INVESTIGATION REPORT TO: Donald L. Crain, Esq. Frost Brown Todd LLC Law Director, West Chester Township FROM: Douglas E. Duckett, Esq. Duckett Law Firm, LLC SUBJECT: Investigation oflssues in West Chester Police Depattment DATE: June 30, 2020 I. Douglas E. Duckett Digitally signed by Douglas ,' E. Duckett Date: 2020.07.01 09:09:16 ·04'00' SCOPE OF ENGAGEMENT AND FACTUAL BACKGROUND. A. My Role in the Investigation. I am an attorney in Cincinnati and the owner and principal of Duckett Law Firm, LLC, My firm offers legal representation and training services for employment and labor relations issues for public- and private-sector employers in Ohio and throughout the United States, including conducting internal investigations when needed. Through your role as Township Law Director, Frost Brown Todd retained my firm to investigate issues that have arisen in the West Chester Police Depattment involving relations among the command staff, the conduct of the two police captains, and allegations of retaliation that the captains have raised individually and through their attorney against the Police Chief and the Assistant Chief. As Law Director, you will be responsible for advising the Board of Trustees on what action, if any, should be taken, as well as representing the Township in any subsequent hearings or legal proceedings, including defending against possible lawsuits claiming retaliation for protected conduct. My investigation and this report are thus intended to assist you in advising Township officials on the legal and human resources issues presented in this matter and what steps to take regarding the conclusions contained in the report. B. The Key Employees. Five senior commanders of the West Chester Police Depatiment make up what is known as the Command Staff, though sometimes meetings ofthis group are expanded to included lieutenants and occasionally one or more of the crime analysts. There are also supp01t staff who work with them, but these five people are the key leaders of the organization. 1. Chief Joel M. Herzog. Col. Joel Herzog was appointed as Chief of the West Chester Police Depattment in December 2015. He has served in the department for most of his adult life; he was first appointed as a patrol officer in February I 991. From there, he worked his way through the ranks, working in the canine unit slatting in 1993, promoted to sergeant in 1995, and he was promoted to lieutenant, assigned to the Chiefs office, in 1999. Under a new chief, he was promoted to captain in 2001. After a drawnout selection process, he was appointed as Police Chief without ever serving as an Assistant Chief, and he has continued in that role since. 2. Assistant Chief Brian L. Rebholz. Lt. Col. Brian Rebholz was appointed as Assistant Chief in December 2016, during Col. Herzog's tenure as Police Chief. He became a patrol officer after leaving the United States Air Force in 1992. After a short stint as a sergeant, he was promoted to lieutenant in 2007 and then to captain in 2009, where he served until his promotion as Assistant Chief. 3. Captain Jamie L. Hensley. Capt. Jamie Hensley first came to the West Chester Police Depattment as a patrol officer in 1999 after service in the militmy and a brief stint at the Butler County Sheriffs Office. He served in several roles, including as a canine and SWAT officer, as well as a detective. He was promoted to sergeant in 2006, at first working in patrol but then for six and a half years he served in the Integrity and Development (!&D) section, which conducts internal affairs investigations and also oversees training in the department. He was promoted to lieutenant in late November 2015, moving back to uniformed patrol, and he then was selected for promotion to Captain by Chief Herzog 1 just over a year later in December 2016. On Wednesday, June 25, 2020, Capt. Hensley resigned and retired without notice, but this report was largely prepared given the state of the allegations and facts as I had determined them prior to his resignation. 2 4. Captain Joseph S. Gutman. Capt. Joe Gutman began his service as a patrol officer for West Chester Township in 1995. He also has served in several roles within the Police Department, including working as a canine and SWAT officer and as a defensive tactics instructor. He was promoted to sergeant in 2005, working in road patrol, canine, and as a SWAT supervisor. He was promoted to lieutenant in June 20 I 0, and as lieutenant, he oversaw a squad on road patrol as well as serving for a time as SWAT commander and head of Criminal Investigations. He was promoted as captain in late September 2016, shortly before Capt. Hensley, again on the recommendation of Chief Herzog. The two captains oversee two of the three "bureaus" within the Police Depattment, specifically the Patrol Bureau and the Support Bureau, and those responsibilities are rotated from time to time. These four career officers know each other well, for the Chief, Assistant Chief, and the two captains have worked together for almost their entire careers with West Chester Township. 5. 1 The Administrative Bureau Chief Courtney R. Lovell. West Chester Township Board of Trustees is sole appointing authority for all Township employees, including for promotions, but of course often acts on the recommendations of department heads such as the Police Chief. 2 Before Capt. Hensley's resignation, I had verbally briefed the Board of Trustees and the attorney for the two captains, Elizabeth S. Tuck, Esq., on my conclusions in the investigation. Accordingly, both the Township leadership and the captains were aware of my broad conclusions prior to Capt. Hensley's resignation and retirement. - 2- Comtney Lovell has served as Administrative Bureau Commander, heading the third bureau in the Police Department, since her promotion in late 2017. Before that, she served as the to the Police Chief, which she began in October 20 I 0 under then-Chief Eric Niehaus. Ms. Lovell directly supervises the Chief's the for accounting, as well as overseeing the Records Section, which has its own supervisor Jeanni Quinn. All employees whom Ms. Lovell supervises are civilians and outside of the bargaining unit, as is she, but she is considered part of the core command staff as head of civilian suppmt operations. 6. Justine M. Bickley. When Ms. Lovell was promoted, the Chief needed a new to replace her, and after a selection process, he recommended, and the Board of Trustees appointed Justine Bickley 3 to this position in March 2018. This was Ms. Bickley's first position with West Chester Township; immediately prior to this job, she was not in the workforce, but she had previously taught business classes for sixth through eighth grades in and had also worked at both a law office and at Bank. She has a master's degree in education. While not part of the command team per se, she works in the Chief's office in proximity to all of them, and some of the initial issues that gave rise to the controversies in question swirled around her appointment and early service-unbeknownst to her at the time and, as I find, through no fault of her own. C. The Sequence of Events. Justine Bickley was not in any way the subject of this investigation, but the key events in question stmted not long after she was hired as the Chief's On Tuesday, May 15, 2015, the West Chester Police Depmtment and the community held an evening observance for Peace Officers Memorial Day, an annual remembrance oflaw enforcement officers who have died or been disabled in the line of duty. Ms. Bickley helped work the event, and it was widely attended by department officers and their family members. At that event, Capt. Joe Gutman and his wife saw Ms. Bickley and acknowledged her, and he reported that she winked at him in return. Both Capt. Gutman and his wife took exception to this, seeing it as flittatious, and spoke to Ms. Bickley's supervisor Courtney Lovell, with whom she had been friendly socially, saying that she was not happy about the incident. Ms. Lovell and Ms. Gutman later exchanged text messages, and Ms. Lovell told her that others had mentioned the winking and that the command staff would discuss the issue and later talk with Ms. Bickley. When Ms. Lovell raised the issue with Chief Herzog, however, he recognized a potential human resources and even discriminatory harassment issue, and he prepared a memorandum dated May 3 Justine Bickley is a pseudonym. . , I have used a pseudonym in this report, and the public records that have been released have been redacted to shield her name for her safety. - 3- 21,2018, to the Township's then-Human Resources Manager Joan Tumblison 4 documenting what he had learned. In that memorandum, the Chief described the winking issue, stated that he had seen Ms. Bickley wink at others and that he thought that she was not conscious of doing so, but Capt. Gutman disagreed, saying that "she knows she does so" and that "an unmarried woman should never wink at a married man" because of the possible perception of something flirtatious. In that meeting, Capt. Jamie Hensley spoke up as well, saying that some of Ms. Bickley's behavior made him uncomfmtable coming to work, including the fact that Ms. Bickley wore one skirt in patticular that they both saw as too shott, and that both captains disapproved of her wearing high heels in an office environment. Both captains were also uncomfottable with Ms. Bickley staying at work past the normal quitting time of 4:30 p.m. Neither Chief Herzog nor Courtney Lovell, her two supervisors, had ever seen Ms. Bickley dress inappropriately or in any way that violated the Township's employee dress code. Of note, the Township dress code explicitly provides that women can wear "dress heels" in the office, a fact that neither captain seemed to know. The Chief also referred in the memorandum to a trip that