Brian P. Gillan (0030013) Randolph H. Freicing (0009158) Trial Attorneys for Relator COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO THE STATE OF OHIO, ex reZ, Case No.: .IEFF REY L. BUTLER, JR. Judge Robert P. Ruehlman Relator, -vs- VERIFIED PETITION AND 2 COMPLAINT FOR A THE CITY OF CINCINNATI WRIT OF MNDAM US AND 801 Plum Street INJUNCTIVE RELIEF Cincinnati, OH 45202 -mda ELIOT ISAAC, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE OF THE CITY OF CINCINNATI City Hall 801 Plum Street Cincinnati, OH 45202 Respondents.- Comes now Relator, Capt. Jeffrey L. Butler, Jr. (?Capt Butler? or ?Relator?), by and through his undersigned counsel, and for his Complaint against Respondents The City of Cincinnati and Chief Eliot Isaac (?Respondents?), hereby states as follows: I. This is a mandamus action brought pursuant to RC. 2731, for a writ compelling the Respondents to remove from Relator?s personnel ?les and ETS records the investigative report underlying a reprimand which was issued to Capt. Butler on July 3, 2019 and unanimously reversed by 3 Peer Review .Panel on July 25, 2019. I 2. As a result of the Peer Review Panel?s decision, Respondents removed the reprimand from Capt. Butler?s personnel ?le and ETS records. However, the underlying investigation and report itself has not been removed, nor have Respondents con?rmed to Capt. Butler that he has not been, and will not be, placed on a Brady List as a result of the investigation which led to the reprimand that was reversed by the Peer Review Panel. 3. Relator therefore brings this action to compel Respondents to remove the underlying investigation and resulting report itself from Capt. Butler?s personnel ?les and ETS records, along with the vacating of all sustained ?ndings, and continuation that Capt. Butler has not been and will not be placed on a Brady List as a result of the investigation which led to the reprimand which was reversed by the Peer Review Panel. I 4. This Court has jurisdiction over this original action pursuant to RC. 2731.02. I. FACTUAL ALLEGATIONS. 5. In his position as the highest ranking officer in the City of Cincinnati Police Department?s Inspection Section, Capt. Butler was tasked with supervising the semi-annual Police Department audit of overtime usage. 6. This audit was conducted by personnel. of the Police Department?s Inspection Section under the command of Capt. Butler and under the oversight of then?Executive Assistant Chief David Bailey, the Administration Bureau Commander. 7. The results of the audit disclosed that the Police Department had incurred signi?cant overtime expenses, often as a result of inappropriate and illegal conduct, especially in the Police Department?s District 5, which was commanded by Capt. Bridget Bardua. :l-E 8. The audit disclosed that the Police Department spent millions of dollars in overtime with at least 15 of?cers bringing in tens of thousands of dollars in overtime each. 9. An inordinate amount of overtime centered in District 5, commanded by Capt. Bardua. 10. Capt. Bardua herself earned $82,723 in overtime during the audit period. Sgt. Jason Scott, who also works in District 5 under Capt. Bardua?s command, brought in $92,215 in overtime. 11. According to the audit, the payments are part of a broader problem involving Police Department overtime and police of?cer intentional manipulation of overtime. 12. The result, the audit found, is excessive overtime payments and compensatory awards, which ?enhance or maximize ?nancial compensation for some personnel at the detriment of the department budget.? (Exhibit A at p. 7.) 13. ?These appear to be systemic management issues,? the audit continues. ?The failure to adhere to established processes has resulted in a signi?cant and negative ?nancial impact and places extensive ?nancial liability on the [police] department.? (101) 14. The overtime abuse in District 5 was so systemic and pervasive that the of?cers in District 5 had developed their own shorthand phrases for seams to obtain unearned overtime illegally. 15. Those scams which were disclosed by Capt. Butler to Respondents in a post? audit submission included the following: Recall: Options related to investigate unit recalls. 1) Less than 1 hour at work. . .follows contract for pay but you get to go home and sleep in afterwards. . ..come in when you can without a slip for missed hour Captain on Call: Touch and Go; Hit and Skip: Pro?meetings: Pro?Meeting Prep: No Slip: Uniforms Option: Work outs/Errands: Take home cars: Court Maximization: Hours adjustment: 15 minute slip: 2) If you stay more than an hour and the call woke you up, the . recall is paid for the 4 hours at 1.5 times the hours, and it covers your next work day as well. . you stay home without submitting a slip..plus you go home when done no questions asked 3) If you are called and reSpond, the supervisor is on standby for ?rst hour if not a serious life threatening offense. You call the supervisor and advise. .he then submits a slip even if he did not show investigative partner gets the same treatment. .plus no work the next day Call if anyone was looking for Capt. Bardua. . .work outer at home, etc. Holidays or weekends. . .you show up for an hour and are seen by patrol personnel then leave, the next investigator comes in later and does the same until all are seen- . .the theory is if anyone asks if so and so was seen, the answer is always yes. For community meetings. . .spend no more than ten minutes and leave to maximize pay and limit time. . ..Capt. Bardua did this then visited 9 pm roll call for 10 minutes for another 2 hour slip. Scam to meet with captain on paper before meetings to gain additional OT. . . she went home or left district to go home or elsewhere. . .no meeting occurred or was short in duration. Same theory as above by of?cer. No slip for time off needed if your ?government work? could not be tracked, Kids rides, games, etc.? Wear uniform only if meetings, shorts/casual clothes were ok. for ?rst few hours. Investigators could work out, run errands, shop, etc. anywhere as long as radio or cell phone on. Assigned but not approved by the Police Chief. Adjust hours to get court compensation or dead time. Adjust to work details or PVC. Do not submit. see Hagernan and Wheeler investigations and Form 17?s. - . Elimination of Non Team players: Transfer people for bogus reasons if they complained or did not participate or make their life miserable so they ask to leave. 16. Capt. Butler brought his concerns regarding overtime abuse directly to Capt. Bardua during the audit period. 17. In addition, he brought those same issues directly to Respondent Chief Isaac on several occasions, including most recently on February 10, 2018. 18. The prior evening (February 9, 2018), Capt. Butler had raised these issues again directly with Capt. Bardua, this time at her residence. (Butler and Bardua live on the same street.) l9. Due to the chronic health condition of a fart?ly member, Capt. Butler would occasionally have to be home during the week. 20. On each such occasion, he took personal time off and was not on the clock for duty or overtime purposes. 21. On those occasions, be routinely saw Capt. Bardua?s Citywissued vehicle at her residence during hours for Which she claimed overtime or on duty. 22. Capt. Butler talked to Capt. Bardua about her abuse of the overtime system. She commented: ?what happens on [our street] stays on [our street].? 23. Capt. Butler raised. the same issues with Respondent Chief Isaac; He did nothing. 24. In addition, Capt. Butler would see Sgt. Voeikerding driving City-marked cars and unmarked. vehicles at and near his residence during duty hours or when he was claiming overtime. 25. Capt. Butler raised these issues directly with Capt. Bardua and Respondent Chief isaac. They did nothing. 26. In Capt. Butler?s reasonable belief, the systemic abuse of overtime in District 5 headed by Capt. Bardua constituted felony theft. 27. Under Ohio Revised Code 2921.22, Capt. Butler was compelled to report that abuse to law enforcement authorities. 28. He did so directly to Respondent Chief Isaac on numerous occasions. 29. On previous occasions when police of?cers or civilian staff had been found to have intentionally abused the overtime system, disciplinary action had been instituted against them. 30. On this occasion, Respondent Chief Isaac repeatedly refused to initiate any disciplinary investigative action against Capt. Bardua, or permit any other law enforcement of?cer to initiate disciplinary investigative action Capt. Bardua or those under her command. 31. Rather, Reapondent Chief Isaac went out of his way to protect Capt. Bardua from the consequences of her abuse of the overtime system and her allowing of?cers in District 5 to abuse the overtime system. 