Former captains lawsuit against West Chester chief, trustees can proceed, judge rules

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: Oct. 4, 2022 at 2:23 PM EDT|Updated: Oct. 5, 2022 at 7:29 AM EDT
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WEST CHESTER TOWNSHIP, Ohio (WXIX) - A federal lawsuit alleging civil rights violations and retaliation filed by two former veteran West Chester Township police captains against the Butler County township, its police chief, trustees, top administrator and others can proceed, a judge ordered.

Jamie Hensley and Joe Gutman sued in June 2021 and are seeking lost pay, benefits and both compensatory and punitive damages.

They claim they were retaliated against and defamed after they participated in an internal investigation concerning Police Chief Joel Herzog’s administrative assistant’s conduct and attire and witnessed inappropriate and discriminatory conduct by the chief and filed complaints with the township in early 2020.

They allege they were ultimately forced to resign later that year, one that saw a total of six officers filing complaints about the police chief.

RELATED: 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 | Investigation is over into complaints about West Chester’s police chief: Read it here | West Chester trustees announce end to investigations into police chief complaints, reiterate support for him

The suit, which the township has adamently refused to settle, according to court records, names the police chief and the following defendants in their official and individual capacities: Township Administrator Larry Burks and all three elected township trustees: Ann Becker, Lee Wong and Mark Welch.

Douglas Duckett, a Cincinnati attorney who was hired by the township’s lawyer at the behest of the trustees to conduct an outside investigation of the captains’ complaints about Herzog, also is named in his individual capacity.

Duckett concluded that Herzog needed to take steps to be “more appropriate and professional.” His review included admissions by Herzog that he called Middle Easterners “terrorists,” Indians “dots” and referred to a Latino officer as “brown Mike,” Duckett’s report states.

However, Duckett wrote, the chief’s actions didn’t warrant formal discipline and township officials have repeatedly said the most serious or egregious allegations against the chief were determined by Duckett to be unfounded.

Duckett said he advised Herzog against using such “lingo,” but he stopped short of urging a reprimand - even while noting such language violated both township policy and anti-discrimination law.

“(Herzog) 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 wrote.

The chief, township trustees and other officials and Duckett all asked the court to dismiss the lawsuit, countering in legal filings that the lawsuit was 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.”

U.S. District Court Judge Michael Barrett clearly disagreed, according to his 37-page order, which includes the following determinations:

  • “The Board of Trustees argue that even if Plaintiffs have plausibly alleged a claim for defamation, they are entitled to statutory immunity. However, the Court finds that the Plaintiffs have included allegations in the Amended Complaint tending to show that the Board of Trustees acted ‘in at least bad faith....’”
  • “Plaintiffs allege that the Board of Trustees, along with Burks, ‘directed Defendant Duckett to prepare a report and recommendations for public consumption that they knew contained false accusations about Plaintiff, warped the investigative evidence to justify additional retaliation and would ultimately result in Plaintiffs’ termination or resignation.’ As such, statutory immunity (under Ohio law) does not apply at this stage of the proceedings.”
  • Plaintiffs argue that one of the exceptions applies here. Plaintiffs explain that Herzog and Burks acted “with malicious purpose, in bad faith, or in a wanton or reckless manner’ and therefore are not entitled to immunity..... In order to reject the argument that the immunity exception applies, the Court must find that the complaint is “devoid of allegations tending to show that the defendants acted in at least bad faith.’ Here, the amended complaint is not devoid of such allegations.”
  • “Plaintiffs have alleged that when Plaintiffs complained about Herzog’s administrative assistant’s inappropriate dress and behaviors’ Herzog started a paper trail targeting Captain Gutman with a memorandum that grossly misstated the content, tone and nature of the Captains’ concerns, drastically downplayed Ms. Freeman’s behavior, and intentionally omitted important, corroborating details. Plaintiffs claim that after Herzog completed the informal handling of the complaint about the administrative assistant, he retaliated against Plaintiffs by taking away responsibilities and informed Human Resources this was because Plaintiffs had ‘attacked’ and ‘betrayed’ him. Plaintiffs allege that after they met with Herzog and asked him to stop his sexist or racist jokes or remarks in the workplace, Herzog required them to tell his administrative assistant whenever they left the building. According to Plaintiffs, Herzog gave them lower performance evaluations because they were not ‘friendly enough’ (with his) administrative assistant. Plaintiffs also allege that Herzog placed Hensley on a performance improvement plan in January of 2020 based on ‘not meeting expectations’ since April of 2019, but Hensley had never been informed that he was not meeting performance standards. Based on these allegations, the Court finds that Plaintiffs have adequately alleged that Herzog acted in ‘at least bad faith.’ Therefore, to the extent that it seeks to dismiss Plaintiffs’ claims of retaliation and aiding and abetting retaliation under Ohio law, Herzog’s Motion to Dismiss is DENIED.”

