Louisville Corruption Review focuses on O’Connell

https://louisvillecorruptionreview.org/ 

“…O’Connell kept track of who did or did not contribute to his campaign,”

 Bradshaw also charges in her suit, filed in Jefferson Circuit Court, that County Attorney Mike O’Connell pressured some of his assistants to donate to his election campaign “or fear his wrath.”

Mike O’Connell, Jefferson County Attorney, and the Price of “Loyalty”.

by Michael Stevens
“It is money, money, money! Not ideas, not principles, but
money that reigns supreme in American politics.”
Robert C. Byrd
A recent op-ed from the Courier-Journal discussed how elected government
officials in Jefferson County have expected their employees to contribute
financially to their re-election coffers. For example, the Jefferson County
Attorney’s office seems to have a long history of expected contributions from
the attorneys working in that office going back as far as Bruce Miller.
Basically, money has been contributed over the years by attorneys employed
at the Jefferson County Attorney’s Office to assist their boss’s election efforts.
A practice that is not new, not novel, not regulated, and worse yet apparently
not acknowledged beyond a simple denial by the current occupant of that
political office – Mike O’Connell.
The Courier-Journal calls attention to this practice and asks its readers if this is what we want or
expect from a County Attorney. Whether called campaign contributions or tokens of employee
“loyalty”, should it continue?
As an Army Judge Advocate and Army Officer occupying a position of trust and public service, we
were held to a standard even higher than the criminal and ethical codes. Accepting money from
those who work for you was and is absolutely prohibited. We were expected to even avoid even
the “appearance of impropriety”.
The Jefferson County Attorney’s Office has a large staff. A very large staff with over 400 attorneys.
All of us have read the stories on how difficult it has been for government lawyers to pay their
4/6/2018 Mike O’Connell, Jefferson County Attorney, and the Price of “Loyalty”. | Kentucky Court Report
http://kycourtreport.com/mike-oconnell-jefferson-county-attorney-and-the-price-of-loyalty/ 2/13
school loans and raise a family on their government salaries with some even delivering pizza on
their own time in the evenings.
Well, the Courier-Journal has issued the challenge and concluded its opionion-editorial piece with
the following:
Sometimes the Courier-Journal irritates me with the reactionary tone of their editorials and even
their stories. However, the position that the news media occupies as the “Fourth Estate” aka the
“press” can never be understated. And although everyone seems to fawn over the new digital age,
there is just some power and authority found in the written word on a piece of paper that is not
found in audio or video.
You may not always like or appreciate the stories, but most of us will acknowledge the value they
provide in accountability with the gathering of facts, interviews of those involved, and a
marshaling of all that has been accumulated with a conclusion and opinion which you can either
agree or disagree. Those of us who blog part time owe a debt to the hard work that it takes to
uncover these stories which allow bloggers like myself to throw in out two cents worth of opinion.
Thank you.
Here is the op-ed piece. Hopefully, the Courier will keep it available on-line for some time.
Mike O’Connell’s Loyal Employees
Mr. O’Connell can deny he seeks money from employees. But he can’t deny the appearance
that employees feel pressured to give.
His current fundraising may not violate the law. It may skirt the Metro ethics ordinance.
But like so many things in politics, it doesn’t pass the smell test.
So why not limit contributions from employees? Or just stop taking them?
That way his employees could devote their full loyalty to the public and keep all of their hardearned
paychecks for doing so.

Ah, for the good old days of Jefferson County politics where the “2 percent” club flourished in
local offices and employees didn’t have to wonder how much to donate to the election fund of
the boss.
Former Jefferson County Attorney J. Bruce Miller called his request for 2 percent of
employees’ pay the “Assistant County Attorney Voluntary Fund.”

4/6/2018 Mike O’Connell, Jefferson County Attorney, and the Price of “Loyalty”. | Kentucky Court Report
http://kycourtreport.com/mike-oconnell-jefferson-county-attorney-and-the-price-of-loyalty/ 3/13
Posted on Friday, February 7, 2014
News: “Judicial Branch implements… COAM 2014:06 – Court of Appeals M…
Click on the above heading for the rest of the CJ Post.
Categories: Ethics, Government, Opinions and Editorials
Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.
And former Jefferson County Sheriff Jim Greene made it easy by tucking envelopes into the
paycheck of each employee that bore their names and a calculation of 2 percent of their pay.
But times have changed.
Today, it seems heavy-handed, if not outright wrong, for elected bosses to suggest employees
must donate a fixed amount for the privilege of keeping their jobs.
So Jefferson County Attorney Mike O’Connell has come up with a new euphemism for
employee support, calling it “loyalty.”
“I tell people that I hire that I seek competency, diligence and loyalty,” he told The CourierJournal’s
Andrew Wolfson. “And loyalty means they support me and this office in all things we
do, including my election.”
His staff of nearly 400, including 120 prosecutors, has been amazingly loyal, according to
campaign finance records of Mr. O’Connell, a Democrat who is running for re-election to his
second full term.
Nearly half of the $201,000 Mr. O’Connell has amassed since his last election in 2010 came
from assistant county attorneys and other employees in his office.
And this was for a race in which he didn’t even have an opponent until lawyer Karen
Faulkner stepped forward one day before last week’s filing deadline

Kentucky Judge Says Attorney’s Traffic School Can’t Dismiss 2,300 Cases

October 2, 2015

 

A Kentucky district court judge is challenging a county attorney’s revenue-generating traffic school in the state.