32. Rather than discharge his duty and pursue disciplinary action against Capt. Bardua and those under her command who have ?agrantly and illegally abused the overtime system, effectively stealing Cincinnati taXpayer monies for their personal gain, Respondent Chief Isaac has instead retaliated against Capt. Butler and other high-ranking Cincinnati police of?cers who had challenged his failure to act in regard to these matters. 33. The ouster of Executive Assistant Chief David Bailey in March 2018 following public release of the overtime audit is just one example. 34. In addition, Respondent Chief Isaac has effectively marginalized Capt. Butler in retaliation for his complaints about Respondent Chief Isaac?s inappropriate relationship with .: Capt. Bardua and failure to act on her abuse of the overtime system; Capt. Butler?s role in supervising the audit; and Respondent Chief Isaac?s mistaken belief that Capt. Butler was involved in the public disclosure of the overtime audit. Effective March 18, 2018, Respondent Chief Isaac transferred Capt. Butler to the Cincinnati Police Academy, but stripped him of any substantive responsibility. 35. Largely as a result of the allegations raised by Capt. Butler, including his allegations of felony abuse of overtime by Respondent Isaac?s close personal friend and con?dant, Capt. Bridget Bardua, and those under her command, Hamilton County Prosecutor Joseph Deters impeneled a Grand Jury. 36. The Grand Jury issued a Subpoena on April 27, 2018 for documents related to the February 2018 semi-annual Police Department Audit of overtime usage and Plaintiff? allegations regarding abuse of the overtime policy. 37. Deters also referred the matter to Ohio Auditor Yost for investigation. 38. During the course of Auditor Yost?s investigation, the Auditor?s investigative team requested supporting documentation for the Audit. 39. At least one banker?s box containing numerous documents directly relevant to the Audit and, to the Auditor?s investigation, and reSponsive to the Hamilton County Grand Jury Subpoena suddenly went missing. 40. The fact that those documents were missing was known to Respondent Isaac and Respondent City of Cincinnati since at least June 13, 2018. 41. Nonetheless, Respondents made no sincere effort to find those documents. 42. Rather, it was not until Capt. Butler was asked to meet with an investigator with the State of Ohio Auditor?s Of?ce that this issue was addressed. 1 El lee . a 43. Respondents? loss or destruction of these documents, and their lackadaisical attitude toward ?nding the documents, promptedCapt. Butler to ask the Acting City Manager (Patrick Duhaney) for an external administrative and/or criminal investigation on October 17, 2018. (See Exhibit B, attached.) 44. Rather than begin the external investigation Capt. Butler requested, Respondents instead began an internal investigation. 45. That internal investigation was not designed to ?nd the missing documents or determine why they were missing; instead, it was designed to unfairly implicate Capt. Butler. 46. The investigation included a ?nding that resulted in the issuance of a reprimand to Capt. Butler on July 3, 2019. 47. Capt. Butler appealed that discipline to a Peer Review Panel and, on July 25, 2019, that Panel issued a unanimous award reversing the reprimand. (Exhibit C, attached.) 48. That award also found numerous substantial con?icts of interest and inappropriate conduct which undermined the integrity of the investigation and its conclusions. (161.) 49. On August 5, 201.9, counsel for Capt. Butler sent a letter to the City Solicitor for Respondent City of Cincinnati, asking her to con?rm that not. only was the reprimand removed. from Capt. Butler?s personnel ?les and ETS records, but that the underlying investigation itself would be removed from Capt. Butler?s personnel ?les and ETS records, along with the vacating of all sustained ?ndings. (Exhibit D, attached.) 50. The letter also requested that the City Solicitor con?rm that Capt. Butler has not been, and will not be, placed on 3 Brady List as a result of the investigation which led to the reprimand that was reversed by the Peer Review Panel on July 25, 2019. (lot) .. I: 51. To date, counsel for Capt. Butler has received no response through this inquiry from the City Solicitor for Respondent City of Cincinnati. 11. CLAIM FORRELIEF '52. RC. 2731.01 provides that: ?Mandamus is a writ, issued in the name of the state to an inferior tribunal, board, or person, commanding the performance of an act which the law speci?cally enjoins as a duty resulting from an of?ce, trust, or station." 53. RC. 273 .04 provides: ?Application for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying, and veri?ed by af?davit.? 54. The award of the Peer Review Panel detailed above makes it clear that the investigation underlying the reprimand improperly imposed upon Capt. Butler was fatally ?awed and irrevocably tainted against Capt. Butler. 55. Therefore, merely removing the reprimand from Capt. Butler?s personnel ?le and BTS records will not cure the problem, since the inappropriate investigation itself will remain in Capt. Butler?s personnel ?le and ETS records for future use against him. 56. Given that Respondents have a long track record of retaliation against Capt. Butler and others who challenge them, Capt. Butler is left Without recourse to a potential inappropriate use of the tainted investigation by Respondents to further retaliate against him. 57. This Court should therefore issue a writ of mandamus compelling Respondents to remove frOm Capt. Butler?s personnel ?les and ETS records the investigation and report underlying the reprimand which was reversed by the Peer Review Panel on July 25, 2019, along with the vacating of all sustained ?ndings, and con?rmed that Capt. Butler has not been, and will not be, placed on a Brady List as a result of that investigation. WHEREFORE, Relator requests relief from this Court as follows: a) A writ of mandamus directing Respondents to remove from Capt. Butler?s personnel ?les and ETS records the investigation and report underlying the reprimand which was reversed by the Peer Review Panel on July 25, 2019, along with the vacating of all sustained ?ndings, and con?rmation that Capt. Butler has not been, and will. not be, placed on a Brady List as a result of that investigation; and. b) Such further and additional relief as is necessary and Respectfully submitted, 5/ Brian P. Gillan Brian P. Gillan (0030013) Randolph H. Freking (0009158) Attorneys for Relator FREKING MYERS REUL LLC 600 Vine Street, 9th Floor Cincinnati, OH 45202 PH: 513/721~1975 513/651-2570 bgillan@?nr. law CERTIEICATE OF SERVICE I hereby certify that on August 14, 2019, a copy of the foregoing was sent via electronic mail, as follows: Paula Boggs Muething, City Solicitor Email: paula. b0ggsmuething@cincinnati?0h. gov City of Cincinnati Solicitor?s Of?ce 801 Plum Street, Suite 214 Cincinnati, OH 45202 Brian P. Gillan 10 Brian P. Gillan (0030013) Randolph H. Freking (0009158) Trial Attorneys for Reiator COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO THE STATE OF OHIO, ex rel, JEFFREY L. BUTLER, JR. Rel ator, THE CITY OF CINCINNATI 801 PIum Street Cincinnati, OH 45202 -md- ELIOT ISAAC, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE OF THE CITY OF CINCINNATI City Hall 801 Plum Street Cincinnati, OH 45202 Respondents. STATE OF OHIO SS: COUNTY Case No.: Judge Robert P. Ruehlman VERIFICATION AND AFFIDAVIT _.or JEFFREY. L. BUTLER, JR. Before me, the undersigned Notary, personally came and appeared Capt. Jeffrey L. Butler, In, who after being duly sworn, deposes and says as follows: 1. I am a resident of the State of Ohio, County of Hamilton. 2. I have reviewed the foregoing Veri?ed Petition and Complaint for a Writ of Mandamus, State Ex. Rel Butter v. City of Cincinnati, which action is brought in the name of the State on my relation. I 3. I have personal knowledge of the matters set forth in the Veri?ed Petition and Complaint. The facts in the Veri?ed Petition and Complaint are based on my personal knowledge. FURTHER AFFIAN SAYETH NAUGHT. Ctheth Af?rm? Sworn to and subscribed before me on this i :3 day of August, 2019. - P. GILLAN Notary ?1?th Attorney at Law Notary Pubtic, State of Ohio My Commission Has No limitation Date. Section 14103 08.0. - Case; Doc 33: 22~1 Filed: 04/26/18 Page: 32 of42 PAGEID ii: 158 oil?ml lixl ill \l i l/ i 3 Companion? Shoot 3 I Date: February 15, 2038 To: Colonel Eliot K. isaao, Police Chief From; Lieutenant Colonel David J: Bailey, Executtvo Assistant Police Chief Copies to: Subject: Semi-Annual Audit of Overtime in March of 2015 the City of Cincinnati Citizen Complaint and internal Audit Department published on overtime audit of the Cincinnati Police Department (CPD) As a result oi the audit: the Dopartmont was presented a number of recommendations relative to the usage of overtime. CPD agreed with many of those recommendations in their entirety. including a to a semiannual overtime audit to be conducted by the CPD inspections Section. The audit is necessary to ensure the Department is adhering to its commitment to minimize the use of overtime spending whenever possible. inspections Section has completed tho most recent audit which roviowed tho top overtime oamero by rank for pay periods 1 through 26 for 2017. Although the amount of overtime by itself cannot be the basis for making any determination as to justi?cation, Department managers should at a minimum consider the a is the use of overtime absolutely necessary to ful?ll the Departments mission?? 