One of the captains’ attorneys, Elizabeth Tuck, said Tuesday they are “very pleased” with the judge’s decision.

This means the former captains and their attorneys can now continue seeking additional evidence including depositions of police administration including the chief, police officers, township administration, other employees and all three township trustees.

That includes several of the veteran officers who have left West Chester police since 2020, such as most of the four officers who filed similar complaints about the chief, too, June 28-July 5, 2020 as Duckett was wrapping up his report, which was issued on July 7, 2020.

But the township reviewed the additional complaints internally and then Becker announced in a public meeting in July 2020, reading from a prepared statement, that the investigations into all complaints from officers about the chief were over and there was no corruption, retaliation or “underlying issue of racism or sexism affecting our organization.”

“Chief Herzog and the other individuals who destroyed the Captains’ careers to cover up what was going on in the department are going to have to answer for their statements and actions. This was a win for good police everywhere,” the captains’ attorney said.

“We will have to trust outside law enforcement to determine whether there may be a criminal element to this. We respect the judge’s reasoned opinion, and we are one hundred percent satisfied with the ruling.”

Tuck said both former captains are encouraged by an outpouring of support they still receive from law enforcement, colleagues and West Chester residents “since this saga began.”

“They are looking forward to getting their day in court, but the damage these bad actors did to the captains’ long and distinguished careers of integrity and service is irreversible. It’s been very hard on them and their families, both financially and emotionally.”

A township spokeswoman and Duckett both told FOX19 NOW they wouldn’t discuss ongoing litigation.

“Litigation is a process that has to run its course. To comment specifically on details as they are revealed could have impact on the overall case, so West Chester will wait for final outcomes from the court before offering further comment,” said West Chester spokeswoman Barb Wilson.

FOX19 NOW has asked the township for invoices and other records showing how much has been spent on legal fees related to this litigation as well as complaints about the chief and other litigation since January 2020. Another attorney from its law firm, Frost Brown Todd, joined the defendants’ defense team on Monday, court records show.

The township spent $50,000 alone for Duckett’s services, according to a statement Becker made during a 2020 public meeting.

Hensley abruptly quit in June 2020 and Gutman resigned by year’s end.

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 in June 2020 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.

Duckett conducted an outside investigation for the township by reviewing the captains’ complaints and interviewing them and the chief in the spring and early summer of 2020.

He concluded in a report released in early July 2020 that there was “no basis” for Herzog to face disciplinary action over the allegations.

He did find, however, that 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.

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 in the summer of 2020 that 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 last year.

Last fall, a married couple who worked for the township police department for years before retiring, Lt. Michael Quinn and Jeanni Quinn, filed separate complaints with the township about the chief.

The township ultimately determined those complaints were unfounded, too.

Lt. Quinn, who is now retired, recently filed a formal job complaint against West Chester. He claims he was discriminated and retaliated against because of a disability that required him to have surgery and miss work in the fall of 2021 and his wife’s complaint in October 2021 about the police chief.

Jeanni Quinn filed hers first in an October 2021 email to township trustees.

She claimed Herzog made an offensive remark to her earlier that year about the race of his expectant grandchild.

The township’s investigation found insufficient evidence to support the allegation that the Chief continues to engage in inappropriate conduct, a copy of it shows.

“Regarding the conversation between the chief and Jeanni Quinn, the investigation determined “there was no witness to or recording of the conversation, so it is difficult to fully substantiate the truth of this claim,” wrote Assistant Township Administrator Lisa Brown.

“However, there were no additional allegations of inappropriate verbal statements by any other witness to substantiate this allegation. Chief Herzog insists he does not remember making a statement to Jeannie Quinn about “little brown babies.’