Kentucky news outlets report Judge Sean Delahanty is opposed to the operation of Jefferson County Attorney Mike O’Connell’s traffic school which allows Louisville traffic violators to get their cases dismissed without having to pay court costs. The school, called Drive Safe Louisville, generates revenue to operate the county attorney’s office.

Delahanty has declined to dismiss charges against roughly 2,300 defendants who have graduated from the program, arguing the county attorney’s office has no right to dismiss charges without court costs also being applied.

According to reports, when the traffic program started, then-District Judge Ann Bailey Smith also declined to dismiss citations against motorists who completed the program, saying they must also pay court costs of $134. A state Supreme Court ruling filed in June, however, said Smith’s objections were rendered moot and allowed drivers to get their citations dismissed if they pay a fee and take O’Connell’s online program. The court dismissed an appeal by Smith last week.

Despite the court’s ruling, Delahanty set a Thursday hearing for five representative defendants, news outlets report. Delahanty said any order he issues will apply to all 2,300 cases that ended up in his court.

O’Connell said in court papers that the charges against all 2,300 should be dismissed based on the state Supreme Court’s ruling and added that Delahanty has no legal grounds for “cherry picking” five representatives.

According to reports, in the first 18 months of operation, 17,557 drivers completed O’Connell’s program, which generated about $2.6 million. About $1.3 million went to the county attorney’s office. The rest goes to a contractor that runs the program and to nine recipients including the state and local governments to fund local jails and other programs.

Drug court judge seeks emergency fund for participants in treatment program

District Court Judge Stephanie Pearce Burke

District Court Judge Stephanie Pearce Burke says her speciality drug court in Jefferson County designed to steer criminal defendants toward addiction treatment instead of jail is producing good results, but it’s only at half-capacity and in need of discretionary funds to help participants in crisis pay for housing, medication and food to increase their odds of completing the program.

Earlier this week, Burke participated in the inaugural criminal justice roundtable of city leaders created by Citizens of Louisville Organized and United Together (CLOUT), a faith-based social justice group. In the meeting — which included representatives of Louisville Metro Police, Metro Council, Mayor Greg Fischer’s office, Metro Corrections and the Jefferson County Attorney — CLOUT advocated for several policy changes to steer those with mental illness and drug addiction away from the criminal justice system and toward treatment and services.

Asked what the roundtable participants can do to help the drug court system, Burke said the court is in need of a discretionary fund to help participants who immediately require financial assistance — such as $75-100 to pay for a first week’s rent, $50 to fill a prescription to treat a co-occurring mental illness, or even food and clothing in an emergency.

“Even $5,000 or $10,000 would be a huge amount of money and go a long way in meeting the needs of our participants,” said Burke, who added that stable housing is often the largest burden and obstacle toward their successful completion of the program.

While her court can’t itself fundraise, she suggested that a steering committee be formed that could take on this task, as has taken place in other cities around the country in implementing similar drug courts.

Though Burke said her drug court is growing with an influx of participants in the past month, it is “currently only at about half capacity,” which aligned with CLOUT’s handout at the meeting stating that the drug court has enough staff to serve 160 participants, but only 80-90 are currently in the program. But while CLOUT called for “more training of judges and prosecutors” on the benefits of the program so they will refer more defendants to it, after the meeting Burke countered that the lack of participation is more due to hesitancy among defense attorneys who she says often believe they can get their client a better deal outside the rigorous treatment model of the drug court.

“I’ve had attorneys tell me ‘well, drug court is for criminals and my client is not a criminal,’” said Burke. “Well, that’s actually backwards. Drug court is for addicts, and it’s addicts who end up in the criminal system due to their addiction. And we treat them like people who have an illness, which they do.”

In the meeting, Jefferson County Attorney Mike O’Connell took issue with the suggestion that his prosecutors need more training on the drug court program so they’ll refer more defendants to it, saying that while they can discuss and encourage such a decision, they cannot force a defendant to do so and “this is not a process where we just refer people into a drug court.”

“It’s not like we have empty seats in the Yum! Center and we just start shoveling people in there,” said O’Connell, whose own son died of a heroin overdose three years ago.

Burke said both defense attorneys and prosecutors alike need to examine and share a defendant’s history, even in cases as simple as theft, as “I see people who have 10 or 15 theft charges and they’re all drug related. That person is an addict and the only reason they’re stealing is to get their next fix. So why don’t we do something smart for the community and stop that perpetrating on the community and get them into treatment.”

Adding that most participants in her drug court program have co-occurring disorders of substance abuse and mental illness, Burke said such people are able to receive both mental health services and addiction treatment.

“They have a counselor, they have a clinical therapist, they have all of this through our program,” said Burke. “All of these people that are coming in front of the criminal courts do not have access to those resources. So I try to explain to (defense attorneys) that they’re not doing their client any favors by talking them out of it, when those people want treatment, they want help… People who have a support network like we have fare so much better in their sobriety and their recovery than people who are out there just kind of fending for themselves trying to do it on their own.”

Burke said the best part about drug court is that “our people are not reoffending,” adding that “on that alone, the community should be demanding that people be in our program, because it reduces recidivism, particularly of theft crimes and breaking into houses and stealing from their families and breaking into cars.”

According to Burke, only 30-35 percent of drug court participants fully complete the program and graduate, but she added this is higher than the national average that is in the 20s. Burke also said she would consider roughly 80 percent of those going through her drug court as being successful in their recovery, adding that many who don’t wind up graduating “may have been disqualified from the program or exited the program for some reason that was not reoffending or not getting in trouble or failure. And those people are still being successful – much more successful in their recovery than they were before the program.”