3' Is the allocation of overtime in each distric?soctionfunit equitable? 9' Are the wonting hours of the various Dopartmoot units in lino with actual service needs? For example, if very little community interaction takes place in the early morning hours, neighborhood and investigative units may achieve more outreach services to the late afternoon hours without the reliance on overtime. For planned meetings and events occurring just before or after a shift. overtime should ho oontrollod by adjusting working hours as pomitted by the current labor contract. a The labor contract also permits the Department to utilize four discretionary off day ohangos per year to minimize the usage of overtime. ?2 fAdJusting starting and ending Shift times to maximize compensation is also prohibited Another issue which has surfaced in this particular audit pertains to the use of the PVC) funds allocated by Council: As Section has learned, thoro are some Department units who are operating under the promise PVO paid in compensatory limo can be utilized In to their monetary allotment. Essentially, the belief is PVO paid in time is not of budgetary consoouonoo to tho Dopartmoht. Recommend the audit summary be distributed to each Dopartmont bureau for review and any appropriate action doomed . 5 Ii .15 Case: Doc 22?1 Filed: 04/261?18 Page: 33 of 42 157 This audit examines overtime etlocatlon in the followlng formats: Aggregate spending trends by overtime category Aggregate overtime spending by Bepertment humane and unite Top overtime earners by rank at Random overtime audits by Department unit Pretlminary Findings 9 8 6 edema! Ueede by?eteoot?y: Department Overtime ls oeuelty categorized into three broad categories: Contingency Gvertime Overtime incurred as a result of preptahned or forge events or programs such as protection some PVO projects, demonstrations and SWAT functions. In some cases, management can control these expenditures through ptaontng and controlling the numbers of personnel needed for these extents. Patron and officer safety are large factors to consider a Court Overtime Overtime incurred as a result of of?cers being needed to assist with ease prosecution in the various court layers. Management can control overtime by ensuring personnel adhere-to court control and attendance procedures. a Increment Overtime - Overtime associated with achleving the Department?s various operationet needs and mission? Much of this overtime is subjective and largety controlled or at the discretion of Department managers. Looking at the spending In each of these categories elnce 2012 it?s evident the use of Contingency end Increment overtime has sharply lncreesed: . {1%th . . Modeled .. .. 2652'" . 630;525.00. ..3.036.'201.001 W, 2:113" 362,886-00 emeIZDeoo .. . moment)? 2015. .. .. . .. 2244,67730 fete.) (239994530: 2,251,?3?8?00' 2,373,350.00 2017 eu-egetemeunts e,3oo,eeo.eeg deit?tt?itd - Contingency Overtime grew to 2014 due in part to the restoration of WC) funding being added to this category. On the other hand, Court overttme has dectlned in tine with decreased enforcement numbers. increment overtlme has grown due in part to increased expenditures to Events, Investigations, Recoil, Meetings, Personnel Shortage and Teaching. In 2016, the budget was modi?ed to also capture expenditures by the Emergency Communications Section. Case: D66 6: 224 Filed: Oil/26118 Page: 34 6142 158 Bi. 06666661136517}8166661116 86 Bureau: P6661 8112666 ?F?etiod In 201? whsr? Wartime spending for pay 6666666 16666116666116 3161?6641?813 66:1 313 (361661666) 416541.66 - .2615 46164666 [2616 462. 611.66 36666:?: 866666 661166666 . Trainlng: .. 2612 3.913 1.49.16 ?26.76.6400 7'862000 37.61166. 26. 626 66 146,346.66 2616 162,354.66 16 646 66 - 64,285.66, 72,764.66 . . . 582.667.00 5790300 77'" 6 1661611 176661616; 61614616,: 6166161 6 3 61616616 ""6676 166i 676167 44166 66 41 664 66 31:12 266 111 ,164777 66 7167661 66 166 626 66 546. 676. 66 44. 532. 66' 62 37.5.9.9. 71 626676766 21 565 66 .546 667 1 61,215.66 .?653'271'1 66 . 26211 67,566.66_5165 656 66" 712,645.66" 74665266 6616 7111, 656.66 266565 623. 66 47673 46 ?666,615.46 - 6616 144 556 66 115 ,466 66 324, 663 66 - 123. 466 66 651.666 99. 63 672 057 1.671.642.66 26127 146 436. 66 1164 566557 00777 46 546 661665 646.15 ""2646? 166614134" 6616 1416111414 ".2617766.575 66 . 6?23 66.66 26__,_666 '66 77 1471661526 . w; Inspections." 7 .215. 66 .178 978.01) 101116667 '66! [65136611065 7 .. 11151381666666666. 2. ?356. 0.0. .7 - . Case: Doc 1.1: 224 Filed: 0472621718 Page: 35 of 42 PAGEED 11: 159 5 rate In number of hours Does not inciuda Court 51511511 B15551: Overtime Incurred ?By Bureau; W1 515111511 {115151512 {315111513 Dis-11111111.? 511511111115 11333 ?1311;171- 114.6 70 19,16 50 955 95 515.95" 5685.51 5351335,- 114755 1532 55 ..1458-13- 1954199.. 39919 93135? 9550 49: 51121115 357 27 .. 1770- 55 3225555.;992195 511198 739999? 12529qu 795 _22 I 1551 05: 1509. 55 2155 55 21151.30 ?555.55 5153 25 I 1355011 in 2111? whens 131757111115 39731151115} for. pay 1.1111155 11117551155211.1115 81.115511 and $.15 {201111311155} 111525 ?25111. 595.20 1111 1233.90 .. - 2016 1254.07 5205 :55 CAD System Deployment and Training Included: Source of payment Fund 364 Administratlon Bureau ?63? 19.32100 ?335 .. 1 5.9.1.5.. 33115 136-5.. 111 01155175.. . 1 2:11.11: 38:90 911 Phone Sysiam Instaliation Inciuded 1110111813 -. 283 70*? Case: DOC #1 Filed: 04/26/18 Page: 360142 PAGEID #1 160 35" ?1'05 2235311515 5225535125 5:255: $522112. F1151Nam3 L551 Name Aaaignmani? OTTotai 1 Financi?fw Haum impacf (Pay and . -. . 9 22.1.3.3 33.3931 ..33r333 F33 [58222313 (3333331 . {381112 I F1331 - $53 2.3.3 0331313 33333 33333 T3333 ?5'95 ..-33983933 1 ?03.312152 . Lisa; ..Davls .. 0733. ?29; 5 James: 33333 - T33 333.33 3552 'Lasmma 527525: Fmanciai Haws impact i (Fay and f- i 3mi- m?avi'd Jahnstan" $45 555 55 WWI-333333331 M313 83333 Fcur . 5.1.2.33 53430252 Lieutenant 3 Christina: Brieda inteigance 55135335 WW Lieufienant?? Aridrew" MitCheil Faur . 418.25 ?152515524 U331333r3 David Seh??ald 304.35 527 "555 09? 222225512: Flr?f' L222 Mama 9. Maignmant 226T Tami . Fi?anciai Name 1 Hoummay impact Sergeant . Jason" Volkardina E33 5125 225 52?. Sergeant 438ng 80911 Five 1581 2; 52221514 H313 .Patroi'AdminV? 3338 .35.. 33.6245. 33.. Sergeant Timethyw. Lamar 5.. 1 127 83 3 $68,599.45 . I . 3933' VauathFwe .. 101123 $590133: 333433333351 5.333333: 15555511055 85611531 is continuing in the Semi-Annuai Audit pursuant to the agreed 5pm pmvisions :31 the City of Cincinnati Citizen Complaint and internal Audit Report dated March 2016. 1nspectians 89011511 Standard Operating Procedures and estabiished 5551 132503555 reiated 10 ?nancial management. The purpose of the audit is to ensure wmpiiance 10 the rules, regulations, procedures and 5059155 55555121421 with the management of activity. The audit 1035553 on compensatian and finance management mandates. while presenting recommendatlons to enhance 511551550553 presanted In the 25:39:21. The intent of the report is 19 previde the necessary informaticn 15 assist the Senior Command Staff in achieving sound ?nanciai management 51? the Department. The audit ?ndings. conclusions and recommendations far the purposes of this report are intentionally presented ganaricaliy Specific; or individual Distric?SeciionfUnit findings are attached to the repart and have been pmvided to ihe affected Bureau and Disiric?dSec?on commanders far their review Case: Doc 22-1 Fiied: 04/26/18 Page: 3? 01?42 PAGEID a: 161 Corrective or administrative aotion will be ieft to the direction of the Police Chief and Senior Command Staff. The methodology for the audit included reviews of: Managoment and Oversight. Lineups. - a Work hour comparison (published in the assignment report and actual). 9 Procedure compliance. a Contract compliance. a Overtime: PVO, Court and City sponsored activity via Form 68?. Overtime: Outside Employment Extension of Services Details at 1.5 Rate of Pay (Reimbumable). a. Outside Employment Extension of Poiice Services Details (Git-Duty Rate). a Supervisor Monitoring Reporting. Sick Time Usage. Patterns of Conduct a Financiai impact on the Department and City of Cincinnati. Technology Capacity. The following Department units were audited: . District One investigative Unit. . District Two Neighborhood Liaison Unit. a District Three Violent Crimes Squad. a District Four Third Shift. 