Cooperation Lexington: Updated #LPDAccountability Demands 7/2/2020                        

We welcome all community input for additions/edits to this updated list of demands. Please submit suggestions to cooperationlexington@gmail.com or text to 859-363-6395

LPD Accountability Background\History

Following over three weeks of sustained peaceful protest in Lexington, recognized by city council on June 18, 2020 (Resolution No. 283-2020) the demands submitted to city council and public officials over one year ago, #LPDAccountability Demands 5/2019 , finally received a response from the president of Bluegrass Fraternal Order of Police Lodge No. 4 Jonathan Bastain, LFUCG attorney Keith Horn, and LPD Police Chief Lawrence Weathers. With the vital information revealed during the Public Safety Committee Meeting on June, 16, 2020, we as a community understand the need to be more specific and direct in our demands to ensure all loopholes in LPD accountability are closed and the Urban County Council lives up the resolution “that racism and injustice within Lexington-Fayette Country are hereby condemned” and this community is “an inclusive, safe environment for everyone, and will address all policies that do not promote equity and equality.”

A chronological history of city council’s involvement in the collective bargaining agreement (CBA) approval and relevant meetings/resolutions/actions to date can be found below:

  • Council voted to give itself authority to accept or reject future CBAs
  • FOP officials discusses possibly challenging this decision
  • CBA expiring June 30, 2011 with negotiations began early July 2012
  • CBA voted on and passed 
  • Mayor Jim Gray issued an executive order to change the CBA
  • Public Safety Committee Meeting
  • City Council has the power to restructure the Lexington Police Department without interfering with, or making changes to the Collective Bargaining Agreement
  • There are no written rules, laws, ordinances, policies, or regulations preventing the delayed investigation into the formal complaints against Chaplain Donovan Stewart involving excessive force and misconduct that occurred February 2019. 
  • Mayor Gorton announced a group she is convening to recommend changes concerning racial equality. This has been amended to a group that assembles the community to “dismantle systemic racism” in Lexington in five areas: Racial Equity, Education and Economics, Health Disparities, Gentrification, and Law Enforcement, Justice, Accountability.
  • Special Committee of the Whole: Public Comment
  • City Councils passes Resolution No 283-2020 “A resolution condemning racism and injustice; committing to make Lexington-Fayette County an inclusive environment and to address policies that do not promote equity and equality; standing steadfast with all citizens of Lexington-Fayette County in the front for racial justice and human rights for all and welcoming input from the community on any necessary policy changes; and authorizing the Mayor and Council to consider implementation of any necessary tools to eliminate racism or ethic discirmination within Lexington-Fayette County.”
  • Mayor Gorton will create an after action review group to examine police discipline policy and procedures. (This review is limited to discipline that reaches councils and only includes a fraction of discipline actions and misconduct in LPD.)
  • June 30, 2020

End date of current CBA aka police contract for police officers and sergeants units

  • October 31, 2020

Term of current CBA aka police contract for lieutenants and captains units

Status of LPD Police Complaints        

Status of 2019 Police Complaints (website accessed June 8, 2020) w/ majority listed as pending:

https://www.lexingtonky.gov/police-personnel 

Links to Relevant Legislative/ Legal Documents/ Open Records Request:

Relevant KRS Statutes

KRS 95.450 Link to KRS 95.450 

KRS 15.520 Link to KRS 15.520 

Relevant KRS Statutes and Links for City Classification

15.430   Law Enforcement Foundation Program fund -- Funds accruing under KRS 42.190 and 136.392 -- Trust and agency fund

15.440 Requirements for participation in fund distribution -- Service and training in another state -- Eligibility of governme 

42.190   Cost projections of Firefighters Foundation Program fund and Law Enforcement Foundation Program fund -- Disposition of funds collected under KRS 136.392 -- Lapsing of certain funds -- Monthly reports

         Kentucky Law Enforcement Council

Kentucky Classification of Cities 

Kentucky Municipal Statutory Law

Audit of Kentucky Law Enforcement Foundation 

Relevant Local Ordinances

Sec. 23-41. - Reprimand or suspension; causes. 

Sec. 23-42. - Dismissal; causes.

Sec. 23-43. - Complaint procedures; police rights 

Sec. 23-44. - Dismissal and other punishments; causes, charges, proceedings.

