit filed by two former police captains.

The lawsuit is unfounded, the parties have governmental immunity, there is no proof of retaliation and they did not act with “malice, in bad faith, wantonly or recklessly,” township officials contend in the latest legal filings in the case.

The two former veteran captains, Jamie Hensley and Joe Gutman, sued in June and are seeking lost pay, benefits and damages.

The former captains claim in their lawsuit they were retaliated against and defamed after they witnessed inappropriate and discriminatory conduct by Police Chief Joel Herzog and filed complaints with the township.

They allege they were ultimately forced to resign last year.

A township spokeswoman declined comment for this story because it involves pending litigation.

Elizabeth Tuck, an attorney for Hensley and Gutman, said: “Frequently the people responsible for the harm claimed in a lawsuit will try to evade accountability early on, claiming minor technicalities. We are confident that the defendants and their actions will be judged on the merits.”

Hensley began working for West Chester police in 1999, and Gutman joined the agency in 1995.

Both captains received many commendations during their tenures, including rescuing a citizen from a burning building and helping to resolve an armed child hostage incident, according to their lawsuit. They had impeccable job reviews until they raised their concerns.

The former captains’ complaints about Herzog accused him of retaliation, failure to address sexual harassment, sexism, racism and mishandling of public records, township records show.

They also raised concerns about the behavior and work attire of the chief’s administrative assistant.

Investigator reviews complaints against West Chester police chief by captains, 1 quits

Chief Herzog has denied the captains’ allegations, telling FOX19 NOW last year he believed his comments were taken out of context and he had faith the community knew him better than that.

He also said he was working to be a better leader.

Douglas Duckett, a private attorney who conducted an outside investigation for the township by reviewing the captains complaints and interviewed them and the chief, concluded “there is no basis” for Herzog to face disciplinary action over the allegations.

He did find Herzog made “careless” and inappropriate comments about race, religion and sexual orientation.

Investigation is over into complaints about West Chester’s police chief: Read it here

Duckett is named in the former captains’ lawsuit in his individual capacity.

In his lawsuit response, Duckett contends pulling him into the litigation “seeks to set a dangerous precedent - that third party employees can sue an attorney performing an investigation for the employer simply because they do not like the attorney’s methods and his ultimate conclusions,” court documents show.

The former captains’ suit says the township released Duckett’s investigation report into the captains complaints to the media while other members of the police department were still coming forward to corroborate the captains’ allegations.

Those four additional written complaints that were filed by the other members of the department were not investigated by the township “until after they released the incomplete and defamatory report to the press,” the lawsuit reads.

The additional complaints, filed by a lieutenant and officers, accused Herzog of alleged misconduct ranging from racism and sexism to telling officers not to arrest other law enforcement officials suspected of operating a motor vehicle while under the influence of drugs and/or alcohol, township records show.

Township administration and its HR department investigated the other four complaints about the chief.

Township officials released a police internal investigation report on Hensley shortly after Duckett issued his findings.

The report said Hensley violated policies and procedures by “displaying disrespect and disdain towards the Police Chief and his position” and “making false or misleading” statements in January 2020.

Hensley’s lawsuit says the township’s law director told his attorney he would be fired for dishonesty and lose his pension so he quit June 23, 2020, to preserve his pension.

Becker announced during a public township meeting last summer investigations are over into all complaints from officers about the chief and there was no corruption, retaliation, or “underlying issue of racism or sexism affecting our organization.”

She acknowledged Herzog’s shortcomings and reiterated support for him: “We move forward supporting Chief Joel Herzog in his resolve to heal the department,” she said, reading from a prepared statement.

Herzog and Gutman, meanwhile, were given performance improvement plans to address “two years of conflict and dysfunction within the command staff” at the police department.

Gutman says in the lawsuit his performance plan required him to bring concerns to the chief even if those involved the chief.

In Fall 2020, Gutman and Hensley filed separate complaints with the U.S. Equal Employment Opportunity Commission. Hensley said he was forced to quit the police department and Gutman said he was put on a discipline plan.

Gutman resigned in December, effective in January.

The township hired two new captains earlier this week.

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