9. District Five Neighborhood Liaison Unit. 5 Central Business Section. 1? Criminai investigation Section Major Offenders Unit. 0 Emergency Communications Section. at Special investigations Section Narcotics Unit. Vi. Proiimioeijv Fioriinggei The audit reveals a moiorityof Department poi-sonnet are conforming to the estabiished ruies. regulaiione. prooerioroe- and with the roeni-igement of empioyeo :eoiivily, and finance management The audit highlights a email fraction of management and personnel actions are disproportionately negatively impacting the Department Budget. Case: Doc: ii; 22?1 Filed: 04/26/18 Page: 38 of 42 ii: 162 {Department policy on tho matter is clearly sooilod out in Procedure and which states in {3311: Avoio ovoriimo possibio. ?ll Mi! ot?vo io oVorfimo hours workooi. Supervisors will conoidor (he use of Gin-duty pomonnoi or Wm adios! the employee?s hours rather than s?hoo?ullng ovo?imo, if con froctuoiiy permissible. Pertinent provisions of the contract dooling with shift separation and shift changes most also be consio?erod. However, the audit findings have revealed significant concerns and/or violations of basic management principles, documentation. ovoroight. and infractions. Those inciudo, but o?ro not limited to. of the labor agreement and management oversighi to enhance or maximize ?nanciai compensation for some personnel at the doto?mont of the Department budget. Keep in mind the forensic portion of the audit only examined top overtime earners by rank and Department Units identified in the contents of the extomai audit. Based on the analysis of payroll related documents or in many cases look of required documentation aliogoiher for this limited sample size. inspections Section boiiovos there is enough ovioonco to suggest there is a look of management oversight which has camsod signi?cant negative financial impact to the Department. Aithough this is our preliminary belief, a true forensics anaiysls involving all personnel records would be required to confirm this motion with any degree of certainty These appear to be systemic management issuoo as they have been the central {homo of prior audits and reports previously submitted by inspections Section? internal investigationS, Dioi?c?SoctionlUnit iovei complaints in addition to external audits conducted by other City Departments. Also as referenced in previous reports, de?ciencies reiatod to existing Department tooimoiogy and the for disparate: systems to compare or contrast data sets are impacting management capabilities, Genoraily, speaking, the "silo effect" of dais: warehousing coupled with technology de?ciencies iimito iho ability to monitor activity in real time. Historic examination is also limited duo to the varioth systoms inability to keep up with organizational or coding changes aosooiateo with the numerous Department units and sections. The Information which was available for review indicates oithor individual or organizationai patterns involving violations of the following directives: The Department Policy and Procedures. 9 The Manual of Rules and Regulations and Disoipiinary Process. 43 Labor Agreement between Fratomoi Order of Police Queen City Lodge 69 and the City of Cincinnati. Case: Doc #:22~1 Filed: 04/26i18 Page: 39 01?42 PAGEID #:163 After the previous semiannuai audit of overtime conducted in July of 2017, inspections Section began to understand the magnitude of the management oversight issue at the line levels of the organization. he a result, inspections Section developed a plan to address these shortcomings from a centralized perspective. Those recommendations included increased regulation. control and management related to employees who were engaged in activities related to Outside Employment mansion of Police Services Details. This proposal also included services compensated at the overtime rate as well as the specific financial mandates established by City of Cincinnati Ordinances. The and it indicates a number of issues pursuant to the payment of Department overtime funds.- They can best be categorized in three categories: i. Qrgenizationai issues. 2. individual Employee Actions. 3. Procedural and Tlmekoeplng. isi iss- 1.: so: The City of Cincinnati Citizen Complaint and internal Audit Report submitted in March of 2016 contains ?ndings relative to their assessment of Department overtime and offers sixteen speci?c recommendations to improve Department accountability in this area. The Department is working on achieving complete compliance with all of the agreed upon recommendations. To be balanced in our assessment we feel the Bepertment has a signi?cant number of DistrictJSectiohJUnlts which are generaiiv meeting their management obligations, incurring only a few modest clerioai or management oversight failures. Oh the other hand, the audit has found patterns of failures involving basic supervisory and administrative obligations. These include but are not limited to: a Look of documentation to support the allocation of PVC) funds. a Lack of documentation reporting the outcomes of PVC) expenditures. 1? Noh~oompiianoe with the review and accuracy of the Assignment Report. or inaccurate Lineuos or Forms 202, including con?icting start/end times. missing Forms 255. 440 and 443 and omissions of personnel or duty hours. Note: These reports were processed and approved at multiple levels of supervisory and command review. at or circumvention of the provisions of the Labor Agreement. . Failure to investigate and/or issue corrective action forwom activity violations. 0 Non-compliance with the provisions of Procedures: 1 2.815: ?ood cit-loos tonic: tittiier; ilesii?i'oos 12.816: Qty-its}! Scottviio'o'earences' ?2.817: . 12.820: ihi'eerines end. Recalls 12.825: ?rs-onefrieniog?jiitie rent-i Case: Doc it: 22-1 Filed: 04/26/18 Page: 40 of 42 164 irjicii-eidoei The violations range from improper or unearned compensation to failures to submit procedureily mandated documents required for record keeping andlor billing for services mandated by City of Clnoi nnati Ordinance to addition to violations of Department directives or policies there are also ethical issues to also consider. i Court Compensation: Officers have been identified submitting for compensation from the City of Cincinnatl and outside employers for court appearance occurring at the same time. Court Compensation: Of?cers with a pattern of conduct related to intentionally adjusting duty hour assignments to maximize earning overtime for court. Additionally, some of these appearances should have been addressed in an "on duty? or ?on call" status. Court Compensation: Officers compensated by the City of Cincinnati for activity resulting from Outside Employment Extension of Police Services Details. Court Compensation resulting from violations the Primaryr Of?cer Concept. Court Compensation: Patterns of conducts resulting in unauthorized "Dead Time? compensation Duty Hour Adjustment to facilitate Outside Employment Extension of Police Services Details as opposed to Department primary tasks. Doubie Pay for On Duty activity and increment overtime or outside Employment Extension of Police Services Details Duty Hour Adjustment without completion of proceduraliy mandated Department Voluntary Shift Deviation Forms. Failure to submit Forms 258 Leave of Absence Forms to comply with Procedure mandates requiring a fifteen minute separation in duty hours In extreme instances, there have been a substantial number of failures attributed to a single officer. Failure to investigate and document procedure violations related to employee conduct. Patterns of abuse of sick-time in conjunction with increment overtime. Patterns of conduct to avoid the contractually permitted adjustment of work hours by two or less hours; which resulted in extensive overtime obligations. Patterns of adjustment of Duty Hours to maximize oveitime opportunities. Pattems of overtime opportunities reassignment to isolated groups. Failure to sopervise and monitor employee activity. Failure to review and approve overtime compensation. Inconsistent compensation related to Shift Deviation compensation. inordinate amounts of overtime awarded to selected officers and supervisors. Overtime not equitable distributed across the unit Supervisors and officers awarding themselves overtime for taskis s) which could have been performed by on duty personnel by partaking andior authorizing unnecessary functions to earn overtime compensation or time. Case: Doc 231 Filed: Page: 41 ot42 PAGEID it: 165 Procedure} and Tintekeeoi?riqissues; The City of Cincinnati Citizen Complaint and internal Audit Report submitted in March of 2016 contains specific findings related to accounting and timekeeping functions to better manage compensation. These are found specifically in recommendations 6,7,83,10.? and 12 ot that report. Although the Department continues to implement the recommendations contained in the report. this audit echoed some of the same issues. The audit reveaied signi?cant differences in how individual timekeepers interpret: a The provisions of the Labor Agreement. at The provisions of Department Policy and Procedures. Additional factors which have impacted the Timekeepero ability to properly account for overtime include: .. Supervisor failures in the review and approval process rotated to employee activity. Supervisor/Command ievel management failures in the supervision of timekeeper activity and calculations of overtime. These failures have not only resuited in signi?cant financial loss to the Department but also constitute many missed opportunities to minimize overtime. Vii. Recommendations; A comprehensive review of the audit packet by the Police Chief and Senior Command Staff to determine the actions moving foward to address the issues presented. These include: . Complete a foii impiementation of the recommendations outlined in The City of Cincinnati Citizen Complaint and internal Audit Report submitted in March of2016. . implement recommendations made by the inepections Section to enhance their ability to effectively manage overtime and extension of police service opportunities. 