he and Capt. Hensley had taken to Columbus, where Capt. Hensley referred to unspecified issues in Ms. Bickley's background that he could not confirm and would not elaborate on. He also related three incidents that had occurred that caused him to be uncomfortable. The first was just after the end of the business day when he had changed out of his uniform and was leaving when Ms. Bickley asked him about how a Township Incident Report would rank in a new priority system that the Chief was developing with her; Capt. Hensley thought that this could have waited until the next day, and he was concerned that "she had other motives to talk with him." The second incident involved her offer on a day when he was busy to pick him up lunch while she was out, an offer that made him "uncomfortable." The third incident involved her bringing him a paper in the hallway outside his door after he had again changed out of uniform to head home. On May 24, 2018, Capt. Gutman sent Chief Herzog and Ms. Tumblison a memorandum elaborating his concerns in response to the Chiefs earlier memo to Ms. Tumblison. Capt. Gutman clarified that he does not know why Ms. Bickley was winking at him but that he was concerned about had perceptions. He also disputed the Chiefs reference to a Facebook post that made of a woman with her shitt unbuttoned more than halfway down her chest winking in a very lascivious manner, calling the post "ambiguous." Capt. Gutman also noted the issue of Ms. Bickley staying late at the office, saying "I would not want to make it a habit of walking out late in the day with an employee of the opposite sex, well after hours," and that "it would be a best practice that Ms. Bickley leave at here [sic] assigned time." The Chief later prepared an addendum noting that both Capt. Hensley and Capt. Gutman wanted the issue to be handled in an informal manner rather than as a formal complaint to Human Resources. In the midst of this, on the advice of Ms. Tumblison, who is also an attorney, the depattment's discriminatory harassment policy was modified to eliminate the requirement that the Township provide a detailed notification to complainants on what action was taken in response to a complaint. Both captains would later cite this timing as evidence of the Chiefs desire to "protect" Ms. Bickley. Ms. Tumblison said that in her discussions with the Chief and Ms. Lovell about these issues, she thought that the captains' complaints were "ridiculous in that there were nothing in their complaint that we thought we could 4 At the time I interviewed her, Ms. Tumblison no longer worked for West Chester Township, and she had later married and taken the name Joan M. Germann. Ms. Germann left West Chester Township in August 2019. - 4- move on. Then it looked like the wives were driving it." On that basis, no action was taken, and the Chief issued a brief notice to both captains that the issue had been reviewed and resolved. According to the captains, both Chief Herzog and Assistant Chief Rebholz thereafter began to treat them in a very different way, which they would complain in 2020 was retaliatmy because they had objected to Ms. Bickley's "misconduct." 5 Meanwhile, both the Chief and the Assistant Chief grew increasingly frustrated by how they saw the two captains treating Ms. Bickley--essentially freezing her out and largely refusing to engage with her at all other than the barest minimum of unavoidable, business conversations. Ms. Bickley, while having no idea why this was happening, cetiainly perceived the "cold shoulder"; she saw that "they didn't like her" and she was hurt by that. Chief Herzog and Assistant Chief Rebholz also perceived that both captains were withdrawing from normal office interactions overall-no longer joining the Chief as frequently for Friday lunches, eating lunch alone in their offices with the door closed rather than joining Lt. Col. Rebholz in the break area, and avoiding the once-frequent discussions in the "T" hallway intersection right outside Capt. Gutman's office, which is directly across from Ms. Bickley's work area and just around the corner from Chief Herzog's office. The command staff and Ms. Bickley all work in close proximity, so the colder and more withdrawn atmosphere would be very evident to all. While these kinds of interactions are not the kind of core responsibilities that would be listed on a position description, they are essential to communication and understanding, and the sharp change in climate contributed to a growing sense of dysfunction and alienation among the command staff. In turn, Capt. Hensley and Capt. Gutman complain that the Chief no longer talked to them in the way he used to, and they feel left out of discussions and meetings of which they were once an integral pati. This dynamic presents a soti of"chicken or the egg" dilemma-the distance and withdrawal is seen by all, but the two sides dispute how it began or what caused it. Chief Herzog and Lt. Col. Rebholz prepared Capt. Hensley's 2018-19 evaluation in April 2019, and Lt. Col. Rebholz prepared Capt. Gutman's at roughly the same time. Both were presented to the captains in June 20 19, and both captains were upset at ratings in several areas that were less than optimal. The evaluations rate several dimensions on a scale of I (needs improvement) to 5 (exceptional). A rating of 3 means "meets expectations" and is, thus, a positive rating. 6 Capt. Hensley's rating averaged 3.92 on that 5-point scale, but his ratings in the categories of Conflict Management and Collaborative Leadership/Team Building were 2 (Below Expectations). For Capt. 5 I will address this at greater length below, but it bears stating now that I conclude that, in fact, Ms. Bickley did not violate any Township policy, that she did nothing wrong at all, and that the captains' subjective discomfort around her, while perhaps genuine, would not be seen as reasonable by "a reasonable person" in their position, the objective standard that must govern any such claims under federal and state employment discrimination and harassment law. In fact, I find their objections to Ms. Bickley's innocuous conduct and attempts to be helpful and friendly in the office as rife with unwarranted and even sexist assumptions, expectations, and innuendo. 6 In my thirty years of human resources management in local government, I found that "grade inflation" has made its way from education into the workplace, and employees too often expect to receive "exceptional" ratings while seeing a rating of "meets expectations'' as disappointing, which fundamentally misconstrues (and distorts) the process of measuring and documenting employee performance. One should expect that most employees will fall in the "meets expectations" category, and those who do are not showing any performance problems. Any honest model showing the distribution of employee performance will rate most employees (and students) as "average''-that is an unavoidable mathematical and statistical fact. Yet too many performance evaluation systems eschew that honesty and skew ratings at the upper ends of the rating scale. - 5- Gutman, his overall average rating was 3.4, and he received ratings below 3 in a subcategory under Workforce Development, Accountability, Political Awareness, and Conflict Management. Comments in both evaluations reflected that part of the issue was that both captains had continued to display stiff formality and refused to engage freely in office conversations, particularly when it came to avoiding any routine interactions with Ms. Bickley. Capt. Gutman's evaluation also reflected other issues regarding his perceived inflexibility with his subordinates. Both captains were distressed by their evaluations, and Capt. Gutman submitted a rebuttal, which was filed with the evaluation. Later, both would claim that the evaluations were retaliatory because they had raised concerns about Justine Bickley's conduct. Also in February 2019, an anonymous caller, who called herself "Michelle," called into the Township Administration offices to repmi that she had a picture of Chief Herzog dressed in blackface and was going to share it with the media. Township Administrator Larry D. Burks took the call and later spoke with Chief Herzog, who adamantly denied ever wearing an outfit like that, though he did later show Mr. Burks a picture of him and his wife dressed as a cartoon burglar, wearing a stocking cap, a black mask, and a black-and-white, horizontally striped, black-and-white shirt. Toward the end of the workday, Chief Herzog mentioned this call to Capt. Hensley, who said nothing at the time. The next day (he believes), Capt. Hensley asked to meet with Chief Herzog to tell him that he had seen this picture, allegedly posted on Facebook by the Chiefs wife in October 2015. Capt. Hensley added details: An Afro wig and a "Hands Up, Don't Shoot" tee-shiti. Chief Herzog continued to deny that he ever dressed this way, and nothing fmiher happened. Things remained in this tense but relatively quiet state until January 2020. Sgt. Paul Brent Lovell had scored highly in an examination process for a lieutenant position, 7 and the Chief also appointed him to a position as one of two community affairs sergeants. The Chief has on occasion been out socially with Brent and Cominey Lovell, and Sgt. Lovell has at times been overly familiar with the Chief, referring to him as "Joel" in conversations with other officers. Some officers grumbled that Sgt. Lovell re-tweeted ChiefHerzog's posts on Twitter with great frequency, and for these reasons, some in the department see favoritism in how the Chief treats him, a perception these two captains share. Of note, the Chief directed Capt. Gutman to write up Sgt. Lovell with a "PSL" 8 for his misuse of Twitter in an on-line quarrel with fellow officers-though he did ask Capt. Gutman to "go easy because his heart was in the right place." Capt. Gutman said that he issued the PSL without any changes from the Chief. On Saturday, January 18, 2020, Capt. Hensley's wife, posted on Facebook "Today's HS vocabulary word" with a definition of "cronyism," which "includes appointing 'cronies' to positions of authority, regardless of their qualifications." Lt. Mike Quinn approached posted; is that about work?", and he said that Officer Capt. Hensley and asked him, "That post Rob Obermeyer, the union president, had asked him about the post. Capt. Hensley steadfastly 7 Capt. Hensley and Capt. Gutman participated in the interview panels that generated an examination score, and they had exactly the same weight in the overall ratings as ChiefHerzog and Assistant Chief Rebholz. 