Sec. 25-22. - Powers and duties of the ethics commission

Sec. 25-23. - Filing and investigation of complaints   

Collective Bargaining Agreement between the city of Lexington and Bluegrass Fraternal Order of Police Lodge No. 4

Link to Current Collective Bargaining Agreement

 Link to 2012 to 2016 Collective Bargaining Agreement 

        Key changes to CBA is 2012 that gave Chief sole authority on police discipline 

Open Records Request for all of LPD from 2015 to June 2020

Open Records Link 

Kentucky Records Retention Schedule

 Lexington Fayette Urban County Government Records Retention Schedule 

Blueprint for removing systemic racism from the Lexington Police Department and increasing #LPDAccountability:

  1. STOP delaying investigations of formal complaints and limiting discipline for officers guilty of misconduct, excessive force, and brutality.
  1. Complete the investigation into Chaplain Donovan Stewart’s misconduct in February 2019. Impose the 60 day time limit on investigations immediately, given the admission in the city council meeting on June 16, 2020 in which the city lawyer admitted, there are no written rules, laws, ordinances, policies, or regulations preventing the delayed investigation into the formal complaints against Chaplain Donovan Stewart. Enact police changes and local ordinances that no longer allow for this loophole in accountability by imposing the 60 day time limit on investigations into informal complaints regardless of criminal trials involving civilians that are victims of the alleged misconduct.
  2. Based upon File #: P.L.U.19.F.013 pertaining to Officer Zachary Flowers, Stewart should receive at minimum “one month suspension without pay, mandatory EPA Counseling and Re-Training.”
  3. We as a community, given Chaplain Stewart’s complete disregard for a child’s safety, violating numerous operational procedures and policies of LPD, demand that changes to local ordinances within the allowances of KRS statutes be amended to include termination of officers guilty of misconduct, excessive force, and brutality in civilian interactions.
  4. Chaplain Donovan Stewart must be terminated from the Lexington Police Department for gross misconduct and excessive force involving a minor.
  5. Considering this ordinance was created in 1982 with LPD’s recent involvement in Bluegrass Conspiracy, and has not been amended since 1987, Local Ordinances 23-41 and 23-42 must reflect policies of a city truly committed to police accountability in 2020.
  1. Currently, KRS 95.450 allows an officer to be “reprimanded, dismissed, suspended, or reduced in grade or pay for...inefficiency, misconduct, insubordination or violation of law”.
  2. Currently, Local ordinance Section 23-41 allows an officer found guilty of using excessive force or brutality in making arrests or handling prisoners to ONLY be disciplined through suspension of no more than 6 months and/ or demotion.
  3. Currently, Local Ordinance 23-42 allows an officer found guilty of “cowardice, inefficiency or neglect in the performance of duty or disobedience of proper orders of a superior.” The terms referencing cowardice, inefficiency or neglect, need to be defined in a way that does not leave interpretation of this ordinance subjective, especially given the current disciplinary process that leaves the police policing themselves.
  4. Currently, the Collective Bargaining Agreement (CBA) Article 15.3A allows for an extension on the 60 day time limit imposed on investigation of formal complaints through a written request to the police chief “when extenuating circumstances requires” such. Specific definitions of the circumstances considered to be “extenuating” must be defined and leave no room for an ongoing criminal trial to delay investigations into misconduct.
  1. Stop limiting discipline that can be imposed for informal complaints and stop the resolving of informal complaints within LPD.
  1. All civilian complaints from March 2019 to March 2020, per OR-20-357 (Open Records Link ), resulted in informal complaints with the exception of a civilian formal complaint filed by a former officer and a civilian complaint that involved a minor and was marked unfounded by LPD, this loophole in accountability must be closed.

  1. End LFUCG being required to “pay costs related to police misconduct including...paying legal fees, and/or costs of settlements.”
  1. Currently, CBA Article 19.1 allows for the city to “provide for the defense of a Member in any action in tort arising out of an act of omission occurring within the scope of his employment.”
  2. CBA Article 19.2 LFUCG pays for settlements and judgements against officers represented by Article 19.1
  3. CBA Article 19.4 gives circumstances in which the city does not have to pay legal fees, settlements, or judgements for officers, but these terms of excluding circumstances need objective definitions.