9 Procedure revisions where necessary. a Form revisions to better describe overtime and work status. Organizational accountability at all levels. including ensuring adherence to policies and procedures, including supervisory intervention and education. 0 Enhanced auditing capacity. a Fully investigate all infractions or violations identified in the audit. a Progressive disciplinary actions for violations up to and including termination it warranted. Determine how best to utilize the proposed Kronoe Personnel System to optimally mange personnel and overtime use. Centreiize the Court Compensation Timekeeping Function. Centralize the Detail Coordination Functions. . 5 Case: Doc if: 22?1 Filed: 043?25/18 Pageintegrate Finance Management into ongoing overtime reporting functions, to include pay and time reports. a Should there be any questions or challangas to the validity of the findings contained within this report. a third party independent review should be requested. 0 Written requests and justi?cation for the allocation of non-emergency PVO Funds to include a statement of the issue or problem to be addressed. an associated plan of action with expected rasults/ilmelino. Additionally, the completion of a final report detailing the results and recommendations for further implementation of the plan when similar issues are presented in other areas of the City. Vill. Concluaion: in conclusion, the Police Department has policies, procedures, reporting processes and rules in place to manage and monitor employee activity and compensation. We contend the Department policy Is quite clear in this regard. The audit finds regimented andior highly supervised mission oriented units generally realize only minor clen?oai errors and do not disproportionately contribute to issues detailed in the report Assignments with lax or overly flexible supervision are particularly problematic and result in signi?cant and continued patterns of negative conduct Commanders must remain attentive and engaged In the oversight of these units. However a clear pattern of the failure to inspect and manage the process has been revealed in a number of DistrictsiSectlons/Unlts or by individual officers and supervisors. The failure to adhere to the established processes has resulted in a significant negative ?nancial impact and places extensive ?nancial liability on the Department The basis of the failure may range from intentional actions to maximize oompensation or possibly a general misunderstanding of basic management principles. Inspections Section believes these ?ndings in some cases are serious as wall as potentially systemic. That being said, we would recommend the. Department formulate a strategy to mitigate these conditions as soon as possible. Inspections Section would support being part of a Department wide effort organized for this purpose. DJ NC - Interdepartmental Correspondence Sheet Date: October 17, 2018 To: Patrick A. Duhaney, Acting City Manager From: Captain Jeffrey L. Butler J11, Training Section Commander Copies to; Subject: Request for External Administrative and or Criminal investigation: Public Records On October 17. 2018 at 1300 hours, i met with Mr. Kevin Baute, investigator with the State of Ohio Auditor?s Office and Lieutenant Colonel (Ltc.)Teresa Theetge reference the Police Department Annual Audit completed in February 2018. The purpose of the meeting was to review the Annual Audit calculations submitted by Lieutenant Colorist David Bailey and myself. Prior to the meeting, 3 received an email on October 2018 at 0903 hours from Lieutenant Colonel Theet?ge indicating (out and paste from separate email) that Mr. Baute was requesting supporting documentation for the Audit. Specifically: "l will have my Calculations and what I came up with at that time as well to compare. in preparation Tl to lair-e a copy will? ares-fatter the meeting to resilient and: tar-seams: Irina-came regoefsfed and rear-ly- for the meeting that letting-be helmet? On October 11. 2018 at 0938 hours. i reaponded via email to Us. Theetge requesting permission to contact Mr. Baute for clarification on the agenda. Ltc. Theetge replied via email at 1343 hours the she would clarify the reqUest. (attached) At 1344 hour. Ltc. Theetge replied via email: ?Just 11? is my understanding that he simply wants to know how you came up with the dollar amounts that were listed in the audit. At 134? hours, i replied via email ?meets a .sigai?cent amount of documentation {tattooing notes, electronic files and paper copies. plus-files. Supplied and ITMS that are int-lee aaitikars pee know speci?cally What he needs or have an agenda that will help. Otherwise we will spend a lotL of time just searching for speci?c. On October 16, 2018 at approximately 0845 hours, Ltc. Theetge with Captain Dennis Swingley contacted me via telephone concerning the location of the Audit supporting documents. advised the information was clearly marked and secured at inspections Section prior. to the transfers. of Lieutenant Barbara Young, Sergeant Douglas Frazier and myself. Lto. Theetge advised; the documentsicouid not be located. On October 17, 2018, at 0740 hours, Captain Swingley advised he had conducted another search of the lnspections Section offices and were unable to locate the documents. The lack of maintenance and securing the documents is significant and has been known to the Department since. at minimum June-13, 20158.. 'S-Ipecifieailv: t. was contented by Captain Swin?giey via telephone something the. leoat'io'o' of the to a request from Ltc. Theetg'e, i advised the were maintained-at injapeetioas i advised a portion of the documents were available from Assistant City Soticitor Julie Bissinger, pursuant to her representation of the City, Lto. Paul Neudigate, Lto. Bailey and myseifas reiated to an EEOC complaint flied by Bridget Bardua. On June 14, 2018 Captain Swingiey advised via email: "Ltc Theetge said she wouio' ask Sarah Bissinger for the records. The lack of avaiiability of the documents and inspections notes is a significant issue and places extensive liability on the Potice Department and the City of Cincinnati. These include but not limited to: a Adherence to Ohio Pubiic Records Law a Compliance with a subpoena issued to the City the Cincinnati by the Hamilton County Grand Jury on Aprii 2018. a Response and defense of the EEOC complaint fiied by Captain Baroda for the City, Ltc. Neudigate, Ltc. Bailey and mysel-i? Ptaintitf and Defense response in the matter of Butter v. City of Cincinnati Ohio at al. Ohio Southern District Court Case 1 :ii?~cv?00604. I respectfully request an independent external Administrative and or Criminal investigation related to securing and maintenance of Public Records as mandated by the Ohio Revised Code. i believe an external investigation is necessary due in part to theconfiict of interests presented in this document to ensure!'theainvestigation integrity; the disotesttre of :add-itionat information from witnesses empioyed by the Fatty 'of. emerges and to pr?oteet and preserve. rights; of individuals involved in administrative or legai _.t5moaedih}g.. JLBJ 1031 NEW Lawriler - ORG 3.42 Tampering with records. 