8 This stands for "police service log," a formal notation in an employee's personnel file, and a PSL can be either a reprimand or a commendation. - 6- denied any connection between the post and work-noting repeatedly that there was no mention of the West Chester Police Depmiment-but others in the depatiment speculated that post reflected Capt. Hensley's own feelings about Sgt. Lovell's progress in the department. On January 28, Chief Herzog, Assistant Chief Rebholz, and the Township's relatively new Human Resources Manager Tanya N. Charles, met with Capt. Hensley to review a written letter from Ms. Charles to Capt. Hensley "to document the expectations for your performance as Captain .... " There was no written reference to the issues involving the captains' treatment of Ms. Bickley, but Capt. Hensley was told that he needed to "[p]romote a positive team environment through the department" as well as "[u]phold a positive image of the depattment and yourself inside and outside of work." Capt. Hensley was also directed to "[i]nform your superiors of pmticipation in any outside function where you may be perceived as a representative of the West Chester Police Depattment." This was a reference to Capt. Hensley's attendance at the "Men of Honor" event in Cincinnati in November 2019, a black-tie event recognizing African American men who have achieved distinction in professional and business fields. He had gone as the guest of Tommy Loveberry, a friend who is also president of the West Chester Citizen Police Academy Alumni Association. While there, Capt. Hensley met Cincinnati Police Chief Eliot Isaac, who later mentioned to Chief Herzog that "I met your captain." Chief Herzog was irritated that Capt. Hensley had not mentioned to him that he was attending this event, a positive thing for the department, and he was embarrassed to learn about it only from a fellow police chief of the region's largest police department. The "HR meeting," as most participants would later call it, started with a discussion of the "cronyism" post, and it did not go well. Capt. Hensley, describing himself as feeling "ambushed," grew very angry, repeatedly interrupting the Chief and Ms. Charles, and saying, "This is ridiculous." Regarding post, Capt. Hensley said, "I'm not aware of when she posted it or anything else about it." After discussion of his treatment of Justine Bickley, Capt. Hensley reiterated that he "knows nothing about that post, never heard of such idiocy." At that point, Chief Herzog grew quite angry at Capt. Hensley for "calling him an idiot." Later, the discussion was calmer and more respectful, and Capt. Hensley even apologized for his tone. At the close of the meeting, Col. Herzog and Lt. Col. Rebholz talked about how "that started badly but was better by the end." Early in the meeting, Capt. Hensley requested permission to record the meeting on his phone, which was granted. A text message came in during the meeting, interrupting the recording, so the meeting was recorded in two segments, with an unrecorded break. After Capt. Hensley reiterated that he is not comfottable with Ms. Bickley and that "I will not have personal interactions with her," there was an extended discussion about how both the Chief and Assistant Chief saw Capt. Hensley as conspicuously treating Ms. Bickley differently. After the interview ended, the Chief and Assistant Chief decided they needed to talk with Capt. Gutman about the issue, and they were stattled when Capt. Gutman said that he knew about "cronyism" post because he had discussed the issue with both Lt. Mike Quinn and Capt. Hensley. Feeling that Capt. Hensley had lied to them when he said he "knew nothing" about his wife's post, they called Capt. Hensley back in the next day and told him that they would need a copy of the recording. Capt. Hensley replied that "I don't have it, I deleted it." The Chief then asked, "You - 7- deleted it?" and Capt. Hensley replied, "Yes." Chief Herzog told him that he would need his cell phone so that Officer Mike Sly, the department's expert on retrieving data from electronic devices, could try to recover the recording. Capt. Hensley immediately replied, "! will get you a copy; you are not getting my phone." He provided a copy of the recording to the Chieflater that day or the next, explaining in our interview that he had in fact deleted the recording from his phone after emailing the recording to himself, and that he retrieved the copy from his e-mail. The Chief and Assistant Chief were again stunned by what they saw as Capt. Hensley's second lie in their conversations: his claim that he had "deleted" the recording without disclosing that he actually had it, just not on his cell phone. On that basis, Chief Herzog directed the internal affairs section, called Integrity and Development or l&D at the West Chester Police Department, to investigate the allegation of dishonesty. Lt. Paul Haering, one of the longest-serving officers in the department, conducted the investigation, assisted by Sgt. Mike Weingatiner, who is also assigned to !&D. They interviewed Lt. Mike Quinn, the Chief, the Assistant Chief, and Tanya Charles before interviewing both Capt. Hensley and Capt. Gutman. Of note, Lt. Haering and his colleagues in l&D knew absolutely nothing of the "back story"-the "winking incident," the complaints about Justine Bickley's alleged "misconduct," or the resulting tension and conflict among the command staff. In fact, Lt. Haering was totally startled by the allegation that Ms. Bickley dressed in an inappropriate or provocative manner: in his role, he would be in their work area to see the Chief or Assistant Chief several times each week, and "my reaction was 'what are they talking about?'" He was also startled by the Jamie Hensley he heard when he listened to the recording of the HR meeting-very argumentative and not in control of his demeanor, even insubordinate toward the Chief. 9 The l&D interview with Capt. Hensley was in two stages, because Capt. Hensley asked to return to speak to the team a second time, mainly to add his extensive allegations about retaliation from the Chief and Assistant Chief. Lt. Haering and Sgt. Weingartner also interviewed Capt. Gutman as a fact-witness. Lt. Haering was preparing his repmi on the investigation to submit to Chief Herzog when the Township administration asked him to pause the repmi pending my investigation. The report was near completion and could have been submitted promptly if and when Lt. Haering were directed to do so. 10 In his interview, Lt. Haering stressed that he and his unit were able to conduct the internal investigation and shape their conclusions free of any interference or influence from either the Chief or Lt. Col. Rebholz, who is Lt. Haering's immediate supervisor. On February 24, 2020, Capt. Hensley submitted a 22-page rebuttal to the letter that he had received from Human Resources in a letter to Township Administrator Larry Burks. In the letter, Capt. Hensley detailed at length allegations of retaliation following his complaints about Justine Bickley. Not long after that, Capt. Joe Gutman also submitted a 15-page letter to Mr. Burks on March II, 2020, setting out his own allegations of "retaliation and inappropriate workplace conduct." While both captains and their attorney stressed throughout our interviews that the issues involving Ms. Bickley's conduct were "ancient history" and they had had no issues with her dress or conduct for 9 As stated above, Lt. Haering is a very long-term employee at the West Chester Police Department, with 35 years of total service. He trained both Chief Herzog and Assistant Chief Rebholz, and he knew both Capt. Hensley and Capt. Gutman when both were police officers and he was a sergeant and then lieutenant. He thus knows these men very well. 10 Capt. Hensley's sudden resignation on June 23, 2020, obviates the need to submit that report, unless the Township administration directs otherwise to document what happened. - 8- well over a year, both spent much time in their complaint letters detailing those accusations of her alleged "inappropriate conduct" to the Township Administrator. Late in 2019, the Township had secured the services of an organizational psychologist by the name of Henry J. Cohen, Ed. D., who worked with the command staff as well as Justine Bickley and Jan Heimpold, who was then a secretary in the Chiefs office but later retired. Dr. Cohen facilitated group discussions designed to improve the interpersonal and workplace dynamic, and he also conducted individual interviews with each the participant as well. Dr. Cohen asked each of them to complete a survey on communications issues within the work team, and he planned to reconvene the group to review the survey results and then work on further teambuilding. When the formal complaints and accusations were submitted in late February and early March, however, the Township administration and the Law Director decided that there needed to be a more formal investigation of both these allegations and the underlying issues and dynamics among the command staff. In light of that coming investigation, they also decided that any fmther team building work would have to await factual determinations and possible steps in response. My charge from the Township, then, was to look into what had happened, stmting with the issues arising after Ms. Bickley's hire, the captains' allegations of retaliation and misconduct on the pmt of Chief Herzog, and the overall dysfunction within the command staff of the Police Depattment. With that as my focus, I began my investigation. II. THE INVESTIGATION AND ISSUES PRESENTED. This investigation commenced on March 19, 2020, when I met with Township Administrator Larry Burks, Assistant Administrator Lisa Brown, and Donald L. Crain, Esq., the Township Law Director, to review the background of this case. Ms. Brown also provided me a binder of documents, including Capt. Hensley's and Capt. Gutman's retaliation complaints, their attorney's letter alleging retaliation, their two most recent performance evaluations, copies of some of the Facebook posts by the captains' wives, and other documents relating to the issues. 