I-Team investigation: Middletown police officer ends 28-year career in a 'veil of secrecy'

Posted at 2:38 PM, Nov 01, 2017
and last updated 2018-12-11 18:36:57-05

Over the last six months, the WCPO I-team has collected records from 40 different police departments and reviewed thousands of disciplinary cases involving officers. Our motives are simple: We want to make sure the people who protect us and enforce our laws are worthy of the high level of trust the public gives them. Read more about this project and why we are doing it here.

MIDDLETOWN, Ohio - Lt. James "Jimmy" Cunningham was once a rising star in the Middletown Police Department, praised in 2001 for his outstanding initiative and "exceptional knowledge of people involved in drug trafficking."

But as he retires from the city after 28 years this month amid a WCPO investigation, questions linger about a sexual harassment scandal that led to his 2014 suspension.

Lt. Jim Cunningham

"It was done under the veil of secrecy," said Adam Gerhardstein, an attorney for seven officers who accused Cunningham of harassing them over several years.

An investigation by an outside law firm led to Cunningham's suspension in October 2014. But even after taking the case to the Ohio Civil Rights Commission in 2015, Gerhardstein said he never got a full picture of what was happening inside the department.

"They haven't turned over notes of interviewers," he said. "There should be transparency with any misconduct alleged against a government officer."

WCPO discovered Cunningham's case as part of a months long investigation into the way area police departments hold their officers accountable for their conduct, both on and off the job.

The I-Team reviewed thousands of disciplinary records from 40 police departments serving the Tri-State, focusing on the agencies in seven metro area counties in Ohio and Kentucky. Reporters studied thousands of incidents involving police in large and small law enforcement agencies.

We weren't sure what we would find when we began collecting these records, but our goal was making sure the public was aware of how law enforcement agencies handle discipline.

Our reporters discovered major differences in the processes and reports departments use when it comes to discipline.

But Cunningham's case stood out because city officials refused to release any information about the law firm's investigation of the sexual harassment allegations. They said the investigation fell under attorney/client privilege and did not qualify as a public record.

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Middletown is one of 10 departments with disciplinary records alleging officers engaged in sex-related behavior. Those 21 records describe incidents that led to four suspensions, three demotions and the resignation or firing of two officers. Eight others received counseling or reprimands, while the records weren't clear on the outcomes of four cases.

Lt. Cunningham's case is by far the most complicated.

He received a 30-day suspension in October 2014, after the city's investigation into sexual harassment complaints led to a secondary investigation into Cunningham's use of force against a homeless woman he arrested for disorderly conduct.

Ultimately, the harassment allegations led to a July 2015 "conciliation agreement" with the Ohio Civil Rights Commission in which Middletown agreed to pay $15,000 in damages and prevent Cunningham from supervising the complaining officers for at least two years. Cunningham was also required to receive 30 hours of training "on anti-discrimination laws, sexual harassment, LGBT awareness, bullying, workplace communications and professionalism," according to the settlement document Middletown supplied to WCPO.

Two years after the settlement, this is the first time the matter has ever been publicly reported. After WCPO began asking questions about Cunningham's discipline, the department announced this week that he will retire on Nov. 1.

Cunningham Retirement Letter by Dan Monk on Scribd

The allegations against Cunningham stayed out of the public eye partly because the officers didn't want media attention, their attorney said. They just wanted to change the culture of the department.

"They weren't looking for a shakedown," Gerhardstein said. "They were looking to feel safe at work. They were able to achieve some of those goals by making sure Lt. Cunningham went through training. They couldn't get him fired. It's just not something the city would agree to. But they were hoping to make things better."

The Middletown officers claimed they were regularly the target of Cunningham's crude sexual comments. Male officers were praised for their size of their penises. Female officers were invited to "wear a bikini to an upcoming training class" or send Cunningham a picture of their breasts.

Officer Christine Sorrell alleged Cunningham targeted her for discipline and lobbied against her pay raise after "one of his friends on the police force began coming on to me and I shot him down."

WCPO attempted to interview Cunningham and Middletown Police Chief Rodney Muterspaw. Both declined.

Middletown City Manager Douglas Adkins defended his handling of the Cunningham case in an April 2015 affidavit.

"Because of his record and length of service, I did not believe that a termination would withstand the arbitration process," Adkins said. "I believed a lengthy suspension and a last chance agreement were more effective tools than an unsuccessful termination."

Last Chance Agreement by Dan Monk on Scribd

A last chance agreement is a contract in which the city gains the waiver of union and civil service protections from an employee in exchange for leniency on disciplinary sanctions. Middletown's agreement with Cunningham allowed the city to more easily fire the lieutenant if he repeated the behaviors that led to his suspension.