2913.42 Tampering with records. (A) No person, knowing the person has no privilege to do so, and with purpose to defraud or knowing that the person is facilitating a fraud, shall do any of the following: Falsify, destroy, remove, conceal, aiter, deface, or mutilate any writing, computer software, data, or record; (2) Utter any writing or record, knowing it to have been tampered with as provided in division (Am) of this sechon. (B) Whoever violates this section is guilty of tampering with records, (2) Except as provided in division of this section, if the offense does not involve data or computer software, tampering with records is whichever of the foiiowing isapplicable: If division of this section does not apply, a misdemeanor of the first degree; If the writing or record is a will unrevoked at the time of the offense, a felony of the fifth degree. (3) Except as provided in division [50(4) of this section, if the offense involves a violation of division (A) of this section invoiving data or computer software, tampering with records is whichever of the foiiowing is appiicabie: Except as otherwise provided in division or of this section, a misdemeanor of the first degree; If the value of the data or computer software involved in the offense or the loss to the victim is one thousand dollars or more and is iess than seven thousand five hundred dollars, a felony of the fifth degree: If the value of the data or computer software involved in the offense or the toss to the victim is seven thousand five hundred dollars or more and is less than one hundred fifty thousand dollars, a felony of the fourth degree; If the value of the data or computer software involved in the offense or the loss to the victim is one hundred fifty thousand doilars or more or if the offense is committed for the purpose of devising or executing a scheme to defraud or to obtain property or services and the value of the property or services or the loss to the victim is seven thousand ?ve hundred dollars or more, a felony of the third degree. (It) If the writing, data, computer software, or record is kept by or belongs to a locai, state, or federal governmental entity, 5 felony of the third degree. Amended by warn time, HB 86, eff. 9/30/2011. Effective Date: 03-30-1999 . Rotated Legislative Provision: See Fifi; do, ?4 1.11 (Butleragefi? .. From: Butier, Jeff (Captain) Sent: Thursday. October 11, 2018 1:47 PM To: Theetge, Teresa Subject: Re: Meeting There is a significant amount ofdocumentation including notes, electronic files and paper copies. Plus files supplied by fiscal and ITMS that are in the bankers box know specifically what he needs or have an agenda that will help. Otherwise we will spend a lot of time just searching Forspeci?cs Sent from my iPhone On Oct 11, 2018, at 1:43 PM, Theetge, Teresa wrote: I have a call into the auditor on anothertopic. l?il clarify with him when he calls me. Thanks Sent from my iPhone On Oct 11, 2013, at 9:38 AM, Butter,1eff(Captain) wrote: Ma?am Is it ok ifi contact the auditor to clarify the agenda and what he needs in advance? Jeff From: Theetge, Teresa Sent: Thursday, October 11, 2018 9:03 AM To: Butler, Jeff (Captain) Subject: Meeting Jeff We will be meeting with the Auditor?s representative on Wednesday October 17?h at 1:00. I will send out a calendar invite. Please see his request below, ?i will have my calculations and what I came up with at that time as well to compare. in preparation for the meeting, i will probably want to take a copy of his calculations with me after the meeting to review and for support. ifthat can be requested and ready for the meeting that would be helpful.? Thanks TAT Butleri?eff (gar-tail?) Pram: Theetge. Teresa Sent: Thursday, Octaber 11, 2018 1:45 PM To: Butler. Jeff (Captain) Subject: Re: Meeting Just it is my understanding that he simply wants to know how you came up with the dollar amounts that were listed in the audit. Sent frOrn my ii?hone On Oct 11, 2018, at 9:38 AM, Butler, Jeff (Captain) wrote: Ma?am is it ok ifl contact the auditor to clarify the agenda and what he needs in advance? Jeff From: Theetge, Teresa Sent: Thursday, October 11, 2018 9:03 AM To: Butler, Jeff (Captain) Subject: Meeting Jeff 9 We will be meeting with the Auditor?s rapresentatiue on Wednesday October 171?h at 1:00. twill send out a calendar invite. Please see his renuest belaw. will have my calculations and what i came up with at that time as well to compare. In preparation for the meeting, i will probably want to take a copy of his calculations with me after the meeting to review and far support. ?that can he requested and ready for the meeting that Would be helpful? Thanks TAT . . From; Butler, Jeff (Captain) Sent: Thursday, June 14,2018 12:16 PM To: Swingiey, Dennis Subject: RE: Documents at?: From: Swingley, Dennis Sent: Thursday, June 14, 2013 9:4? AM To: Butler, Jeff (Captain) Subject: Re: Documents Theetge said she would ask'Sarah Bissinger for the records. Dennis Swingiey Sent via my cellphone On Jun 14, 2018, at 08:42, Butter, Jeff (Captain) wrote: Dennis, Did you find the inspecticns Section Audit supporting documents for the Audit or do you need copies of my copies? Jeff Captain Jeffrey L. Butlerlr. Cincinnati Police Department Training Section Commander 800 Evana Street Cincinnati, Ohio 345204 51?)?357?7560 . - .. .. . A: lButier. Jeff. .. Fro m: Botier, jeif (Ca ptain) Sent: Wednesday, June 13, 2018 10:30 AM To: Swingley, Dennis Subject: FW: Audit Binders From: Butler; Jeff (Captain) Sent: Wednesday, March 07, 2018 10:50 AM To: Bailey, David Cc: Bowling, Donna Subject: Audit Binders Colonei FYI and record keeping. i haVe removed an Audit Binder from your of?m and provided it to the Chief. The copy is for the Manager. The third copy is in your office. Barb is making copies of the binder for the Bissinger and expected records requests. Captain Jeffrey L. Butler in Cincinnati Poiice Department inspections Section Commander 310 Ezzard Charles Drive Cintinnati, Ohio 45292 513-352?3179 Bo?er, Jeff (Captain) From: Butler, Jeff (Captain) Sent: Wednesday, June 13, 2018 10:29 AM To: Dennis Subject: FW: F17 request for legal services Fyi From: Butler, Jeff (Captain) Sent: Wednesday, March 07, 2018 8:32 AM To: Isaac, Eliot Cc: Belle-y, David; {\leod'igate, Pool; Biro-ginger, Julie Subgects RE: F17requ'est for legal .ite'wices Chief, Thank you, ithe quick reaponse from the Solicitor is appreciated. 2 have. woken to Mi; and wil? meet with after she reviews the files. lhave notified Colonel Bailey and Colonel Neug?fgate thei- Ms. Bissioger will repreaent gag}; lead attorney in the matter. l'will' begin compiling and provide all the audit! process and relevant documentatiioo [current or'hfetoricall related to the mike?: claims in the notice aii?Form 17 for her review the FOP and/or presele- eouo?il. Jeff From: Isaac, Eliot Sent: Tuesday, March 06, 2018 10:44 AM To: Butler, Jeff (Captain) Subject: Fwd: request for legal services Captain Butler, Please see response from the law department; Colonel Eliot K. Isaac Police Chief Cincinnati Police Department 513-352~3536 Original message From: "Boggs Muething, Fit-14.1.21? 1245M Aggy}? om: sirens 10:33 AM To: "Isaac, Eliot? "Black, Harry" lei: Subjoct: RE: Ft 7 z'reijue'sli or 313.331? sewices- rmoummzimnt Chief Isaac: Thank you for forwarding Capt. Jeff Butler?s request for outside legal counsel. This office is com-gee with re presentin g-r't'hje their official capacity. in an EEOC investigation, there is tninimai agency int-erection, ancifno individual liability, Whiie empioyees may engage their notimeo'onsei at their-oxen :yost, therefis no {ibiigati'on on the part of the City to retain outside counsel for individual employees. Rather, as a member of the bargaining unit, Capt. Butler may obtain the services of FOP counsel, or pay for his own attorney if he thinks it is necessary. In any event, our office is not conflicted in representing the City in this matter, We will assign it to a different attorney than those involved in (Sept Butler?s federal case. Feel free to forward this email to Capt. Butler, and he can foliow up with Julie Bissinger in this of?ce regarding the EEOC matter. Thanks, Paula is or a. Pauia Boggs Muething City Solicitor Law Department 5131'352-3320 {51313524515 rates From: lsaac, Eliot Sent: Tuesday, March 05, 2018 "7:23 AM To; Sages 9'3 ?la Black, Harry many". Bitetesti?edtread-59??one? Subject: Fwd: Fl? reqoeVgt-fgf regal gamer-?es. .. .. . Communication with counsel: just received. Colonel Eliot K. isaac Police Chief Cincinnati Police Department 513?352-3536 g?jyi 3521 i it. Ho Driginal message From: ?Butler, Jeff (Captain)" Date13g'6/18 7:09 AM To: ?Isaac; Eliot" Cc: "Baiiey, David" ?Neudigate, Paui" Subject: F17 request for iegai services mu: - Chief Pursuant to my email March I will submit/hand carry the attached Form 17 {0 your office today Jeff Ca ptain Jeffrey L. Butler Jr. Cincinnati Police Department inspections Section Commander 310 Ezzard Charles Drhxe Cincinnati, Ohio 45202 513-352-3179 Grievance 243019 was ham-d by the undersigned panel on-?w-jigigi 3111171111 31111121 The suspension 11 reprimand imposed by the City 18 (circle one) sustained or reduced If reduced the penalty sha11b6__ .. . 5' CQMMENTS .. ..-. It5,11 4 1 1 11.1 -. 1.1.1. :11. ?1 1 ?gkf 1r 5 -. ?1 1121.1: ?11 umber PM: . yt/?fq ?32; {:1ng . Panel Member Name L: 11111er Sigmwm . Panel Member Name Panel Mmber Signature U1 .1 11:13" 1 'e .711; :11 "-1.113: a 1:5. At least two members must agree on sustaining, reversing, or reducing a penalty for (human 1011;: 1111811110 deadlmka an: {1111111111611 15111:151?; {1cm 131.1 1r mt: - 1:11f Ei?h? 5) ?ll} 1-1511}: (?03111313113 (3 11,6916 12.! 