11 At the meeting, we discussed a list of possible witnesses to interview, a rough schedule for the interviews, and we also discussed whether we would offer use immunity under Garrity v. New Jerseyl 2 to either of the captains to eliminate any issue of possible self-incrimination under the Fifth Amendment. My investigatoty interviews proceeded as follows: • • April 16, 2020: Lisa D. Brown. April21-22, 2020: Township Administrator Larry D. Burks. 11 Elizabeth Tuck, the captains' attorney, also e-rnailed me a number of documents later, including the captains' personnel files, which were very positive overall and free of any past disciplinaty actions or notations. 12 In Garrity v. New Jersey, 385 U.S. 493 (1967), the US Supreme Court held that public employers could only compel an employee-witness to answer questions that might incriminate him or her under criminal law if the employee was assured that nothing said in the interview could be used against the employee in any subsequent criminal investigation or proceeding (though it could be used in later administrative or disciplinary proceedings). To be clear, there was no reason to believe that any criminal issue was at all present in this investigation, and that remains true at its conclusion; the Garrity notice was issued simply to remove any possible question about that. - 9- • • • • • • • • • • • • April23 and 27, 2020: Lt. Paul E. Haering. April 23, 2020: Joan M. Germann, Esq. (former Human Resources Manager, and also formerly known as Joan Tumblison during part of her employment). April 24, 2020: Human Resources Manager Tonya N. Charles April 28, 2020: Henry J. Cohen, Ed.D., organizational psychologist, and Janelee (Jan) Heimpold, former Police Department Secretary. May 4, 2020: Cominey R. Lovell. May 5, 2020: Justine M. Bickley. May 8 and II, 2020: Lt. Col. Brian L. Rebholz, Assistant Chief. May 20-21,2020: Capt. Jamie L. Hensley. May 27-28, 2020: Capt. JosephS. Gutman. June 2, 2020: Supplemental telephone interview of Assistant Chief Rebholz. June 3-4, 2020: Police Chief Joel M. Herzog, including a site visit to Police Department command staff office area. June 9, 2020: Telephone interview of Robert Reese, retired police lieutenant. The conflict among members of the command staff has festered for more than two years, born out of the initial allegations that the captains made about Justine Bickley's hiring and conduct, the Chiefs and Assistant Chiefs reactions to those claims, and their perception (shared by Ms. Lovell and Ms. Bickley herself) that they shunned her at work, as well as the captains' perceptions that their superiors were retaliating against them for raising those concerns. The facts uncovered in my administrative investigation present six, key issues for consideration in this report, as follows: A. Did the allegations that Capts. Hensley and Gutman made about Justine Bickleyher hiring and her dress and conduct in the office-have any reasonable basis, and if not, how should the Township view those claims? B. Has either Chief Herzog or Assistant Chief Rebholz retaliated against Capt. Hensley or Capt. Gutman for making their allegations about what they see as inappropriate conduct? C. Has Chief Herzog made discriminatory comments of a sexual, racial/ethnic, religious, or other, inappropriate nature at work or while with subordinate employees, and if he has made inappropriate comments, what response is warranted? As pati of this issue, did Chief Herzog dress for Halloween in October 2015 in blackface and Afro-style wig, wearing a shiti mocking the Black Lives Matter movement in the wake of controversial police killings of African American men? D. Should the Township take further actions to document expectations in the wake of Chief Herzog's involvement in the aftermath of the arrest of his friend Jeff Couch, and were Capt. Gutman's allegations about the content of text messages accurate? E. Did Chief Herzog manipulate the content of personnel files of employees under consideration for other positions in a way that represents improper handling of public records? - 10- F. What are the appropriate next steps for the Township to take in response to these findings to respond to misconduct or change a dysfunctional leadership dynamic? I will first offer an executive summary in which I will briefly summarize my main conclusions on each of the issues raised. In the body of this report, I will analyze in far more detail what I learned during the investigation on each issue. I will also offer my conclusions on what has happened and my recommendations whether those conclusions warrant consideration of further action, though any decision on whether to impose discipline and to what degree lies, of course, with West Chester Township alone. III. EXECUTIVE SUMMARY. A. Did the allegations that Capts. Hensley and Gutman made about Justine Bickley-her hiring and her dress and conduct in the office--have any reasonable basis, and if not, how should the Township view those claims? The shmi answer to this question is: absolutely not. Justine Bickley has been a good employee, hired following a series of interviews in which multiple people took part. The Chief requested that she be at least interviewed as a favor to a colleague and friend, but Ms. Bickley earned the job. Despite the captains' baseless insinuations that the Chief and Ms. Bickley had some kind of prior connection or that they knew of something negative in her background, neither is true. No one other than Capts. Hensley and Gutman ever claimed to see Ms. Bickley wear clothing that violated the Township dress code or that was inappropriate in an office environment. The captains' expectations of how women should dress in a professional, business environment are antiquated and even sexist to some degree. Both Capt. Hensley and Capt. Gutman allege comments or actions by Ms. Bickley that "made them uncomfortable" and that they saw as suggestive and inappropriate from a female co-worker. It started with Ms. Bickley winking at Capt. Gutman at a Police Memorial event in May 2018, with his wife standing near him. It turns out that Ms. Bickley winks widely at men and women alike, and there was no reasonable basis to see that as flirtatious. Each of the examples they cite falls so shmi of the legal threshold (offensive to a reasonable person) as to be on their face frivolous and even ridiculous. Only one comment-to Capt. Hensley-had any sexual aspect at all, and that was miniscule: Ms. Bickley's query whether the captain or his wife (who home-schooled their children) had any resources on sex education that might help her, as a then-single mother, with her 12-yearold son. The incidents in question formed no basis for the different and cold treatment to which they have subjected Ms. Bickley for two years. What the captains have done to Justine Bickley is wrong, as a matter of fact and decent human resources management, and they have done her a deep, moral injustice. B. Has either Chief Herzog or Assistant Chief Rebholz retaliated against Capt. Hensley or Capt. Gutman for making their allegations about what they see as inappropriate conduct? - 11 - Capt. Hensley and Capt. Gutman cite a wide array of policy decisions and changed ways of doing business that they see as retaliatory. Both make the case, with evident emotion, that their relationship with both ChiefHerzog and eventually Assistant Chief Rebholz took a sharply negative turn and continued to spiral downward "after we complained about Justine Bickley." It is obvious that all five members of the command staff are deeply emotionally wounded and that trust among them has been badly damaged if not shattered. But I do not find the operational or policy changes they cite to be retaliatory in nature. I do find that if the work climate has any hope of being restored to functionality, those command staff members who remain must work far harder at rebuilding open, day-to-day communication. Both captains cite less-than-optimal comments and ratings in their 2019 evaluations as retaliatory. I find no evidence to support that. No one is entitled to an evaluation that is purely positive, with nothing but praise. Both captains were continuing to treat Justine Bickley in a different and less positive way, and it was appropriate to reflect that they had not changed that behavior despite repeated requests and directives from their superiors. The remarks about Capt. Gutman's more rigid supervision style echo comments that I heard from other witnesses I interviewed outside the command staff. Evaluations should reflect needed improvement as well as praise, and too often do not. Capt. Hensley also complains that the letter that Tanya Charles issued to him in