Interoffice - Memorandum To: Col. Joel Herzog From: Larry D. Burks, Township Administrator Date: RE: July 20, 2020 Performance Improvement Plan Introduction. As you are aware, West Chester Township has concluded its internal investigation of both the complaints of retaliation that former Capt. Jamie Hensley and Capt. Joe Gutman raised in letters submitted to the Township Administrator in February and March of this year and a range of other issues presented by two years of conflict and dysfunction within the command staff of the West Chester Police Department. As you know from the briefing that Mr. Duckett, Mr. Crain, and Ms. Brown gave you, we have found that the allegations of retaliation are unfounded and the allegations of personal misconduct by you are either unfounded or strongly embellished. Specifically, the investigation concluded that the alleged “blackface” incident in 2015 did not happen at all, and that Capt. Hensley fabricated at least one allegation of what you had supposedly said during the process to hire your new in 2018. That said, as you have been told, you have been too loose and occasionally careless in your language at work or with subordinates. As a condition of your continued service as Police Chief, this behavior must change immediately and permanently. Directives for Change. (1) You must not make any comments, including jokes or humor, that could reasonably be interpreted as targeting any employee, applicant, or member of the public based on race, color, religion, sex (including sexual orientation and gender identity), national origin or ethnic ancestry, marital status, age, or disability, or any other personal characteristic protected by law or Township policy. There was absolutely no evidence that you ever discriminated on such a basis. As you acknowledged, however, your use of humor has at times been too loose—that must change, now and for the rest of your employment. You are the Police Chief, you are never free to “let your hair down” around people who work with and for you, however long you may have known them and however sure you may feel that the person in question would not find the comment or joke offensive. The boundary is that you are at work and you lead the organization and must, therefore, model the behavior the Township expects of its police officers and all employees. For those reasons, you can never make disparaging comments, even in jokes or other humor, that target people on one of the bases listed above, including but not limited to jokes, humor, or observations of a sexual nature—at work, with people you work with, or when in places where members of the public may hear. You are always the Police Chief; you cannot put that mantle down to “just be one of the guys.” This has been a problem at times, as you recognized. We take you at your word that you will make the needed change, but we nonetheless advise you that any violations of this expectation would result in your immediate discharge for cause under your employment contract. (2) Together with the Assistant Chief, you will endeavor to ensure more open and effective communication with the Captains. As a first step, whenever possible, you should convene brief, daily meetings with the command staff, probably at the beginning of the work day but in your discretion based on what works, during which each team member can brief you (and you can brief them) on the events of the day and any other issues that people may need to know. All members of the command staff are expected to participate in these meetings, whether one-onone, formal or informal, or among the command staff as a whole in an open, cooperative, professional way, not in a sullen or withdrawn manner. Capt. Gutman has been so directed. (3) You are expected to strictly enforce the terms of the performance improvement plan for Capt. Joe Gutman. You will do so fairly, not searching for trivial matters to object to, recognizing that anyone can have a bad day. But you will also not overlook or stall at addressing real issues or failures to comply with the plan. To ensure that the Township—and you—are more protected against claims of retaliation, you will involve Assistant Township Administrator Lisa Brown, or if she is unavailable, Human Resources Manager Tonya Charles, in any corrective or disciplinary action toward Capt. Gutman, and nothing in this area can be undertaken or issued without the approval and joint sign-off of Human Resources. (4) As you know, your conduct in the aftermath of the arrest of Jeff Couch created the perception that you might be improperly interfering with his pending criminal case. While you were motivated by trying to help a friend, when it comes to your work and the leadership of the Police Department, you must always carry yourself as police chief and never forget those professional boundaries. In this and all other aspects of your work as Police Chief, you must conduct yourself in a way that strictly avoids not only actual favoritism or impropriety but even the appearance of such. Any failure to do so in the future will result in your immediate dismissal, and we appreciate your commitment to avoid such mistakes in the future. (5) The Board of Trustees has vested the management of the Police Department in you, under the supervision of the Township Administrator and working also with the Assistant Administrator and Human Resources Manager. You obviously work with Lt. Col. Brian Rebholz in managing the Department. As Chief, you (and Assistant Chief Rebholz, when appropriate) have the right to issue and change policies, procedures, and even longtime ways of doing business, and that is so because you run the Department, not the captains. We have made clear to Capt. Gutman that his role (and that of any other captain) is to carry out those directives, even those with which he may disagree, unless the directive is illegal or violates established ethical standards set forth in Ohio law or other binding rules (as opposed to his own opinion or values). The captains’ job is to carry out those directives and policies and support the Department’s senior management in their own conversations and interactions with lieutenants, sergeants, police officers, and any other employees under their authority. That said, this will work far more effectively if the captains are made part of the process to develop and change policies as much as practicable, and you should certainly explain to them the reasoning behind policy or procedural changes, because understanding such changes will help them implement the change down the chain. Talking with the captains about such changes ahead of time offers them the chance to share their ideas and input, and that could result in better policy choices. In the end, though, we expect you to manage and decide. For communication and the relationship to improve, however, you and Lt. Col. Rebholz need to overcome your understandable anger and hurt and talk more actively to the captains. The daily command staff meetings should help that, but such communication must be frequent, formal and informal, and ongoing. Further, the investigation report found that the captains had a valid point about you or Lt. Col. Rebholz assigning projects or issuing directives to subordinates without the captain in question knowing about it. Unless the captains know what their subordinates, particularly lieutenants and sergeants, are doing, they cannot as effectively supervise their subordinates or know how to assign future work. Of course, you and Assistant Chief Rebholz can and will make direct assignments to lieutenants, sergeants, and officers from time to time. You are not required to follow a rigid chainof-command in doing so. But it would be far better practice for you or Lt. Col. Rebholz to follow up with the captain in question later either verbally or by e-mail to let him know that one of you has made such an assignment. As part of making sure the improved communication is real and lasting, the Township will determine programs for improving communication that all members of the command staff, including you, will participate in. Part of that will involve completing the work that your team was already doing at one point with Dr. Henry Cohen, and Township Administration will likely identify other training programs on interpersonal communication that you will be directed to attend. The Assistant Township Administrator will provide a monthly report to the Township Administrator regarding individual and group progress. Enforcement of Performance Improvement Plan The expectations set in this performance improvement plan are binding on you, and we expect total and uniform compliance, without exception. Any violation will be immediately reported to the Board of Trustees, and as you know, your employment contract provides that you serve at the pleasure of the Trustees, so any failure to meet these expectations could well result in your immediate discharge. We expect that you will fully comply; your continued employment depends on that. Conclusion. This has been a damaging and hurtful chapter for all involved. The Trustees and senior Township management are committed to work with you to bring about the permanent, meaningful change in the command staff work relationships, as the status quo is unacceptable. While we do expect and direct you to make the changes set forth in this plan and abide by them, you continue to enjoy the confidence of the Board of Trustees in your role as Chief, and we thank you for that service and leadership, particularly your exemplary work in how you handled recent protests in the community in such an effective and compassionate way. If you have any questions about this plan, please see Ms. Brown or Ms. Charles. Col. Joel M. Herzog Date Larry D. Burks, Township Administrator Date Lisa D. Brown, Asst. Township Administrator Date