“He qualified this by stating, “I would be shocked that I would say something like that to her (Jeanni Quinn),’” she wrote in a 2021 report.

“He also went on to say, “I have no recollection of that…but I could see me saying beautiful little brown babies.”

Quinn gave the township copies of test messages she exchanged with someone the day of the conversation with the chief.

She wrote, according to copies provided to FOX19 NOW: “Just wanted to share a dumbass comment Joel made to me today.” Emojis of a laughing face with tears are included in her text.

She also texted: “Yep, I was talking to him and he said, ‘so we’re gonna have little brown babies running around’ ...”

The assistant township administrator wrote in her report that Quinn provided “some contemporaneous evidence that Chief Herzog made the alleged statement. The text is on the relevant date and reflects the alleged statement,” the report states.

“However,” it continues, “there is no way to confirm that the text message accurately captures the content of the conversation between Chief Herzog and Ms. Quinn.”

The township’s assistant administrator ends her report with some recommendations.

“Despite all complaints being unfounded, there still seems to be some level of tension in the department. This may be hold over from the previous investigation and subsequent fallout,” she wrote, referring to the captains’ complaints in 2020 and ultimate resignations.

“This investigator suggests continuing to focus on addressing departmental concerns that appear to add to departmental unease. First, there were multiple complaints about the chain of command not being applicable to all employees. This investigator’s recommendation is to be more aware of uniform application of paramilitary expectations, specifically regarding communications between subordinates and supervisors.

“Second, employees expressed concerned that a “good ol’ boy” system exists in the department, in which preferred employees receive special treatment from Chief Herzog. There is no evidence that this is true; however, perception is often more powerful than truth. Chief Herzog must be conscious that his actions have great impact on his department and that as the leader of the Police Department he must enforces proper distance between himself and his subordinates.”

The night she sent the trustees her complaint, her husband, LT. Quinn, requested in writing a few hours later to be rehired at the department again when his current contract, which allowed him to work for the township after retiring, expired in March 2022.

Several members of the police department have retired and then been rehired, including the police chief and assistant police chief, Brian Rebholz.

Lt. Quinn’s request was turned down by the township, prompting him to immediately file a written complaint about the chief with Brown.

Lt. Quinn claimed in his Nov. 22, 2021 email the chief is lying about why he wasn’t going to be rehired, a copy of it shows.

He wrote in his email that the chief told him earlier that day he wouldn’t be permitted to return to the department once his contract expired.

The chief notified Lt. Quinn in a meeting that also included the assistant chief and the township’s human relations director, Tonya Charles, a copy of his email shows.

Chief Herzog told Lt. Quinn, according to Lt. Quinn’s complaint, “he felt he needed a Lieutenant to be more engaged with the officers and that I take a lot of off time. I then asked him if I wasn’t permitted to use my accrued off time, which he stated I was, but he wanted to go back to me not being engaged with the officers, whatever that means.

“I then stated to him, ‘no you said I used too much off time, am I not a loud (sic) to use my off time’ and he refused to address that issue anymore. I then asked him when did he ever address me not being “engaged” with my officers over the last two years? He advised it was verbal.

“Of course it was, because no one can prove it was a lie. I told him that he NEVER once came to me and talked to me about being engaged with my officers. He then said he had. He said ‘you don’t remember me saying they refer to you as the absent lieutenant.’ I said ‘you Absolutely never said anything to me about this’ and that he was lying. He stated that we would agree to disagree and I said ‘no, you’re lying and you know you’re lying.’

“I was then told the meeting was done and walked out with Ltc. Rebholz. While exiting I turned to Tonya Charles and told her that the chief was lying and then exited the office.”

Lt. Quinn wrote in his complaint to the township last year that he wasn’t as upset about the denial of the extension “than I was with the chief flat out lying about talking to me. Maybe you can review my evaluations and reviews over the last couple of years and confirm where he spoke to me about this. You won’t find it, because it never happened.

“This man is the head of our organization and has made racist comments and lies without hesitation,” Lt. Quinn’s complaint to the township continues.