Louisville — like many cities throughout the country — is in the midst of a growing opioid epidemic, as both fatal and non-fatal overdoses have risen by alarming rates over the past two years, driven mostly by the use of heroin and fentanyl.

CLOUT’s inaugural “Safe City Roundtable” was held on Monday at the Metro United Way | Photo by Joe Sonka

Despite a growing national movement of addiction treatment professionals and peer-reviewed research touting medication-assisted treatment (MAT) as a best practice in combating dependence on opioids like heroin and prescription painkillers, the large majority of addiction treatment practiced around the country is abstinence-based. As of last spring, less than 2 percent of the 2,420 participants in Kentucky’s specialty courts were in a program utilizing MAT, including only seven in Jefferson County.

Of MAT, Burke said, “We’re not opposed to it and we use it when necessary.”

“We do use medication-assisted treatment when we believe it’s appropriate, but we weigh each person on a case-by-case basis and what that person’s specific needs are,” said Burke. “A lot of our people determine that they don’t want that crutch, and we have people come into the program who are on medication-assisted treatment who ultimately graduated without it by the time they came off it. So it’s a good thing to see.”

Burke said she is “a big fan of Vivitrol,” the non-narcotic monthly injection that blocks the euphoric effects of opioids. Though Suboxone — the brand name of a sublingual film containing the partial agonist opioid buprenorphine — is increasingly hailed by addiction professionals and research as a vital tool in the fight against illicit opioids, Burke said she had “a few” use that drug in treatment. She is opposed to MAT utilizing methadone, saying “we don’t see methadone as being successful” based on the participants who entered the program while using it.

Asked if appropriations from the city budget or individual council members’ discretionary funds should go toward the creation of an emergency fund for drug court participants, Burke said she is “talking with some council members at this time to do that,” adding that ” a judge should not be lobbying for funds, but we’re in the desperate situation of trying to educate them about the fact that we are without these resources.” She said the creation of a steering committee would be ideal in the short term, as “most big successful programs across the country do have those,” which could help in the writing of grant proposals for additional funds.

CLOUT also advocated at the meeting for additional financial support for Centerstone Kentucky’s new Living Room Project, in which police officers can take low-level offenders with mental health or substance abuse issues to their facility, instead of jail, where they can be connected to resources. This pilot project recently received $325,000 in the 2017-2018 fiscal year budget passed by Metro Council, but Centerstone says they will need additional funds to expand the program to its full potential for multiple years. CLOUT also is backing a similar Law Enforcement Assisted Diversion (LEAD) model for LMPD officers to divert low-level drug offenders to treatment, which already is supported by Chief Steve Conrad, whose department has sought a grant to implement such a model for offenders addicted to opioids.

source: https://insiderlouisville.com/metro/drug-court-judge-seeks-emergency-fund-for-participants-in-treatment-program/

Attorneys on Louisville Metro Council Have Taken Double Oaths

Three Metro Council members have taken sworn oaths nearly identical to the one Democrat David James is being scrutinized about as a University of Louisville police officer.

James has sworn to the Kentucky Constitution as a council member and as a major with the campus police department, which both include saying he has not “fought a duel with deadly weapons” among similar pieces of language.

The Jefferson County attorney’s office is arguing that James is holding incompatible public offices, and must relinquish one of the two.

It’s a controversial legal question that has been sent to the Commonwealth Attorney for further review, but some worry that could apply to other elected officials.

“There’s a lot of strange grey area there,” says Councilman Brent Ackerson, D-26, a practicing attorney, adding he doesn’t see much difference in the oath UofL police officers and members of the state bar association take.

Before joining the council Ackerson, along with David Tandy, D-4, and David Yates, D-25, took the following oath:

Here is the oath James took as a UofL police officer:

 

“We’ve got judges who’ve taken the oath as lawyers and as also the oath as judge. Our county attorney is a lawyer and at the same time took an oath of office to be the county attorney,” says Ackerson. “We’ve got part-time prosecutors who work for the city in the morning in traffic court and their own law practice in the afternoon. We’ve got state legislators who are out there.”

Asked if council members who are practicing attorneys should be concerned about the same jobs conflict as James, a spokesman declined to make Jefferson County Attorney Mike O’Connell available for an interview.

But O’Connell’s offices does argues those oaths do not apply to their legal opinion.

“Both Section 165 of the Kentucky Constitution and (state law) provide that no person shall, at the same time, be a state officer and an officer of any county, city or other municipality or an employee thereof. Merely being licensed as a practicing attorney in the Commonwealth does not establish one as a state or local officer,” said county attorney spokesman Bill Patteson.

O’Connell’s office cites several legal opinions rendered by the attorney general’s office in years past on what constitutes a “public office.”

In 2000, it was asked if Kentucky Retirement System trustees are state officers. The attorney general’s office outlined a five-part test in response.

It said the office must be created by the Constitution, state legislature, or a municipality with conferred legislative authority; must possess a portion sovereign power of the government to be exercised by the office holder for the benefit of the public; and the powers and duties of the office must be defined by the authority creating it.

The legal opinion went on to say that the duties of the office must be performed independently and without control of any “superior” public power and the office itself is one of permanency and continuity until the law creating it is repealed.

James’ defense will center more on which offices are compatible rather than the oaths taken, but his legal counsel adds the county attorney’s opinion is still incorrect.

“There is an old doctrine in Kentucky—the notion of what offices are compatible and not compatible—so it is an analysis of the offices more so than just whether someone took an oath or not,” says attorney Todd Lewis, who is representing James. “But I will tell you that our position is that the county attorney was absolutely, one-hundred percent dead wrong about his legal analysis and he was dead wrong about his motives too.”

