The pair claimed Herzog made sexist comments about female employees and their appearance; referred to two officers as “White Mike” and “Brown Mike,” “mocked” Trustee Lee Wong’s accent, referred to Indian residents as “dots” and his allergist, the husband of a mosque leader, as a “terrorist.” They also claimed Herzog gave preferential treatment to some employees.
After the captains began complaining, they say Herzog began freezing them out of command staff decisions, undermining their authority and giving them less than stellar performance reviews, which impacted their pay, among other things.
The motion to dismiss filed a year ago said the retaliation claim must be dismissed because the defendants are entitled to statutory immunity. It also says there is no proof of retaliation. The judge said there is a provision of Ohio law that “provides absolute immunity to employees of political subdivisions against civil liability, with some exceptions.”
“Plaintiffs argue that one of the exceptions applies here. Plaintiffs explain that Herzog and Burks acted ‘with malicious purpose, in bad faith, or in a wanton or reckless manner,’ and therefore they are not entitled to immunity under Ohio Revised Code...,” Barrett wrote. “In order to reject the argument that the immunity exception applies, the Court must find that the complaint is ‘devoid of allegations tending to show that the defendants acted in at least bad faith.’ Here, the amended complaint is not devoid of such allegations.”
The suit also takes the township to task for publicly releasing the 54-page investigation report by consultant Douglas Duckett — before he talked to everyone with information about the situation — and making statements supporting the chief. The captains are accusing the trustees and others of defamation.
Duckett concluded Herzog did not deserve disciplinary action but needed to make some improvements.
The motions to dismiss say the township officials have statutory immunity because they were acting in their official capacity by keeping the public informed about the issue. Plus they did not act with “malice, in bad faith, wantonly or recklessly.” Barrett disagreed again, as he did when examining the individual claims against the trustees, Burks and Duckett and denied the dismissal motion.
“The Board of Trustees argue that even if Plaintiffs have plausibly alleged a claim for defamation, they are entitled to statutory immunity. However, the Court finds that Plaintiffs have included allegations in the Amended Complaint tending to show that the Board of Trustees acted ‘in at least bad faith’...,” Barrett wrote.
“Plaintiffs allege that the Board of Trustees, along with Burks, ‘directed Defendant Duckett to prepare a report and recommendations for public consumption that they knew contained false accusations about Plaintiff, warped the investigative evidence to justify additional retaliation, and would ultimately result in Plaintiffs’ termination or resignation.’ As such, statutory immunity under Ohio Revised Code § 2744.03(A)(6) does not apply at this stage of the proceedings.”
The captains’ attorney Elizabeth Tuck told the Journal-News this is a big win for her clients whose “long and distinguished careers” were irreparably damaged by “Chief Herzog and his cronies.” She told the Journal-News “they intended to retire from policing and the department many years in the future, so they have lost massive amounts in pay and pension.”
“We are extremely pleased with the judge’s decision,” Tuck said. “This means that Chief Herzog and the other individuals who destroyed the captains’ careers to cover up what was going on in the department are going to have to answer for their statements and actions.”
The township generally does not comment on pending litigation.
“Litigation is a process that has to run its course,” Barb Wilson, director of public information and engagement told the Journal-News. “To comment specifically on details as they are revealed could have impact on the overall case, so West Chester will wait for final outcomes from the court.”