  1. STOP preventing info on past misconduct investigations from being recorded or retained in an officer’s personnel file. “Keep officers' disciplinary history accessible to police departments and the public.”
  1. Kentucky Local Government Retention Schedules allow documents pertaining to local government personnel’s employee disciplinary file to be retained 60 years from the first date of hire. LFUCG Retention Schedules allow ror formal complaints filed with the Ethics Commission, records are retained for  25 years. Police department Bureau of Administration and Services maintains personnel files 70 years from the date first employed. These same retention schedules allow for formal complaints to retained until 5 years after termination of employment. Informal Complaints are retained until two years after close of investigation. Use of Force Forms/Files are retained for 5 years. Yet, the current CBA has articles that circumvent these retention schedules to make tracking officers accused of misconduct in informal complaints impossible past one year of records.
  1.  CBA Article 15 Section 2 allows for “all letters of counseling” to “be removed from a Member’s personnel file after 12 months from the date of issuance.”
  2. CBA Article 15 Section 3B states that “documented informal complaints received by the Department shall be investigated and resolved at the Bureau level. Action taken at the Bureau level should be accurately documented and maintained in the Bureau/Sector/Unit file. Bureau level action on sustained informal complaints shall be restricted to counseling and remedial training.”
  3. CBA Article 16 Section 1 states that “personnel files and any other employee files and records are the sole responsibility of LFUCG.”
  4. CBA Article 16 Section 2 states that “LFUCG’s responsibilities for employee files include upkeep, retention, production, and purging of files.”
  5. CBA Article 16 Section 5 states that LFUCG “shall follow retention schedules for employee files that comply with applicable laws and regulations.”
  6. CBA Article 16 Section 6 states that “supervisors may maintain one file on each member under their direct supervision and documents contained in the supervisory file shall not be retained after one (1) year from said documentation.”
  7. CBA Article 16 Section 7 states that “no files related to disciplinary matters, to include letters of counseling, coaching and counseling statements, and documentation of informal complaints, shall be maintained at the Bureau level.” Why does LPD create this loophole in accountability with discipline for informal complaints being limited to “counseling” or “coaching”? As referenced above, LFUCG and state guidelines for record retention extend at bare minimum to two years, and at most several decades after employment ends.
  1. This could also be an opportunity to apply 21st Century Policing suggestions in “Data collection, supervision, and accountability are also part of a comprehensive systemic approach to keeping everyone safe and protecting the rights of all involved during police encounters (19).”

 

  1. Stop “limiting disciplinary consequences for officers or limiting the capacity of civilian oversight structures and/or the media to hold police accountable.”
  1. CBA Article 15 Section 3 C,D,E
  1. Changes made in 2012. Documents prior to 2011 are not accessible on legistar to view, must submit open records request. Gave “authority for chief to meet directly with members prior to recommendation of discipline.”
  1. Gives chief option to meet with officer then make disciplinary recommendation
  2. If chief makes no recommendation, or the officer refuses to accept, the completed Internal Affairs investigation goes to the Disciplinary Review Board.
  3. Chief can “accept, reject, or alter” the Disciplinary Review Board recommendation within 30 days.
  4. Only if the officer rejects the recommendation of the chief is the discipline matter sent to city council.
  5. Disciplinary Review Board only includes one person outside of FOP and LPD. A member of the Dept of Law is on the board but has NO VOTING POWER.
  6. Chief decides if formal complaints have enough evidence. If the evidence for a formal complaint is determined insufficient to show misconduct, he can “conclude the disciplinary process.”

CHIEF MUST NO LONGER HAVE ULTIMATE AUTHORITY IN DETERMINING IF A COMPLAINT IS FOUNDED OR UNFOUNDED NOR HAVE ULTIMATE AUTHORITY IN ADMINISTERING DISCIPLINE. 

  1. Implement Breonna’s Law banning no knock warrants. The moratorium is insufficient and temporary protection for black and brown people’s safety in this community.
  2. Defund the police and provide social services the funding needed to intervene in our community when police are not needed. (Further specifics and details to be provided.)
  3. Address the fact FOP President Jonathan Bastian’s pattern of behavior in weaponizing body camera footage to alter, affect, and of intimidate outcomes of the FOP president elections in which he assumed his current position (note the formal complaints found in the Open Records Request link) and releasing edited body camera footage of protests prior to arresting several peaceful protest leaders on false charges.
  4. Educate and empower civilians to utilize the Ethics Commision for filing complaints against LPD officers guilty of misconduct to assist in further civilian oversight beyond the FOP and LPD disciplinary board composed of all white men.
  1. Currently, KRS 95.450 allows for “any person” to “prefer charges against a member of the police...department by filing them with the clerk of the legislative body...The mayor shall, whenever probable cause appears, prefer charges against any member whom he believes guilty of conduct justifying dismissal or punishment.”
  2. Local Ordinance Section 25-22

Powers of Ethics Commission includes initiating “receive and investigate complaints, hold hearings, and make findings of fact and determinations with regard to alleged violations of the provisions” of the Ethics Act. This includes police officers.

  1. Audit of the Kentucky Law Enforcement Foundation Program Fund given that the last audit completed September 29, 2016 identified “a serious lack of oversight and transparency, resulting in poor policies and procedures, circumventing state procurement and hiring laws, and unnecessary expenditures.”