71"} jh?Cu' Freking Myers Fleul LLC Raedoioi'i Fre?a?i?sf Kai, tastes Myers" Geoige iv}. Faeuf, J2: stalk W. Napier? son 8.. Allis-es Katherine Daughtray fiat? . -, . .. Laura Veal a steam: Counsel .leiire?y rs gala" Chases. Me?isras. Eli lifter: titles .lo?ai P. Geneaanoa Raul rows Freking Myers A Fl Fl: d. i?xi Ci Brian P. Gillan 513-592-23 12 August 5, 2019 VIA ELECTRONIC MAIL (penis. boggsmuething@cincinnari~oh. gov) Paula Boggs Muething City Solicitor City of Cincinnati 801 Plum Street, Room 214 Cincinnati, OH 45202 Re: Captain Je?iey Butler, Jr.- Dear Paula: On July 25, 2019, 21 Peer Review Panel issued an award reversing the Reprimand issued to Capt. Butler on July 3, 2019. You are no doubt aware of the Peer Review Panel?s decision, since we understand your of?ce was intimately involved in the process which resulted in Capt. Butler?s Reprimaad. Nonetheless, I am enclosing a cepy of the Peer Review Panel?s award. The Peer Review Panel?s unanimous award can only be described as a scathing indictment of the way the underlying investigation was conducted. We are aware that on July 29, 20} 9, Lieutenant Colonel Theetge instructed Joe Wilson, Captain Neville, and Jim Olthaus to remove the Reprimand from Captain Butler?s personnel ?les and ETS records. However, we are writing to you in order to obtain your assurance and con?rmation that the underlying investigation itself will also be removed from Captain Butler?s personnel ?les and ETS records, along with the vacating of all sustained ?ndings. Moreover, I need your written con?rmation that Captain Butler has not been, and will not be, placed on a Brady list as a result of the investigation which led to the Reprimand that was reversed by the Peer Review Panel on July 25, 2019. Time is of the essence in this matter, and I therefore request a reply to this letter by 5:00 pm. (Eastern Time) on Friday, August 9, 2019. Cordially, .. if 5; Brian P. Gillan Enclosure cc: Captain Jeffrey Butler, Jr. PEER-REVIEW PANEL AWARD Grievance 24-2019 was heard by the undersigned panel on The suspension rep?mand imposed by the City 15 (circle one) sustained evers__ reduced. If reduced, the yenalty shall be COMMENTS 1155535513155551 131%? 911-115 111111111" 1311515? 51111111151111: 11?? 35111111115515- 51555,. {31251531125515.5115: ?5 {115535111511 51511151555555.5111; 5E1 1515-555551115 1155; 15151.1. 55555355155555.5555?5e5555515 . . 11:211. 1155.115553?? Wm?w 1311:1155 5151:1553151111551555551 {:angk 333 kW .. . .. P_anel?femberNa1Panel Member Name '3 Panel Member Slgnaturem {33:35- ?1 555111 we}; 155535 {5mm 131% (5151131?15511?1ef?3 ?13373 111-311;? <33: 513159195. 5{_5 131,551,115. . 1-11 55.115555; 355555555. 515115111: 51111:; 155. 51151%%1 515-5555551551 311% 55515513551 55:25 135555, 511511.555%%115e1% 391?151?1?1155 13155:. Gt5%5:%55%55515 m1- Panel Member At least two members must agree on sustaining, reversing, or reducing a penalty for it) be deadleeks are. permitted . 5 . 1-5 5. 5355555 $155555? {gag-2:5 '5 {911151111 5 51.11%; {1.515.351} 555- 1331?? 13515; :112?: ?131511;.. (i515. 5.1.. ?11 31111115155 1; 55 ?55: ?15? @5545 1" i; E?g?pa?ahglsi?l?g?ym? ?185.15, 1?1! q; 5 {:13 5131111115.. ?555?5515?$ 5 1% ?$501,525, 15;}151 1515151135 115% 33%; 55115111555151 Brian P. Gillan (0030013) Randoiph H. Freking (0009158) Trial Attorneys for Relator COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO THE STATE OF OHIO, ex rel, Case JEFFREY L. BUTLER, JR. Judge Robert P. Ruehlman Relator, MOTION FOR TEMPORARY RESTRAINING ORDER, ?vs~ PRELIMINARY INJUNCTION AND :3 PERMANENT INJUNCTION, AND THE CITY OF CINCINNATI MEMORANDUM INSUPPORT .. . 801 Plum Street I I I I I I Cincinnati, OH 45202 ?and? ELIOT ISAAC, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE OF THE CITY OF CINCINNATI City Hall 801 Plum Street Cincinnati, OH 45202 Respondents. Pursuant to Rule 65 of the Ohio Rules of Civil Procedure, Relator Capt. Jeffrey L. Butler, Jr., respectfully moves the Court to issue a temporary restraining order and preliminary injunction (made permanent upon motion) requiring Respondents to remove from Relator?s personnel ?le and ETS records the investigation and report underlying the July 3, 2019 Reprimand reversed by the Peer Review Panel on July 25, 2019, and prohibiting Respondents from placing Capt. Butler on 3 Brady List as a result of that investigation. 25 :If? This Motion is based upon the Veri?ed Complaint and Petition for a Writ of Mandamus ?led in this matter, and supported by the accompanying Memorandum in Support. submitted, Brian. P. Gillan . Brian P. Gillan (0030013) Randolph H. Freking (00091 5 8) FREKING MYERS REUL LLC 600 Vine Street, 9th Floor Cincinnati, OH 45202 PH: 513/721?1975 FX: 513/651-2570 bgilian@fmr. Zaw randy@?nr. law Attarueysfor Retator Capt. Jeffrey L. Butler, Jr. MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION. I. FACTS1 In his position as the highest ranking of?cer in the City of Cincinnati Police Department?s Inspection Section, Capt. Butler was tasked with supervising the semi-?annual Police Department audit of overtime usage. The results of the audit disclosed that the Police Department had incurred signi?cant overtime expenses, often as a result of inappropriate and illegal conduct, especially in the Police Department?s District 5, which was commanded by Capt. Bridget Bardua. The audit disclosed that the Police Department spent millions of dollars in overtime with at least 15 of?cers bringing in tens of thousands of dollars in overtime each. An inordinate amount of overtime centered in District 5, conunanded by Capt. Bardua. Capt. Bardaa herself earned $82,723 in overtime during the audit period. According to the audit, the payments are part of a broader problem involving Police Department overtime and police of?cer intentional manipulation of overtime. ?These appear to be systemic management issues,? the audit continues. ?The failure to adhere to established processes has resulted in a signi?cant and negative financial impact and places extensive ?nancial liability on the [police] department.? (Exh. A to Mandamus Petition, at 13.7.) Capt. Butler brought his concerns regarding overtime abuse directly to Capt. Bardua during the audit period. In addition, he brought those same issues directly to Respondent Chief Isaac on several occasions, including most recently on February 10, 2018. He did nothing. In Capt. Butler?s reasonable belief, the systemic abuse of overtime in District 5 headed by Capt. Bardua constituted felony theft. Under Ohio Revised Code 2921.22, Capt. Butler was These facts are all drawn from the Veri?ed Petition and Complaint for a Writ of Mandamus flied in this matter. compelled to report that abuse to law enforcement authorities. He did- so directly to Respondent Chief Isaac on numerous occasions. On previous occasions when police of?cers or civilian staff had been found to have intentionally abused the overtime system, disciplinary action had been instituted against them. On this occasion, Respondent Chief Isaac repeatedly refused to initiate any disciplinary investigative action against Capt. Bardua, or permit any other law enforcement of?cer to initiate disciplinary investigative action against Capt. Bardua or those under her command. Rather, Respondent Chief Isaac went out of his way to protect Capt. Bardua from the consequences of her abuse of the overtime system and her allowing of?cers in District 5 to abuse the overtime system. Rather that discharge his duty and pursue disciplinary action against Capt. Bardna and those under her command who have ?agrantly and illegally abused the overtime system, effectively stealing Cincinnati taxpayer monies for their personal gain, Respondent Chief Isaac has instead retaliated against Capt. Butler and other hi gh?ranking Cincinnati police of?cers who had challenged his failure to act in regard to these matters. The ouster of Executive Assistant Chief David Bailey in March 2018 following public release of. the overtime audit is just one example. In addition, Respondent Chief Isaac has effectively marginalized Capt. Butler in retaliation for his complaints about Reapondent Chief Isaac?s inappropriate relationship with Capt. Bardua and failure to act on her abuse of the overtime system; Capt. Butler? 