the January 28 meeting, setting fmih expectations for performance and improvement, was retaliatory. Documenting the need for improved performance where warranted is not retaliation: it is effective management. Finally, the internal investigation launched in the Integrity and Development section following the January 28 meeting is not retaliatory-it resulted from the fact that, in two respects, Capt. Hensley may have lied to his superiors in that meeting. For any police officer, let alone a captain, to lie to a superior is not only a potentially dischargeable offense but may make that officer functionally unable to testify in cowi under the Brady!Giglio doctrine. The Police Department had no responsible choice but to investigate, and Lt. Paul Haering of the I&D section conducted a professional and competent investigation, the conclusions of which he was prepared to share. C. Has Chief Herzog made discriminatory comments of a sexual, racial/ethnic, religious, or other, inappropriate nature at work or while with snbordinate employees, and if he has made inappropriate comments, what response is warranted? As part of this issue, did Chief Herzog dress for Halloween in October 2015 in blackface and Afro-style wig, wearing a shirt mocking the Black Lives Matter movement in the wake of controversial police killings of African American men? In their written complaints, both Capt. Hensley and Capt. Gutman allege that Chief Herzog has made remarks about the appearance of women, including talking about Justine Bickley's attractiveness, sexual comments about other women, and offensive, joking comments about African-Americans or other ethnic or religious groups. None of the allegations involved the Chief using slurs or overtly racist or discriminatory language. Both captains agree that after they told Chief Herzog that such comments offend them, he desisted from making them. - 12- Chief Herzog, by his own admission, has made careless and less-than-appropriate remarks in conversations with people he trusts and feels comfortable with, including these two captains. At times, he has commented on the attractiveness of women, including Ms. Bickley, and he has related stories that include comments that could be offensive. I conclude that both captains have embellished and distorted some of the comments, but there is no doubt that Chief Herzog needs to be told, bluntly and clearly, that he can never make comments about the attractiveness of employees' looks or other comments that could be seen by a reasonable person as offensive or discriminatory, or he will lose his job. He is always the Police Chief: he needs to set the tone, both on-duty and off-duty in conversations with subordinates. In short, he needs to clean up his speech. The most serious allegation was that a picture posted on Facebook in October 2015 showed Chief Herzog and his son, also a police officer, dressed for Halloween in blackface, an Afro-style wig, and yellow tee-shirts with the slogan "Hands Up, Don't Shoot," which would be an obviously racist taunt at the Black Lives Matter movement that arose in the wake of high-profile deaths of Black men in encounters with police. I conclude that no such picture was ever posted, that at best Capt. Hensley has grossly distorted a burglar costume from that year (with no blackface, no wig, and no tee-shitt), and that this fabrication was a defamatory attack on not only the Chief but his son. Fmther, Capt. Hensley outright lied in our investigatory interview when he said that retired Lt. Bob Reese told him that he had seen the picture. Mr. Reese never saw such a picture, has never been on Face book, and never told Capt. Hensley that he had seen any picture. I warned Capt. Hensleyalong with every other employee whom I interviewed-that I would recommend the discharge of any employee who lied or withheld information in the interview, irrespective of whatever I concluded in my investigation of the underlying issues, and along with the pending I&D investigation, there are serious issues whether Capt. Hensley was dishonest on multiple occasions. D. Should the Township take further actions to document expectations iu the wake of Chief Herzog's involvement iu the aftermath of the arrest of his friend Jeff Couch, aud were Capt. Gutman's allegations about the couteut oftext messages accurate? Chief Herzog's attempt to visit and support his friend and prominent political donor Jeff Couch following his arrest represented a serious error in judgment. While Chief Herzog saw this as suppmting a longtime friend in a time of enormous stress, when it comes to someone arrested by his department, Joel Herzog can never be 'just a friend" instead of the Police Chief. There is no evidence that the Chief interfered with or tried to influence the prosecution of Mr. Couch in any way. While the Township did not ignore this problem-Township Administrator Burks cautioned the Chief in a written memorandum not to do this in future-! recommend a stronger warning that any futther lapse of judgment with regard to professional boundaries would result in the Chief's termination. The appearance of impropriety is unavoidable, however benign the Chief's motives may have been. Capt. Gutman's description of what the Chief allegedly said in text messages with Couch, Jeff Couch's wife, were both inaccurate and seriously distorted and embellished. This fits a pattern of both captains putting the Chief's actions in the worst possible light, in this case in a way that was not truthful. - 13 - E. Did Chief Herzog manipulate the content of personnel files of employees under consideration for other positions in a way that represents improper handling of public records? Both captains allege that Chief Herzog removed negative items from the personnel files of two Police Department employees, allegedly to help them get jobs elsewhere. The Chief acknowledged briefly removing adverse police service logs (PSLs) from two personnel files while he reviewed employee appeals of the write-ups. In one case, he did so before the West Chester Police Depmtment even received a request to review the personnel file; in the other, the employee was seeking a position internally for which she was not selected. In neither case was any public record destroyed, and I find no evidence that the Chief intentionally manipulated public records to conceal information. Depmtment heads, including police chiefs, place and remove items in personnel files with considerable frequency; unless a public record is destroyed without legal authorization, this does not represent any violation of Ohio public records law. F. What are the appropriate next steps for the Township to take in response to these findings to respond to misconduct or change a dysfunctional leadership dynamic? At one point, a key issue was whether Capt. Jamie Hensley should face disciplinary charges and possible discharge for lying, both in his January 28 meeting with Chief Herzog and Assistant Chief Rebholz and in his interview with me on May 21, 2020. While I conclude that he did lie to me in our interview, and the Integrity and Development unit stood ready to submit the repmt on their investigation into Capt. Hensley's statements on January 28, Capt. Hensley's resignation moots the need for any disciplinary action. For Capt. Joe Gutman, who faces no disciplinary charges or issues at this juncture, he still faces a critical choice. If he wishes to remain as captain, he needs to accept two realities in his workplace: (1) It is Joel Herzog, not he, in whom the Board of Trustees have entrusted the management of the Police Department. The Chief must comply with applicable laws, but he is free to make management decisions with which Capt. Gutman may disagree, even strongly so. If the Trustees are dissatisfied with Chief Herzog's management of that trust, they are free to remove him. If Capt. Gutman cannot live with the Chief's management style, he is free to resign or seek employment elsewhere. If he stays, he must accept the Chief's authority and suppmt him in his role as Chief. It is the choice of the Police Chief to select his with the (2) approval of the Board of Trustees. Neither captain supervises her, and neither captain has any voice in her employment. Justine Bickley has done a fine job in that role. Capt. Gutman should be required in a performance action plan to treat Ms. Bickley in a warm, collegial, polite, and kind manner so that no objective outsider would be able to tell any difference from how he treats her as opposed to any other employee in the Chief's office staff. Failure to do so should result in discipline and, if needed, termination from employment. - 14- For Chief Herzog and for Assistant Chief Rebholz, there is no basis for disciplinary action. For this dysfunctional and toxic workplace to heal, however, they must communicate more effectively with Capt. Gutman and not avoid him to avoid the negativity. I also recommend a performance action plan for Chief Herzog spelling out those expectations, including regular, structured communication sessions involving Assistant Township Administrator Lisa Brown. I finally recommend that Dr. Cohen resume his team-building efforts in the wake of this report and any other actions that the Township may take as a result. Unless this dysfunction among the Police Depmtment's command staff can be changed, and all involved commit to work hard to make the individual changes necessary for that to happen, the situation is simply untenable. IV. DETAILED ANALYSIS OF ISSUES. I will now analyze in greater detail what I learned from the interviews on the key issues that I was asked to investigate. The Township Administrator and Law Director also requested that I share not only my factual conclusions but also my recommendations for what to do next, based on my legal analysis as a labor and