 

Attorneys on Louisville Metro Council Have Taken Double Oaths

MARSHALL v. O’CONNELL

MARSHALL v. O’CONNELL

Civil Action No. 3:13-CV-802-H.

CONNIE MARSHALL, Plaintiff, v. MIKE O’CONNELL, COUNTY ATTORNEY, COMMONWEALTH OF KY, LOUISVILLE METRO POLICE DEPT, STEVE CONRAD, POLICE CHIEF BRANDON HOGAN, LOUISVILLE METRO POLICE OFFICER, EDWARD WAGNER, LOUISVILLE METRO POLICE OFFICER, POLICE OFFICER UNKNOWN (UNIT 235D and POLICE OFFICER UNKNOWN (UNIT 235F, Defendants.

United States District Court, W.D. Kentucky at Louisville.

October 21, 2014.


Attorney(s) appearing for the Case

Connie Marshall, Plaintiff, Pro Se.

Mike O’Connell, Defendant, represented by Stephen P. Durham , Jefferson County Attorney.

Louisville Metro Police Department, Defendant, represented by Stephen P. Durham , Jefferson County Attorney.

Chief Steve Conrad, Defendant, represented by Stephen P. Durham , Jefferson County Attorney.

Brandon Hogan, Louisville Metro Police Officer, Defendant, represented by Stephen P. Durham , Jefferson County Attorney.

Edward Wagner, Defendant, represented by Stephen P. Durham , Jefferson County Attorney.

Police Officer Unknown, Defendant, represented by Stephen P. Durham , Jefferson County AttorneyStephen P. Durham , Jefferson County Attorney.


MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN, II, Senior District Judge.

Plaintiff, Connie Marshall, has filed no less than twenty-nine (29) pro se lawsuits in the Western District of Kentucky between February 4, 2003 and December 18, 2010. The majority of the lawsuits make the same allegations as those raised in this suit — that the Plaintiff is the target of a vast conspiracy involving false imprisonment, violations of her civil rights, and set ups. So far none has reached even the trial stage. Defendants, Jefferson County Attorney Mike O’Connell, the Commonwealth of Kentucky, Louisville Metro Police Department (“LMPD”), LMPD Chief Steve Conrad, and LMPD Officers Brandon Hogan and Edward Wagner, have moved on all claims against them. Though Plaintiff has not responded, the Court has reviewed the motion to determine its merit. The Court agrees with the arguments set forth in Defendants’ brief. For the reasons that follow and others, Plaintiff’s claims should be dismissed.

I.

On June 25, 2013, Plaintiff filed this lawsuit in Jefferson Circuit Court. Following some discovery, Defendants removed the matter to federal court. Thereafter, this Court granted the Commonwealth of Kentucky’s motion to dismiss on the grounds of immunity. Plaintiff’s claims against O’Connell, the LMPD, Conrad, Hogan, and Wagner remained.

In her complaint, Plaintiff first alleges that excessive force was used against her when she was arrested on June 26, 2012, and just generally alleges that the Louisville Metro Police caused her serious injury. She then goes on to allege that Louisville Metro Police are sending her threatening emails and phone calls and is attempting to set her up. Plaintiff does not cite to any specific officers as engaging in this behavior. Instead, she alleges it against LMPD as a whole. She alleges that alleged violations of state laws and unconstitutional practices have occurred because of the failure of the “Defendants” to properly train, supervise, and discipline individual police officers.

Plaintiff engaged only in limited written discovery and has admitted that she was suing the remaining Defendants only in their official capacities. As part of those same discovery requests, Plaintiff sets forth an arm’s length list of allegations against various police officers, dating back to 2007. She does not list Conrad or O’Connell on her list of officers who have allegedly violated her rights. She later moved to file additional “evidence,” and submitted unverified emails and letters not linked to any of the named Defendants in this case.

II.

Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The issue is whether the evidence submitted presents a sufficient disagreement about the material facts so that submission to a jury is necessary, or whether the evidence is so one-sided that a party must prevail as a matter of law. Anderson, 477 U.S. at 251-52. For a fact to be material it must affect the outcome of the suit; “[f]actual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.

The moving party has the initial burden of showing that there is an absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The non-moving party — Plaintiff here — must proffer evidence that points to disputes of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Plaintiff “may not rest upon mere allegations or denial of his pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248.

Plaintiff filed this lawsuit pro se. Although courts are to hold pro se pleadings “to less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519 (1972), this duty to be less stringent “does not require [courts] to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create a claim for a plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would require courts “to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

III.

Plaintiff names the Louisville Metro Police Department as a defendant. However, that entity is not one capable of being sued. The proper party is the Louisville Jefferson County Metro Government (“Louisville Metro”). See Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (“Since the Police Department is not an entity which may be sued, Jefferson County is the proper party to address the allegations of Matthews’s complaint.”) and Smallwood v. Jefferson County Government, 743 F.Supp. 502, 503 (W.D.Ky.1990).

Sovereign immunity precludes an action “against the state unless the state has given its consent or otherwise waived its immunity.” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001). As political subdivisions of the state, county governments are likewise entitled to sovereign immunity. Id. at 526. Louisville Metro is a consolidated local government established pursuant to K.R.S. Chapter 67C. The General Assembly expressly addressed the applicable immunity of such governments in K.R.S. 67C.101(2)(e), which provides that consolidated local governments “shall be accorded the same sovereign immunity granted counties, their agencies, officers, and employees.” See also Jewish Hosp. Healthcare Services, Inc. v. Louisville/Jefferson County Metro Government, 270 S.W.3d 905, 906 (Ky. App. 2008); Lexington-Fayette Urban County Government v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004).