But Gerhardstein was skeptical of the arrangement, especially after he learned that Cunningham served most of his 30-day suspension with 25 unused vacation days.

"The city's investigation was designed to protect Lt. Cunningham," Gerhardstein argued in a 2015 filing with the Ohio Civil Rights Commission. "No written reports were collected from the 70 witnesses interviewed by the city and now the city refuses to release any documents from the investigation claiming they are attorney/client privileged."

The city never released investigative reports, but Middletown did provide several hundred pages of records about Lt. Cunningham to WCPO. Hundreds of additional documents came from the Ohio Civil Rights Commission. The records show Cunningham joined Middletown as a corrections officer in 1989 and was promoted to patrol officer in 1994, then sergeant in 2003.

In a 2015 Civil Rights Commission filing, the city noted that Cunningham's "personnel file is full of compliments, commendations and positive reviews." It added that Cunningham "is known to be a demanding supervisor with a strong personality," but he'd never received sexual harassment or discrimination complaints prior to 2014.

The records also show that Cunningham had more than 40 use of force incidents in his record. These incidents are reviewed by supervisors, who determine whether an officer's behavior complies with department policy. In a 2006 internal memo, Major Mark Hoffman said Cunningham had been involved in 44 incidents with "no prior discipline" in the prior 12 years. But Hoffman recommended a 3-day suspension for a Feb. 6, 2006 incident  in which Cunningham punched a teenager in the stomach after a foot pursuit.

The May 2014 incident involving a homeless woman was initially deemed justified by Middletown Lt. John Magill. But that changed after the sexual harassment case heated up in September.

In a March 2015 affidavit, former Middletown Police Chief David VanArsdale said he asked Middletown's law department to investigate sexual harassment allegations when he first learned of them in July 2014. In the course of that investigation, he said city lawyers "became aware of a use of force complaint against Lt. Cunningham," VanArsdale said in the affidavit. "The investigation revealed evidence of an excessive use of force."

VanArsdale Affidavit by Dan Monk on Scribd

An arrest report on May 28, 2014 shows Cunningham's initial account of the incident was that he "moved" a homeless woman's mouth to keep her from spitting on him: "I put my hand across her mouth to prevent her assaulting me and moved it to her right."

That account cleared a supervisory review of the incident when Magill documented that the homeless woman, Jewell Gabbard, "showed no injury" when he visited her jail cell. Magill concluded that the use of force complied with department policy.

But Cunningham's account began to unravel in early September, 2014, when Det. Cris Kelly – who witnessed the incident – told Middletown Police Major Rodney Muterspaw that Cunningham didn't just move the woman's mouth away from him.

"No, he drilled her," Kelly said. Muterspaw, who was promoted to chief nine months ago, documented Kelly's account of the incident in a Sept. 9 email to his former chief, VanArsdale.

"He said in a text message later that he regretted not coming forward earlier," Muterspaw wrote. "Gabbard was mentally ill and should not have been struck."

Two days later on Sept. 11, Gabbard filed a handwritten complaint alleging Cunningham hit her while she was handcuffed on May 28.

"He hit me real hard," Gabbard wrote. "Had a bad headache for a while."

Gabbard complaint against Lt. Cunningham

Gabbard's report was taken by Lt. Leanne Hood, who also happened to be one of the seven officers who accused Cunningham of sexual harassment in the summer of 2014. In a December 2014 affidavit, Hood alleged Cunningham had "a long history of harassing people in the department … Lt. Cunningham has been close friends with Chief David VanArsdale for a long time. They bike together, kayak together and drink together quite a bit when off duty. The chief has made it clear that he supports Cunningham and will not take action against him."

Hood also claimed in the affidavit that Middletown Law Director Les Landen "had prior knowledge of Cunningham's sexual harassment of city employees" and "personally witnessed several incidents" involving a former law department employee. The city has denied that claim and resolved its administrative actions involving the use of force and harassment incidents with Cunningham's last chance agreement in October 2014.

Middletown officials have yet to answer several questions raised by WCPO, including whether the use of force case was ever presented to Butler County prosecutors for possible criminal charges and whether officers who were aware of the incident in May were ever investigated or disciplined for not reporting the incident sooner.

Middletown's city manager criticized WCPO's coverage of police accountability, with a blog post that asserts he will "answer to the citizens of Middletown," not to WCPO.

"We definitely make mistakes," Adkins wrote. "But according to our citizens, we don't make too many of them … We make an average of approximately 13,551 calls between sustained complaints. I'm not sure human beings in daily stressful situations can do much better."

WCPO Web Editors Joe Rosemeyer and Abby Anstead, as well as freelance journalists Laura Consolo, Kevin Eigelbach, Hannah Hagedorn and Roxanna Swift, contributed to this report.