employment lawyer who has worked for and with public employers, including law-enforcement agencies, for more than 35 years. As above, each issue will be addressed in turn. A. Did the allegations that Capts. Hensley and Gutman made about Justine Bickley-her hiring and her dress and conduct in the office--have any reasonable basis, and if not, how should the Township view those claims? During my interviews with Capt. Hensley and Capt. Gutman, both they and their attorney repeatedly stressed that they have no current issue with Justine Bickley's work, her dress, or her conduct toward them, and have not for a considerable period of time. For that reason, their attorney Lisa Tuck repeatedly objected to how much time I was spending on questions about their earlier complaints about Ms. Bickley and their allegations regarding her "misconduct"-the captains' word, not mine. There are, however, two major problems with the captains' apparent desire now to move past the issues around how they have treated Ms. Bickley. First of all, by everyone's account, the conflict between the two captains and Chief Herzog, which has since morphed into a toxic and dysfunctional relationship among all five members of the command staff, had its origins in March 2018 and events in the with the employment of Ms. Bickley as succeeding two months. Second, while the captains claim that they have had no issues with Ms. Bickley for well over a year, they continue to treat her in a notably cold and distant manner that everyone who works in that area, other than they, readily sees. Jamie Hensley and Joe Gutman are captains, the third-highest rank within the Police Depmtment, and as such they are senior-level managers. That means that they are not free to vent either their whims, dislikes, or discomfort in the workplace, because their actions can not only bind West Chester Township as a matter of law but could even create liability for the Township under the legal doctrine of respondeat superior. That means that their actions, particularly any wrongful actions, can be imputed to the Township; when they act, as a legal matter, they at times are West Chester Township. It is also clear under Ohio law that police officers are held to a higher standard than members of the public or even other public employees. See, e.g., Jones v. Franklin County Sheriff, 52 Ohio St.3d 40, 43 (1990). A - 15 - senior manager such as a police captain is held to an even higher standard, and it is against that standard that we must measure both their actions and their judgments in 2018 to the present time. 1. The Hiring of Justine Bickley. Ms. Bickley had been out of the workforce for some time as a stay-at-home parent, and she was looking for work following a difficult divorce. She saw that a position was open for an to Chief Herzog; the position was vacated when Courtney Lovell was promoted to Administrative Bureau Commander. The man she was then dating (and to whom she is now married) lived and worked in West Chester Township, and she decided to apply for a job there. Her sister's husband had worked in several roles in a long career in law enforcement, and he is also a longtime acquaintance and colleague of Chief Herzog. She she listed him as a reference on her application; to maintain Ms. Bickley's confidentiality, I will call him Quinn Andersson. Ms. Bickley has a master's degree in education and had taught business classes, including Excel, to middle-school students, and she had also previously worked in a law office and for Fifth Third Bank. At some point during the process, the Chief received a telephone call from Mr. Andersson, who said that his sister-in-law had applied and would be "perfect for the position," and that she was getting back in the workforce. Mr. Andersson told Chief Herzog that "it would help her confidence to get an interview if she's qualified." The Chief agreed that she had solid credentials, at least on paper, and said that he put her in his "yes pile" for an initial interview. Later in the process, the pool had been narrowed to three candidates: Ms. Bickley, a former employee of the West Chester Fire Department named Rhonda, and an employee who then worked for Walmart. Lt. Col. Rebholz preferred Rhonda but the Chief was less impressed; ultimately, he recommended Ms. Bickley after the interviews. While Capt. Gutman and Capt. Hensley assett that the former Fire Department employee was clearly more qualified, they were not part of the selection process so there is little basis for that conclusion, even if the selection were up to them, which it was not. The does not report to them, do their work, or answer to them in any way. Yet, from the outset, it seems that the captains had a real problem with Justine Bickley's presence. Granting a job applicant an interview based on a telephone call from a longtime colleague may not represent a laboratory-condition, pure hiring process, but it was hardly illegal or a violation of Township policy, let alone evidence of anything corrupt, as the captains darkly intimate. The reality is that in both local government and in the business world generally, personal connections may open the door for a candidate to at least be considered. That happened here, but as Lt. Col. Rebholz verified, even though he preferred another candidate, Ms. Bickley did well in the interview process. The captains also state their belief, with no evidence, that Chief Herzog and Justine Bickley knew each other or had some prior relationship before she applied. Both the Chief and Ms. Bickley told me, however, that they had never met each other prior to her interview. 13 This was simply a baseless assettion on their part, one of many in a string of speculative claims. There is no absolutely no evidence of any prior connection or relationship between the Chief and Justine Bickley. 13 While I have no reason to doubt Chief Herzog's account-he readily admitted to some statements that put him in a less than flattering light-Ms. Bickley is particularly credible on this point. Until she was briefed in mid-June, Ms. Bickley had no idea that this controversy had anything to do with her-her hiring, the winking, or what she did at work. Accordingly, at the time of my interview with her, she would have had no reason to hide any prior contact with Chief Herzog. - 16- Even more disturbingly, Capt. Hensley later intimated to Chief Herzog that he knew of something negative, even disqualifying in her background, but he always declined to say exactly that that was. In my interview, facing a direct order to answer my questions, Capt. Hensley could no longer evade saying what it is that he knew-and the answer boils down to nothing at all. Capt. Hensley said that he "didn't want to spread unsubstantiated rumors-about promiscuity, that she had cheated or had affairs with other people's husbands, had broken up marriages, and that she couldn't wait to work for a police department to find a husband." While these were rumors for which he had zero proof or even evidence, this nonetheless "shaped my feelings about working around her." It is hard to fully capture how reckless and utterly irresponsible Capt. Hensley's aspersions are. I even hesitated to discuss this here----given the baseless stain that this might make in some people's minds about Ms. Bickley-but I could not capture this aspect of Capt. Hensley's wrongdoing without describing what he said. Even if any of this were true-and there is no reason to believe that it is-would anyone seriously contend that such behavior would ever be brought up for a male candidate in a police department, at any level? Of course, this would not happen-this is at least one example of Capt. Hensley holding women to different work standards that have been outmoded-and even illegal-for decades. For Capt. Hensley to even drop those defamatory hints as part of his campaign against Justine Bickley was frankly disgusting. 2. Ms. Bickley's Early Employment. While both Capt. Hensley and Capt. Gutman cite alleged errors that Justine Bickley made once she started her job, I give little credence to these allegations, given that she can seemingly do little right in their eyes. Her supervisor is Courtney Lovell and she works almost exclusively for ChiefHerzog, and both have been quite pleased with her performance. Several witnesses throughout West Chester Township government commented on how consistently pleasant and eager to be helpful Ms. Bickley is. The only people who have expressed any substantial issues with her performance are Capts. Hensley and Gutman. 