3 role in supervising the audit; and Respondent Chief Isaac?s mistaken belief that Capt. Butler was involved in the public disclosure of the overtime audit. Effective March 18, 2018, Respondent Chief Isaac transferred Capt. Butler to the Cincinnati Police Academy, but stripped him of any substantive responsibility. .mm 5' - Largely as a result of the allegations raised by Capt. Butler, including his allegations of felony abuse of overtime by Respondent Isaac?s close personal friend and con?dant, Capt. Bridget Bardua, and those under her command, Hamilton County Prosecutor Joseph Deters irnpaneled a Grand Jury. The Grand Jury issued a Subpoena on April 27, 2018 for documents related to the February 2018 semi?annual Police Department Audit of overtime usage and Capt. Butler?s allegations regarding abuse of the overtime policy. Deters also referred the matter to Ohio Auditor Yost for investigation. During the course of Auditor Yost?s investigation, the Auditor?s investigative team requested supporting documentation for the Audit. At least one banker?s box containing numerous documents directly relevant to the Audit and to the Auditor?s investigation, and responsive to the Hamilton County Grand Jury Subpoena suddenly went missing. The fact that those documents were missing was known to Respondent Isaac and Re3pondent City of Cincinnati since at least June 13, 2018. Nonetheless, Respondents made no sincere effort to ?nd those documents. Rather, it was not until Capt. Butler was asked to meet with an investigator with the State of Ohio Auditor?s Office that this issue was addressed. Respondents? loss or destruction of these documents, and their lackadaisical attitude toward ?nding the documents, prompted Capt. Butler to ask the Acting City Manager (Patrick Duhaney) for an external administrative and/or criminal investigation on October 17, 201 8. (See Exh. B, attached to Mandamus Petition.) Rather than begin the external investigation Capt. Butler requested, Respondents instead began an internal investigation. That internal investigation was not designed to ?nd the missing documents or determine why there were missing; instead, it was designed to unfairly implicate Capt. Butler. The investigation included a ?nding that resulted in the issuance of a reprimand to Capt. Butler on July 3, 2019. Capt. Butler appealed that discipline to a Peer Review Panel and, on July 25, 2019, that Panel issued a unanimous award reversing the reprimand. (Exh. to Mandamus Petition.) That award also found numerous substantial con?icts of interest and inappropriate conduct which undermined the integrity of the investigation and its conclusions. (Id) Those con?icts are detailed below, at Section II (B). On August 5, 2019, counsel for Capt. Butler sent a letter to the City Solicitor for Respondent City of Cincinnati, asking her to con?rm that not only was the reprimand removed from Capt. Butler?s personnel ?les and ETS records, but that the underlying investigation and report itself would be removed from Capt. Butler?s personnel files and ETS records, along with the vacating of all sustained ?ndings. (Exh. to Mandamus Petition.) The letter also requested that the City Solicitor con?rm that Capt. Butler has not been, and will not be, placed on a Brady List as a result of the investigation which led to the reprimand that was reversed by the Peer Review Panel on July 25, 2019. (Id) To date, counsel for Capt. Butler has received no response through this inquiry from the City Solicitor for Respondent City of Cincinnati. 11- MARGUMENT A. Rule 65 Standard. To be entitled to preliminary injunctive relief, a moyant must Show by clear and convincing evidence that there is a substantial likelihood that he will prevail on the merits, that he will suffer irreparable injury if the injunction is not granted, that third parties will not be unjusti?ably harmed if the injunction is granted, and that the public interest will be served by the Procter cit Company v. Stoneham, (2000), 140 Oh. A.pp.3d 260, 267; Vanguard ramp. 552.51, Inc. Edwards Transfer and Storage Ca, (lO?l Dist. 1986), 109 Ohio App.3d 786, 790. B. Capt. Butler Has Satis?ed the Requirements of Rule 65. Capt. Butler has established that he meets the tests required to obtain injunctive relief under Rule 65 of the Ohio Rules of Civil Procedure. 1. Relator is likely to Succeed on the merits. Relator has established that he is likely to succeed on the merits since the Petition for Writ ofMandamas makes it clear that unless this Court compels Respondents to remove from Capt. Butler?s personnel ?les and ETS records the investigation and report underlying the reprimand which was reversed by the Peer Review Panel, the Peer Review Panel?s award is effectively meaningless. As long as the tainted, biased report remains in Capt. Butler?s personnel ?le and ETS records, it will always be potentially available for dissemination in a way that unfairly and inappropriately damages Capt. Butler. The Peer Review Panel?s award is a scathing indictment of the investigation itself. It identi?ed numerous con?icts of interest which go to the heart. of the integrity of the investigation and the report. Those con?icts include: First, direct familial relationship between the evidence of the. investigating and investigative body?. It arose because Capt. Butler?s direct supendsor, Assistant Chief Teresa Theetge, who was involved in Respondent City of Cincinnati?s overtime audit and supervised the CPD Section where the box of overtime audit~related documents that has gone missing was last seen, is the sister of Russ Neville, the Captain assigned to oversee the internal investigation which resulted in Capt. Butler?s inappropriate discipline. Second, the Peer Review Panel also identi?ed as a serious con?ict of interest the fact that ?due to an Active Captain?s Promotion List, the Lead Investigator was potentially in a position to bene?t from a sustained ?nding [of discipline against] Capt. Butler.? This con?ict of interest arose from the fact that Lt. Doug Snyder, who led the investigation, is next on the Promotion Eligibility List for Captain. Third, the Peer Review Panel found as a serious con?ict of interest the fact that ?[w]hile being implicated in the investigation, the Police Chief attended discussions related to this investigation prior to the conclusion of the investigation.? This con?ict of interest is so obvious and so damning that it needs no further comment. The Peer Review Panel concluded: ?The Panel believes that because of these con?icts identi?ed, one could consider the investigation not fair or objective, which further leads to the veracity of the sustained ?nding.? Based upon all of the foregoing, there is no question that Relator is likely to succeed on the merits, and thus has established the ?rst test under Rule 65. 2. Bolster-will .su?'er- irreparable-inimI not granted. Ohio courts de?ne irreparable injury as one Where ?it is reasonably certain that the ?moving party? will suffer immeasurable damages.? ER. Moore Co. v. Ochz'ltree, 16 Oh. Misc. 45 (1968). That is certainly true here. Respondents can only remedy Relator?s irreparable injuries if they are required by this Court to remove from Capt. Butler?s personnel ?les and ETS records the underlying investigation and resulting report which led to the inappropriate (and now reversed) discipline, along with the vacating of all sustained ?ndings, and continuation that Capt. Butler has not been and will not be placed on a Brady List as a result of the tainted investigation. 3. No third parties. will beharmed by (if-the reauest for relief. No third parties will be harmed by the granting of the request for relief in this case, since no third parties have rights at stake in the legal proceedings between Relator and Respondents. 4. The publicinterest will not be disserved by issuing the request for relief. The courts ?are concerned primarily that the issuance of the injunction will not disserve (as opposed to just serve) the public interest.? Escape Enterprises, v. Gosh Enterprises, Inc, (2005) 2005 Oh. 2637, 2005 Oh. App. LEXIS 2466 (quoting Gateway Eastern Ry. Co. Terminal RR Assoc. St. Louis, 35 F.3d 1134, 1139 N3 (7H1 Cir. 1994)). Here, there is no public interest that will be disserved by the granting of the requested injunctive relief. CONCLUSION For all of the reasons stated herein, Relator Capt. Jeffrey L. Butler, Jr. requests this Court issue a temporary restraining order and preliminaryr injunction (made pennanent upon Motion) requiring Respondents to remove from Relator?s personnel ?le and ETS records the investigation and report underlying the July 3, 2019 Reprimand reversed by the Peer Review Panel on July 25, 2019, and prohibiting ReSpondents from placing Capt. Butler on a Brady List as a result of that investigation. I Respeet??ly submitted, Brian P. Gillan .. Brian P. Gillan (0030013) Randolph H. Freking (000.9158) FREKING MYERS REUL LLC 600 Vine Street, 9th Floor Cincinnati, OH 45202 PH: 51327214975 FX: 513/651?2570 bgiilan@?nr. law randy@?nr. law Attorneys for Relator Capt. Jeffrey-L. Butler, Jr. CERTIFICATE OF SERVICE . I hereby certify that on August 14, 2019, a cepy of the foregoing was sent via regular US, Mail and electronic mail, as follows: Paula Boggs Muething, City Solicitor Email: paula. boggsmuething?cincinnati-oh. gov City of Cincinnati Solicitor?s Of?ce 801 Plum Street, Suite 214 Cincinnati, OH 45202 .fs/Brian P. Gillan 10