Under the doctrine of sovereign immunity, Louisville Metro is immune from suit for all state law claims. It appears that Plaintiff attempts to set forth state law claims against Louisville Metro for assault and battery, negligence, and violation of Kentucky statutory and common law, including KRS 446.070. To the extent Plaintiff’s complaint alleges state law claims against Louisville Metro, they must be dismissed.

Plaintiff’s attempt to impose supervisory liability for alleged state tort claims also fails. In Schwindel v. Meade County, 113 S.W.3d 159, 163 (Ky.2003), the Supreme Court stated, “[i]f damages could be recovered against a county on the basis of respondeat superior, the concept of sovereign immunity would be largely nullified because state and county governments perform their ministerial functions by and through their agents, servants, and employees.” (internal citation omitted). Respondeat superior does not and cannot waive the sovereign immunity. Phillips v. Lexington-Fayette Urban County Government, 331 S.W.3d 629, 632 (Ky. App. 2010).

Because Louisville Metro has not waived sovereign immunity for the state law claims set forth in Plaintiff’s complaint, it is entitled to dismissal of all state claims against it set forth in Plaintiff’s complaint.

IV.

Plaintiff’s only federal claim is for violation of 42 U.S.C. § 1983. Plaintiff’s first allegation under § 1983 alleges that the assault and battery amounts to excessive force and is actionable under 42 U.S.C. § 1983. While unclear, it appears that Plaintiff attempts to state this claim against the “City” as well as the Defendant Unknown Officers. Aa municipality can be held liable under § 1983 only when the municipality itself is responsible for the constitutional violation. City of Canton, Ohio v. Harris, 489 U.S. 378 (1989). There is no respondeat superior or vicarious liability under §1983. Bd. of the City Commr. of Bryan County, Okla. v. Brown, 520 U.S. 397 (1997). Accordingly, a municipality is not liable under §1983 unless it can be established that a police officer’s actions were the result of an official municipal policy. Monell v. N.Y.C. Dept. of Social Services, 436 U.S. 658, 694-95 (1978). Because Plaintiff does not make any allegations that Metro had an official policy of assault and battery, the allegations of a violation of § 1983 on that basis must be dismissed.

Mere recitations of inadequate training are insufficient to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009). Under Iqbal, a court must first “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth” as required when evaluating a motion to dismiss. Iqbal, 556 U.S. at 679. Plaintiff’s allegation in her complaint against Metro related to inadequate training is “[d]efendants have tolerated this [misconduct] through their failure to supervise, train, investigate, and discipline police officers adequately which has allowed the officers to violate the Plaintiff, Connie Marshall, for the past eight (8) years and before and continues to date.” [Complaint Document 1-2; Page 19 of 32; PageID #: 25]; and “[t]he violations of state laws and unconstitutional practices in the Complaint have been caused by the failure of the Defendants to properly train supervise and discipline individual police officers in the Louisville Metro Police Department.” [Complaint Document 1-2; Page 22 of 32; PageID #: 28]. These statements are no more than mere conclusions; therefore, are not entitled to an assumption of truth.

Because Plaintiff does not provide anything more in her complaint to support her § 1983 claims against Louisville Metro, those claims must be dismissed. See Weathers v. Anderson, 2012 WL 1593136 at *3 (W.D. Ky. May 4, 2012).

V.

“Official-capacity suits . . . `generally represent [] another way of pleading an action against an entity of which an officer is an agent.'” Kentucky v. Graham, 473 U.S. 159,166 (1985) (quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978). Plaintiffs’ official-capacity claims against Defendants O’Connell, Conrad, Hogan and Wagner, therefore, are actually against Louisville Metro. See Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008) (stating that civil rights suit against county clerk of courts in his official capacity was equivalent of suing clerk’s employer, the county).

When a § 1983 claim is made against a municipality, this Court must analyze two distinct issues: (1) whether Plaintiffs harm was caused by a constitutional violation; and (2) if so, whether the municipality is responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). In essence, this involves a similar analysis to that just discussed.

To demonstrate municipal liability, a plaintiff “must (1) identify the municipal policy or custom, (2) connect the policy to the municipality, and (3) show that his particular injury was incurred due to execution of that policy.” Alkire v. Irving; 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993). However, none of the allegations in the complaint demonstrates that any alleged wrongdoing or injury occurred as a result of a policy or custom implemented or endorsed by Louisville Metro. Accordingly, the complaint fails to establish a basis of liability against the municipality and fails to state a cognizable § 1983 claim. Therefore, the official capacity claims against Defendants O’Connell, Conrad, Hogan and Wagner should be dismissed.

VI.

The complaint contains no factual allegations directly against O’Connell or Conrad. To the extent Plaintiff seeks to hold O’Connell and Conrad liable based on their supervisory position as the chief legal advisor of Jefferson County or Conrad as the chief of the local police department, the doctrine of respondeat superior, or the right to control employees, does not apply in § 1983 actions to impute liability onto supervisors. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. at 691; Taylor v. Mich. Dept. of Corr., 69 F.3d 76, 80-81 (6th Cir. 1995); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). “[S]imple awareness of employees’ misconduct does not lead to supervisor liability.” Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003) (citing Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 728 (6th Cir. 1996). Plaintiff fails to allege that O’Connell and Conrad were directly involved in any of the alleged wrongdoing.