3. The Winking Incident. The winking incident at the Police Memorial event was not handled as well as it could have been. When spoke with Courtney Lovell and Ms. Lovell later texted Ms. Gutman and said that she would speak with Ms. Bickley, she should have carried out that commitment. Apparently, then-Human Resources Manager Joan Tumblison suggested that this was inadvisable given the lack of evidence that Ms. Bickley did anything wrong; while I agree with that she did nothing wrong, it would have been better to at least follow up with the Outmans about what conclusions had been reached. Capt. Gutman believed that Township officials had spoken with Ms. Bickley, and it is unfortunate that he was not told what the Chief and Human Resources had concluded. While no one can say if that would have headed off later drama, given the reaction of both the captains and their spouses, it would have been a more transparent outcome. Another controversy that arose during the handling of this complaint was the Chiefs decision to modify the Police Department's discriminatory harassment policy to eliminate the provision that the complainant would be told what specific action the employer took in response to a complaint of harassment. Both captains repeatedly cite this change as evidence that Chief Herzog "will do - 17- anything to protect" Ms. Bickley. Ms. Bickley, of course, needed no "protection"-she had done nothing in violation of the policy. The original policy was based on a model Lexipol 14 policy, but Joan Tumblison, herself a lawyer, suggested the modification, correctly saying that the complaining parties (such as the captains) have no right to know the details of what action, including counseling or discipline, that an employer has taken in response to a specific complaint. That is true as far as it goes; in this case, however, this was an "unforced error" for three reasons. First, the timing of the change lent itself to the budding conspiracy theory that the Chief has some special relationship with or defensiveness about Justine Bickley. Second, combined with Courtney Lovell's unfulfilled promise to talk with Ms. Bickley about the winking, it looks like steps were skipped. Third, as a matter of practice, it is cetiainly advisable to give the complainant some substantive briefing on at least the conclusions of the inquiry or investigation. Here, it would have been better to have met with the captains and simply told them the truth, however unwelcome it may have been: "I have reviewed your complaints and talked with Ms. Bickley [which should have happened], and your complaints have no merit. Her winking was not flitiatious, Capt. Gutman was not singled out in any way, and neither her dress nor her behavior has been inappropriate. Get on with your work and treat her professionally, as we expect her to do with you." Given the captains' fixation on Ms. Bickley's behavior, it may have made no difference, but it would have been the better practice. But after reviewing all of the captains' written complaints, interviewing the two of them over a total of four days, and hearing from Ms. Bickley, Ms. Lovell, the Chief, the Assistant Chief, and a number of other current and former employees who interacted with Ms. Bickley frequently, I find that there is absolutely no evidence that Ms. Bickley's behavior was flirtatious in any way. It is, therefore, not at all reasonable to claim that her behavior was sexually offensive to a reasonable person. Capt. Gutman and his wife may have been genuinely offended as a subjective manner; different people have different standards and expectations when it comes to interactions with persons ofthe opposite sex, based on personal beliefs, cultural and religious standards, and perhaps personal history. But any manager's standards for conduct at work (including interacting with Ms. Bickley) must be evaluated through the lens of a reasonable person, not that of the hypersensitive, culturally conservative, or overly jealous-and the governing principle is that women and men must be treated equally. As a practical matter, it is highly unlikely that Justine Bickley would have chosen to "fliti" with Capt. Gutman in a large, public event with his wife standing right there with him! But in any event, she did not fliti with him or make an advance-she winked at him. What !learned (and others already knew) is that Justine Bickley winks frequently and not just with men. She said that she grew up with a sister and the two of them winked frequently, when joking, when making friendly connections with people, and as a way of acknowledging others in greeting 14 Lexipol LLC is a private company that provides policy manuals, training bulletins, and consulting services to law enforcement agencies, fire depatiments, and other public safety departments. It is widely respected in the field, but it is one of several corporate resources for model policies. In his written complaint of retaliation that he submitted this spring, Capt. Gutman claimed that the Lexipol model policy that was changed at Ms. Tumblison's urging was, in fact, "correct." This is an absurd overstatement. Lexipol is not law~state and federal anti-discrimination laws are the only binding sources in this area. Many witnesses describe Capt. Gutman as quite knowledgeable and a skilled police professional but that he often displays a black-and-white, inflexible, "there is only one right answer" world view. This would be an example of that. Lexipol's policy is not "correct"-it is one of many model policies from which a lawenforcement agency can choose. In my own three decades as a human resources director in local government, I have found much ofLexipol's work innovative and helpful; in other cases, I have found their polices overly formalistic and overstated, including inserting employee "rights" that do not, in fact, exist. - 18- and conversation. It is something she does to be friendly, like a smile or wave of the hand, usually without consciously thinking about it. In a workplace, particularly one as overwhelmingly male as the West Chester Police Depattment, winking risks being misinterpreted, of course. During our interview, I told Ms. Bickley that winking is not advisable in a workplace setting and that she should stop doing so-not because she committed any offense but because a wink could be seen as something more than just being friendly. She understood and readily agreed to stop doing so at work. But Ms. Bickley at that point had no idea that her winking was in some way the "first domino to fall," the trigger for the dysfunction that followed. 4. The Aftermath of the Winking Incident. Chief Herzog summarized his understanding of Capt. Gutman's and Capt. Hensley's concerns about Ms. Bickley in a memorandum to Joan Tumblison, dated May 21, 2018. Capt. Gutman disagreed with some of the Chiefs summary, and he submitted his own memorandum to Chief Herzog and Ms. Tumblison on May 24. Both Capt. Gutman and Capt. Hensley raised other things that Ms. Bickley did that made them uncomfortable, including working late at the office when most others were gone, leaving one or other of the captains alone in that area with her, and they also objected to conversations she had with them that they felt were out of line or suggestive. I will address those claims fmther below. But even before the winking incident, and began posting memes on Face book reflecting their negative feelings about flitting, cheating, and jealousy. Some of Facebook posts, joined in by are offensive, sexist, and way off base. On April 23, 2018 (before the winking incident but perhaps reflecting reports of Ms. Bickley's "uncomfortable behavior"), Ms. posted a definition of "opportunistic whore" (clearly referring to a woman; the pronoun was "her"). On April 30, Ms. Hensley posted a meme stating that "single women have NO business interacting on a personal level ... with ... a married man. PERIOD." True, there was no explicit connection to the West Chester Police Depattment-or to anything. This is what is known in social media as "vagueposting," a post that begs questions and inevitably causes the reader to wonder what or who the poster is talking about. But after the winking incident, posted a far more explicit photograph of a leering woman, with her shitt unbuttoned most of the way down her chest, winking in a very sexual way, adding her own caption: "I can spot a snake a mile away." The meme itself stated, in all capital letters: "Call it female intuition, but you're not fooling me." In his written response to Chief Herzog's memorandum, Capt. Gutman called this an "ambiguous post" and noted that the post "does not mention the West Chester Police Depattment, its operations, its personnel, or any facts somehow relating to this incident." That is literally true-Ms. Gutman's post, too, is another example of vague-postingbut it is disingenuous to pretend that this post is anything but an obvious reference to the winking incident. And if the other posts also reflected the captains' wives' objections to Ms. Bickley (or what their husbands were telling them about her), then this passive-aggressive campaign on Facebook was vicious and cruel. The two captains are also correct that West Chester Township does not have the broad legal right to police the social media posts of employees' spouses. There are obvious exceptions-if a relative were to post information that could endanger someone or damage an investigation through revealing details that the relative could only have learned from an officer, that could be a serious disciplinary - 19- infraction. The captains are also not free to do indirectly what they could never do directly, such as attack or harass Justine Bickley through the cover of their wives' posts and then disclaim any responsibility. In that regard, their carefully choreographed and coordinated language about the posts is revealing-the posts were "ambiguous" and "don't mention the West Chester Police Department," and, of course, "I know nothing about my wife's Faeebook posts"-even though the posts just happen to track events that just happened where they work. Co-workers may have made the connection because the connection seems obvious to anyone who knows the players and what is going on. There is a widespread perception among many in the department (and not just the Chief and and are Assistant Chief) that a major patt of the problem is that threatened by or jealous of Justine Bickley and do not want her working near their husbands, and this is then reflected in the captains' treatment of her. I cannot know this, of course, 15 and unlike the captains, I will not substitute speculation for facts. What I do have, however, is the content of their wives' posts, the authenticity of which was confirmed by Capts. Hensley and Gutman. The posts just before and after the winking incident in May 2018 seem to reflect warnings about the "danger" of single women being around married men. specifically posted that "single women have NO business interacting on a personal level ... with ... a married man." She is free to have her own beliefs, of course, but applied