“He has no integrity and I find it interesting that every time he is involved in lies or comments during conversations/investigations that it always comes back to it was verbal or “oops” we didn’t record the interview, especially during the investigation of the captains (sic) complaints against him. How convenient for this to always be the case.

“I am submitting this as my formal complaint against Chief Joel Herzog for his lack of integrity, racist remarks and lying. How in the world can this man still be leading this organization of the finest officers.

“For him to even comment about not being engaged with the officers over the last two years after he has caused turmoil over the last two years with his comments he admitted to making. I would say he is guilty of not being engaged with his officers. They are on the front lines being called racists due to our chiefs (sic) racist comments. He doesn’t bear any penalty for his comments, but our officers do.

“At what point will our township administration do what is necessary and replace this man who has lost all respect of his officers and lacks the integrity to lead a department of some of the best officers I’ve had the pleasure of working alongside of. I look forward to an open and honest investigation into this complaint against Joel Herzog.”

Despite the Quinns’ complaints being unfounded, along with six other similar ones filed in 2020, however, Brown wrote in her 2021 report, “there still seems to be some level of tension in the department. This may be hold over (sic) from the previous investigation and subsequent fallout.

“This investigator suggests continuing to focus on addressing departmental concerns that appear to add to departmental unease. First, there were multiple complaints about the chain of command not being applicable to all employees. This investigator’s recommendation is to be more aware of uniform application of paramilitary expectations, specifically regarding communications between subordinates and supervisors.

“Second, employees expressed concerned that a “good ol’ boy” system exists in the department, in which preferred employees receive special treatment from Chief Herzog. There is no evidence that this is true; however, perception is often more powerful than truth. Chief Herzog must be conscious that his actions have great impact on his department and that as the leader of the Police Department he must enforces proper distance between himself and his subordinates.”

Herzog was removed from the improvement plan earlier this year in a job performance review that praised him in many areas such as making good use of seized funds, making good use of the retire rehire program and knowing the force’s capaility and staffing needs very well, can anticipate workforce changes.

But, the review noted he should focus on building trust with the new captains, set clear parameters for dealing with subordinate staff at work and away from work and “remember he is always the Chief of Police.”

The review also states: “Still some hangover from previous years’ criticisms. Needs to involve appropriate team members with meeting with media. Use caution when having difficult discussions with staff. Adaptability and responsiveness is excellent.”

On Aug. 25, the township administrator, Burks, wrote a letter to Herzog documenting a meeting they had in which “expectations” of the chief were discussed.

“I enjoyed our discussion today. Thank you. I think a recap of the expectations are warranted,” Burks wrote. “For simplicity, I will be brief. I discussed and emphasized the following:

  • Continued attention to managerial responsibilities is critical
  • At all times possible, avoid situations that increase risk and township liability exposure.
  • Continue to be compassionate, creative and innovative, but maintain administrative situational awareness.
  • Complete the communications expectations prior to making important and organizationally impactful decisions.
  • Utilize your teammates across the organization more appropriately. A township spokeswoman, Barb Wilson, responded to our questions about Quinn’s EEOC complaint, similar ones filed by the captains and leadership in the police department.

Township Trustee Chairman Mark Welch declined last month to talk about the police department in any capacity when we reached out to him about Lt. Quinn’s EEOC complaint.

The township spokeswoman wrote to us:

“The EEOC complaints are a matter of process and we’ll wait to see what the outcomes are from the complaints made by former employees. West Chester Township endeavors to be the best employer possible giving opportunities for our employees to express their concerns and have a voice in operations.

“Choosing public service as a profession requires balance. Difficult choices are made to remain responsible to our taxpayers while meeting, and even exceeding, the expectations of those who devote their careers to public service. Personnel decisions regarding staffing and operations always have to be made with the best interest of the community as a priority, and are entrusted by the Township Board of Trustees to the Township Administrator.

The township spokeswoman did not respond to repeated questions last month about what brought on the August documentation letter placed in the police chief’s personnel file.

When we recently asked again if the township spokeswoman and the police chief could explain the reason for the meeting that prompted the letter in the chief’s file, Barb Wilson responded:

“Police Chief Joel Herzog is a respected leader in our community and our organization. He can respond if he chooses to do so.”

Chief Herzog did not respond to our requests in writing last month for comment about the letter and Quinn’s EEOC complaint.