For these reasons, Plaintiff fails to state an individual-capacity claim against either O’Connell or Conrad.

VII.

The complaint contains no indication that Plaintiff intends to impose individual liability on Hogan and Wagner. And the discovery answers in DN 1-3 affirmatively state that the officials are sued in their official capacity. Therefore, should not construe this action as asserting an individual-capacity claim against him. An official-capacity claim against Hogan and Wagner should be dismissed for his failure to allege a municipal policy or custom that resulted in his alleged harm. Alkire v. Irving, 330 F.3d at 815.

To the degree that an individual capacity claim is asserted Hogan and Wagner are entitled to qualified immunity. “Qualified immunity `is an immunity from suit rather than a mere defense to liability.'” Elliott v. Lator, 497 F.3d 644, 650 (6th Cir. 2007) citing Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). In evaluating claims of qualified immunity, the Court must first “determine whether a constitutional violation occurred; second . . . determine whether the right that was violated was a clearly established right of which a reasonable person would have known; finally . . . determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) citing to Dickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir.1996).

Plaintiff has failed to carry her burden of establishing that these Defendants are not entitled to qualified immunity by failing to prove that the officers “violated a clearly established right of which a reasonable person would have known.” Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995) citing to Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994).

Being otherwise sufficiently advised,

IT IS HEREBY ORDERED that Defendants’ motion for summary judgment is SUSTAINED and Plaintiff’s claims are DISMISSED WITH PREJUDICE.

This is a final order.

Police didn’t keep notes or record Scout’s claim against cop now accused of sexual abuse

Two Louisville police officers have been accused of sexually assaulting a teenage boy participating in the police’s Explorer Program. Rachel Aretakis/Courier-Journal

 

Police did not thoroughly document an investigation into whether former Officer Kenneth Betts had improper contact with a 16-year-old Explorer Scout, according to records in a criminal sex abuse case against him and another former officer.

Also, at least one former police investigator who talked to the girl has questioned whether then-Lt. Curtis Flaherty should have been directing the 2013 investigation into her sexual harassment claims at all.

The department’s Public Integrity Unit did not record audio of the interview with the girl and her parents, the records show. And no police notes from the interview are known to exist, either.

Betts and another former officer, Brandon Wood, were indicted this year on several charges of sex abuse in connection with their time as advisers in the Explorer Scout program run by police. Both have pleaded not guilty.

The investigators should have at the very least documented the interview, said retired Capt. Buddy Dumeyer, who was the first commander of the department’s Public Integrity Unit. He also said the investigation shouldn’t have been led by Flaherty, who was head of the integrity unit but was also in charge of the Explorer program for youths interested in law enforcement.

The girl’s mother alleges that Flaherty urged the family to keep quiet about the situation, according to court records.

“If it was something I was involved in, Explorers or anything else, I would say it is best that I recuse myself from being involved in that investigation and let my boss oversee it so that there was no potential conflict of interest,”  Dumeyer said.

Police Chief Steve Conrad’s office declined to comment for this story when contacted by email. Louisville police spokesman Dwight Mitchell said the Courier-Journal’s questions “would require a response that would be premature for us to make” because of the criminal case against Betts and Wood.

Former Explorers in the program have told the Courier-Journal that Flaherty and Betts had a close relationship. The two had known each other since Betts was in the Explorer program, and Flaherty wrote a recommendation letter when Betts joined the force in 2006.

Attorney Lee Sitlinger, who is representing Flaherty, said in an Oct. 14 email that he had not reviewed the documents in the criminal case but that his client was always careful to recuse himself from situations where a potential conflict existed.

Sitlinger said Flaherty — who retired Aug. 1 at the rank of major — took immediate action upon learning of the girl’s allegation.

Attorney David Yates, who has filed a civil suit on behalf of a former Explorer alleging that the police tried to conceal sex abuse in the program, said the documents show Flaherty is entrenched in a cover-up.

“It falls right in line with what I’ve been saying for months that very bad people abused their authority and hurt children, and other people helped them cover it up,” said Yates, who is also the Metro Council president.

When the mother of the teen was re-interviewed by police in 2016, she said Betts had sent her daughter photos of himself “half-dressed” and that the photos were “just kind of sexual-looking pictures.”

But because the 2013 interview was not documented or recorded, it is unknown “what questions may have been asked or what statements were made” by the girl or her mother at the time, according to the court records.

The three officers at the 2013 interview, which occurred in the family’s home, were former integrity unit Sgts. Jacqueline Smith and John Polin and Officer Julie Schmidt, who was an adviser in the Explorer program.

Smith and Polin, who now works in Mayor Greg Fischer’s security detail, said they didn’t record the interview. Smith told investigators last year that she probably took notes on the interview but couldn’t locate them.

Polin referred all questions to the Jefferson County Attorney’s Office, which did not immediately respond to a request for comment. Smith and Schmidt, who has since retired, could not be reached for comment.

In the documents, Schmidt said she attended the interview with the female Explorer at the girl’s request. She told investigators last year that she remembered the girl being very upset about the texts, which Schmidt said included Betts asking the girl to meet him behind a church.

Schmidt said she didn’t remember anybody taking notes.

Dumeyer said that during his time as commander of the Public Integrity Unit, investigators always documented their interviews in some way once a serious allegation was made. He said there were exceptions to recording them, such as when officers are working with uncooperative witnesses or victims at their home, but that written notes were used as a substitute.

“In almost every interview our standard practice was to record all interviews of potential witnesses and victims,” Dumeyer said. “You generally almost always take notes because I can never remember not taking notes.”