to a workplace, that expectation would be flatly illegal, and has been so since before Capt. Hensley was born. If Capt. Hensley believes that and were to try to act on that belief, that would place the Township at serious risk of liability for employment discrimination. Of note, Capt. Hensley has repeatedly stated to his superiors that he "will not have personal conversations" with Ms. Bickley. It may be only coincidence that he is echoing his wife's Facebook posts. The issue is not what a captain's spouse-or the captain himself-privately believes. The issue is how that captain acts at work. For that reason, it is the Township, not an employee spouse, that will set expectations for a how police captain conducts himself at work. If in fact the problem is that Capt. Hensley and Capt. Gutman are simply uncomfortable working around a younger, attractive woman-as some of their complaints and their obsession about her dress in the early months of her employment would tend to indicate-then that, too, is inconsistent with their role as senior managers in the Police Department. Employees of the West Chester Police Depattment are expected to work with a wide range of employees without disparate treatment-all racial and ethnic backgrounds, varied religions and no religion, women and men, married or not, young and old, gay and straight. Far more is expected-and the law demands more-of senior managers such as police captains, for their actions and statements can be imputed to the Township if seen as discriminatory. If a captain cannot manage his discomfort around Ms. Bickley, 16 then 15 Because neither Ms. nor Ms. is a Township employee, of course, I could not order them in for an interview nor did I seek to do so, as it is not their behavior I am evaluating but that of the two captains, along with Chief Herzog and Assistant Chief Rebholz. I cite their posts only because what was expressed in the posts is echoed in some of the things that the captains themselves have said about Ms. Bickley's interactions with them, and it was therefore the captains' own statements and behavior that made their wives' Facebook posts relevant to my investigation. 16 While Ms. Bickley was single when first employed, she was already seriously involved with a boyfriend whom she would go on to marry. That was one reason she was interested in the job with West Chester Township; her soon-to-be fiance lived and worked there. None of that remotely matters to her employment or how the [note cont. next page] - 20- the problem lies with that captain himself, not Ms. Bickley-who has the right to do her job without being viewed or treated as some kind of temptation or distraction. 5. The Captains' Allegations of Ms. Bickley's "Misconduct." In their initial complaints to Chief Herzog back in May 2018, shortly following the winking incident, both Capt. Hensley and Capt. Gutman listed some of Justine Bickley's actions that they saw as inappropriate or that made them uncomfortable. They reiterated and expanded upon these specific complaints in their written reports of retaliation to Township Administrator Burks in February and March of this year, now referring to Ms. Bickley's alleged "misconduct" (Capt. Hensley) and "inappropriate workplace conduct" (Capt. Gutman). While the captains and their counsel repeatedly objected to my questions about these accusations in our investigatory interview-insisting that this was "ancient history" and no longer reflected a current problem, the accusations are not that easily set aside or sanitized. It is true that even if a claim of harassment or inappropriate conduct is found to be baseless, retaliation for making the claim can itself be an illegal act. In this case, the initial allegations about Ms. Bickley remain relevant because they still play a role in the captains' professed "discomfort" in having normal, workplace interactions with her to this day, including the friendly banter and small talk that is patt of any normal, functional office dynamic. Considering those claims may also be relevant to (I) determine whether Ms. Bickley in fact did anything wrong or has instead been baselessly smeared, and (2) an assessment of whether the captains have themselves engaged in disparate treatment of a female employee. Beyond the winking incident (which did not involve him), in our interview Capt. Hensley cited four examples of Ms. Bickley's "inappropriate conduct" that he saw as suggestive or sexual in nature and that made him uncomfortable around her. To summarize: (I) Capt. Hensley first cites that Ms. Bickley often worked past the normal quitting time of 4:30p.m. even though, unlike the captains, she is an hourly, overtime-eligible employee. At the end of the normal workday, Capt. Hensley would close his office door, change out of uniform, and usually leave around 4:30 or 4:45p.m. As he related the story, 17 "Within first few weeks of hire, I [note cont. from previous page] captains should be treating or interacting with her. West Chester Township does not have different rules or expectations for single vs. married employees, whether male or female, for to do so would be per se illegal. 17 All quotations in this report are reconstructions or paraphrases taken from my detailed, contemporaneous notes that I typed during the interview, not from a verbatim transcript. At the request of the Township's Law Director, I attempted to record the interviews of both Capt. Hensley and Capt. Gutman using the Township's pottable recording device, but in the case of Capt. Hensley's interview, I misunderstood the recording instructions and most of the interview failed to record, to my regret and embarrassment. I never planned to use the recordings in my own work. In fact, I did not record the interviews of any witnesses other than the two captains, because the potential for litigation was the highest with them; the Chief, while also a subject of the investigation, is an at-will employee who can be removed at will without legal recourse. In any contested hearing before the Trustees, actual witnesses would have to testify in any event, and the primary use of the recording at that stage would be for the Township's counsel to double-check the captains' hearing testimony against what they said in their interviews. Under my terms of engagement with West Chester Township and Frost Brown Todd, my notes are attorney work product that will remain in my possession and control. The notes include my impressions during the interview, upon which I rely in preparing this report and making my legal recommendations to the client. - 21 - changed and was leaving, everyone else was gone, I'm walking out, but she is still at her desk. She asked if she could ask question, and she asked, 'Do you think this should be higher priority?' 18 I told her, you probably want to talk with Chief about that." Capt. Hensley said that while the interaction was not on its face improper, the "context was the attire she wore, the comments he had heard the Chief make [about her appearance], and her history"-the history apparently being the baseless rumors regarding her past life before her hire. 19 "Around same time, I was going to leave again, and again everyone else is gone and she's there late. As I'm coming out of my office, as I am going to leave, she is coming to me with a form'Oh, I was going to give this to you.' I replied, 'Oh, I'll get that to in the morning.' She hung around for a minute ... a few seconds.' I felt that she was trying to open a door for something more to happen because of her body language and timing. She could have asked someone else; it was not necessary. It made me feel weird. I felt that she's trying to initiate something after hours when everyone is gone." (2) In a second incident, Capt. Hensley repmted that "Sometime after lunch, she [Ms. Bickley] made a run to this building [the Township Administration building in which the interview took place]. This day, she asked ifl had a chance to eat lunch. 'I'm running out, I can pick you something up if you want.' It could have been someone being nice, but in context of everything else that happened, I was uncomfmtable." (3) "In August 2018, after I brought my initial concerns and Chief and he had done his response," Capt. Hensley repmts this incident. "I was in my office, getting ready to walk out to go to a staff meeting at 3:00 p.m.-a set meeting every Thursday. About 2:58, she came to my door and says-we had never talked with her about my family; we homeschool our kids. She had homeschooled at one point. She came to me and said, 'Hey, do you have any health books at home on sex education,' she was dealing with her son, who is hitting puberty. I was very uncomfortable, plus I was late for my meeting. I offered to let her contact my wife." Capt. Hensley described this as a conversation with "sexual undertones," and this is the only incident with Ms. Bickley that even had any sexual content or nuance. Now, let's turn to the incidents cited by Capt. Gutman in his complaint or interview: (I) While he was walking out to meet his wife to pick up soup she was dropping off, Capt. Gutman heard the sound of clicking heels behind him; it was Justine Bickley. "She was practically running after me. I believe it was her intention to make it look like were together walking to my wife." In our interview, he added these details about why he connected Ms. Bickley's walking with something suggestive: "It's just that I had announced that I had to go outside to meet my wife to get this soup, it was for Matt Beiser's mom; his dad had just passed away." Of note, Capt. Gutman's office is directly opposite Ms. Bickley's workstation; she literally sits a few 18 As a new clerical employee, Ms. Bickley was apparently trying to learn the Chiefs prioritization system for documents, and that appears to be why she asked---