Smith, the former integrity unit sergeant, also told investigators that she thought in hindsight that Flaherty wasn’t the best person to make any decisions about the investigation, according to court documents.

Dumeyer told the Courier-Journal it would have been in the police department’s best interest for Flaherty to have turned that initial interview over to a supervisor.

“On that particular part I’m just going to be real frank with you, I would have talked to my boss. … And I think my major would have said, ‘Buddy you’re out,’ ” he said. “And I think in that type of situation you want to have eyes and investigators looking at it who have no connection to the program itself to again avoid any potential conflict of interest.”

Smith, Polin and Schmidt all told investigators last October that after the interview with the girl, they found the situation “highly inappropriate” but didn’t think it rose to the level of a crime, according to the documents.

Smith said she informed Flaherty of the situation after leaving the girl’s home and that she thinks there was a meeting with Flaherty a few days later. Smith says she cannot recall anything discussed at the meeting, only that it was decided the case be forwarded to the Professional Standards Unit, court records show.

In July 2013, Chief Steve Conrad opened a Professional Standards Unit investigation into the girl’s allegation.

Smith, whose son was in the Explorer program, also told investigators last year that she had heard rumors about Betts having inappropriate contact with other Explorers but couldn’t remember if that was before or after interviewing the girl.

Polin told the police investigators he was “surprised to learn there was not a case file prepared for the incident involving Officer Betts” and the female Scout.

Schmidt told investigators she had heard rumors that Officer Wood would have parties at his house and invited Explorers. She said she never brought those rumors to Flaherty’s attention.

The court documents say Schmidt couldn’t recall hearing any rumors about Betts last year, but police noted that she admitted to hearing rumors about “inappropriate conduct” between Betts and past Explorers in an earlier interview into the teenage girl’s allegations with the standards unit.

Other law enforcement officials who spoke with integrity unit investigators said they heard similar talk about Betts and Wood, according to court records.

Richmond Police Officer Casey Scott, a former Explorer, told Louisville investigators he had heard about Betts having an inappropriate sexual encounter with an Explorer.

And an unidentified Louisville officer, who is only identified as an officer in the 5th Division, said there were rumors of Betts trying to “hook up with an Explorer,” according to court records.

In April 2014, Conrad closed the investigation into the girl’s allegation, a month after Betts submitted his resignation. “No further action need be taken,” Conrad said in an internal memo.

Betts later became a reserve officer for Audubon Park Police and was a code enforcement officer for the city of Rolling Hills.  He no longer works for either one and was fired by Rolling Hills in April after the abuse allegations became public.

Reporter Phillip M. Bailey can be reached at 502-582-4475 or pbailey@courier-journal.com.

WDRB: When did mayor learn about LMPD sex abuse allegations? Police chief deposition raises questions

Posted: Nov 22, 2017 4:35 PM ESTUpdated: Nov 22, 2017 5:00 PM EST

Louisville Mayor Greg FischerLouisville Mayor Greg Fischer

LOUISVILLE, Ky. (WDRB) – Louisville Mayor Greg Fischer has said multiple times in recent months that he first learned of sexual abuse allegations in the police department’s Explorer program in October 2016 – just before the scandal became public knowledge.

But in a deposition this week, Metro Police Chief Steve Conrad said he first told Fischer’s chief of staff about the allegations of sex abuse in the police mentoring program in 2013 or 2014, when former Officer Kenneth Betts was under investigation for his involvement in the matter.

While questioned under oath on Tuesday, Conrad said he twice talked with Ellen Hesen, Fischer’s chief of staff, about the investigation into Betts at that time.

Conrad told attorney Thomas Clay he spoke with Hesen “during the beginning of the investigation” in 2013 and near the end, when Betts resigned in 2014.

Hesen did not tell the chief whether she passed along that information to the mayor, Conrad said during the deposition.

Clay said Conrad’s testimony appears to raise “a glaring inconsistency” as to when Fischer was informed of the allegations against the department.

Conrad’s deposition was completed as part of a whistleblower lawsuit filed by LMPD Lt. Jimmy Harper, who claims he was demoted as retaliation for expressing concerns about the department’s management.

In July of 2013, an internal investigation was launched concerning allegations that Betts sent a 16-year-old girl shirtless pictures of himself and asked her to “make out.”

During that investigation, a male teenager told police investigators that Betts offered him money for sex.

There was never an investigation into what the male teen said, and Conrad closed the Betts case “by exception” when the officer resigned in 2014. Conrad wrote in a memo that “no further action was needed.”

In October, while under oath during a deposition in the same case, Fischer testified he had not been briefed on the status of LMPD’s investigation other than to say he was aware it was “ongoing.”

In March, Chris Poynter, a spokesman for Fischer, told WFPL that Fischer “didn’t know the full extent (of the allegations) until the lawsuit was filed that month.

On Tuesday, Conrad said he has met with Hesen two or three times since the investigation began in 2016 and talked with her on the phone about it “dozens” of times.

And Conrad said he met with Fischer himself in person once about the investigation in late 2016, though he did not remember the exact date. Hesen was the only other person present, Conrad testified.

The meeting with the mayor, Conrad said, occurred before Fischer suspended the Youth Explorer program in March, after a former Scout had alleged in a lawsuit that he was raped by two officers and police concealed it.

Poynter said he was unsure which investigation Fischer was being asked about when he said he had not talked with LMPD – the initial 2013 investigation into Betts or the ongoing criminal investigation which began in 2016.

He referred further comment on the mayor’s deposition to the Jefferson County Attorney’s office, which is representing the city in lawsuits filed by alleged victims of sex abuse.

A spokesman for the county attorney’s office did not return a phone message and text seeking comment on Wednesday.

Clay said he was planning to take Hesen’s deposition next.

In March, Fischer told reporters he wanted to “know is what the truth is, and then we will hold people accountable all along the way,” Fischer said. “Where the chips are going to fall, they’re going to fall.”

So far, four lawsuit have been filed against the city and police by alleged victims of sex abuse or misconduct by officers.

In addition, both Betts and former Officer Brandon Wood have been indicted on sex abuse charges.

Copyright 2017 WDRB Media. All rights reserved.

Ky. hospital turns tables, sues lawyers over multiple lawsuits

Jewish Hospital, Louisville, has turned the tables on two lawyers who filed nearly 100 lawsuits against it.The hospital is suing the two attorneys, claiming they never intended to take the cases to trial and were using publicity surrounding the lawsuits to force settlements.

Jeff Polson, spokesman for Jewish Hospital, said the lawsuit against the two lawyers, Joseph White and Michael O’Connell, is aimed at holding them accountable for “false allegations” they made.

“They were given multiple opportunities to substantiate their claims in court and they failed to do so,” Polson said.

White and O’Connell filed 96 lawsuits against Jewish Hospital, with the bulk of the cases involving allegations that patients were infected by a bacteria called methicillin-resistant Staphylococcus aureus.

The two attorneys alleged that Jewish Hospital knew of the infections and did not warn patients, did surgery and housed patients in unclean rooms. Jewish Hospital denied the allegations and 84 of the 96 suits have been dismissed.

Gary Weiss, who represents White and his law firm, said the lawyers have done nothing wrong.

“The fact that you lose a case doesn’t mean that you didn’t have good cause to file it,” Weiss said.

James Grohmann, an attorney for O’Connell, said the lawsuit against the two attorneys should have never been filed.

White and O’Connell met with their clients in December, telling them they were withdrawing from the cases because they couldn’t afford to continue. The remaining cases will be dismissed if new lawyers are not found. — by the Associated Press

O’Connell reverses stance on naming plaintiffs in police sex-abuse case

After initially saying Thursday that former Explorer Scouts who allege abuse in the police youth program should not be allowed to remain anonymous, County Attorney Mike O’Connell backtracked later in the day, issuing a statement that said neither he nor Mayor Greg Fischer want to reveal their names.

O’Connell told reporters after a Jefferson Circuit Court hearing Thursday morning that for fairness, plaintiffs should be identified because police officers who are defendants are identified by name.

“The playing field needs to be leveled,” said O’Connell, who is representing the city in an effort initiated by the Courier-Journal to open a lawsuit filed by a former Scout identified only as N.C., who claimed he was sexually abused by two officers and that the police department concealed it.

But later O’Connell’s office issued a statement saying: “I want to be clear that neither I nor the city want any abuse victims’ identity to be made public” and any decision on that would be made by the court.

“My staff and I work tirelessly every day in the support of victims of sexual assault. Our pleadings, from the very start of this case, have demonstrated this commitment to protecting victims,” O’Connell said in the statement.

Judge Judith McDonald-Burkman delayed until May 3 her ruling on a motion by the Courier-Journal to unseal the March 8 lawsuit,  which was filed by attorney David Yates, who has said he has talked to other former Scouts who said they were abused.

McDonald-Burkman said she wants to hear arguments on whether the state law cited in sealing the lawsuit is unconstitutional.

The law says if a suit is filed alleging an act of child sexual assault or abuse occurred more than five years prior to the date of the lawsuit, the complaint shall be immediately sealed and all filings in the case shall remain sealed if the defendant wins the case and wants it to remain confidential. The only exception is if a higher court orders the case opened.

One of the Courier-Journal’s attorneys, Jon Fleischaker, said the law is invalid because it mandates that suits filed on behalf of alleged childhood sex-abuse victims automatically be sealed, without a hearing, which higher courts have said is not allowed.

The Courier-Journal, which typically does not name victims of sexual abuse in criminal cases, is seeking to unseal the lawsuit but not for the purpose of publishing the names of any plaintiffs, said Executive Editor Joel Christopher. The news organization wants the suit to be open to have access to any additional filings made in the case, Christopher said.

O’Connell said Thursday morning that N.C.’s case should be open because the allegations are serious and the public has a right to know about them. He told reporters afterward that the law cited by Yates in getting the suit sealed was intended to protect defendants, not alleged victims.

Yates, who is also president of the Metro Council, told McDonald-Burkman that he doesn’t necessarily think the statute is constitutional but that the identity of his client — and others he claims to represent — should be protected. Another circuit judge, Barry Willett, previously struck down the state law, but McDonald-Burkman said his decision is not binding in her courtroom.

“There is no public purpose in having them named and victimized again,” Yates said during the hearing.

The Courier-Journal obtained a copy of the suit and reported on its allegations, which include that Wood and Betts sexually abused N.C. in police cruisers and made pornographic videos of their alleged misconduct. The suit also names as defendants Maj. Curtis Flaherty, who supervised the Explorer program for youths interested in law enforcement; and the Boy Scouts of America, which helped run the program.

Last week WDRB Media also filed to unseal the lawsuit, saying it is adopting the Courier-Journal’s arguments that the public has a right to know.

Reporter Andrew Wolfson can be reached at 502-582-7189 or awolfson@courier-journal.com. Reporter Phillip M. Bailey can be reached at 502-582-4475 or pbailey@courier-journal.com.