Louisville Metro Government claims an investigation that led to a police major’s demotion contained no written report or recommendation and has refused to release notes from the Human Resources investigator.

Now, The Courier Journal is appealing the matter to the state Attorney General’s Office, and a Metro Council committee is slated to discuss the matter at a hearing Tuesday.

Attorney Michael Abate, who is representing The Courier Journal, said he’s concerned the city’s handling of then-Maj. Aubrey Gregory’s case signals a “new era,” where agencies avoid transparency “simply by not creating records in the first place.” 

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Gregory was demoted to lieutenant in June by Chief Erika Shields, who wrote in a letter obtained by The Courier Journal that it was determined Gregory used “inappropriate and offensive language.” 

He now plans to resign, effective July 31, according to his attorney, Thomas Clay.

The incident remains shrouded in secrecy, however, as Shields’ letter to Gregory included no details on the nature of the incident, including the language used or the context. And officials claim no applicable records outlining such findings exist, including notes taken by the investigator who conducted the probe.

The law has been clear for decades that when an internal investigation is completed, the public is entitled to the records that formed the basis for a disciplinary decision, Abate said.

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LMPD has fought that practice for 40 years. That appeared to change in April when Mayor Greg Fischer announced the city would begin releasing completed investigative files in full for cases of employee misconduct. 

But the Gregory investigation, Abate and fellow attorneys Jon Fleischaker and Rick Adams wrote, seems to be a “deliberate step in the opposite direction, perhaps in order to avoid the implications of the mayor’s newly announced policy.” 

“In virtually the first opportunity out of the gate, we’ve now encountered an investigation where it appears they went out of their way not to create records so that there would be nothing to disclose at the end of it,” Abate told The Courier Journal Monday. 

Police didn’t explain why the Professional Standards Unit, which investigates potential policy violations, was bypassed, nor do officials explain why records weren’t created, the written appeal states.

“That leaves the public with the unfortunate impression that LMPD took these actions specifically to avoid creating records that would later have to be disclosed,” the written appeal said.

The timing — “on the heels” of Fischer’s announcement — raises “real questions” about why this was the approach the city took and who made the decision to proceed that way, Abate added. 

Shields and Metro Human Resources Director Ernestine Booth-Henry are expected to answer questions about the Gregory investigation at a 5 p.m. Government Oversight and Accountability Committee meeting, Council President David James said.

James, a former narcotics officer and FOP president, said this is the first time he’s aware of LMPD using Human Resources to investigate a police officer’s behavior.

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“We need to understand what the administration’s motivations were, especially when we’ve had all these discussions about transparency,” he said. 

Attorneys for The Courier Journal contend in the written appeal that city officials can’t state the notes from the Gregory investigation were the only records created and then state those notes weren’t used to reach any final decision. 

“It would be truly shocking to learn that an LMPD major can be demoted from one of the department’s highest ranks based on nothing but unsubstantiated hearsay and rumor,” the written appeal said.

“If these notes are in fact the only records of the Gregory investigation that exist, they have lost their preliminary status and should be released immediately.” 

In response to a Courier Journal records request, the city wrote that Metro Human Resources “orally shared with LMPD the information obtained during the factual inquiry,” and that “no final report or memorandum detailing the inquiry was written nor any recommendations made.” 

It’s not clear why Human Resources conducted a “factual inquiry into the veracity and context” surrounding the allegation, rather than a full investigation into an employee’s alleged misconduct. It’s also unclear why the decision was made to deliver the findings orally rather than in a written format. 

Jean Porter, a spokeswoman for Mayor Greg Fischer’s office, told The Courier Journal in June a Human Resources employee did the inquiry “because we wanted to remove any concerns of LMPD investigating one of its own commanders.” 

But Porter did not respond directly to questions about why it was not a full investigation, or whether the public deserves to know the full context of Gregory’s language.

The Police Bill of Rights in state law and in the police contract stipulates charges of policy violations must be made in writing and agencies must conduct a hearing before any action is taken against an officer. 

The union contract goes further, requiring recorded statements from officers, complainants and witnesses.

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If the city didn’t adhere to those legal obligations, it could have violated Gregory’s due process rights, Courier Journal attorneys said, and officials are required to explain why the Metro Government can’t produce those records.

“The public has a right to know if LMPD is taking steps to avoid creating records that would otherwise show the public the facts — and not just the outcome — of its investigations,” the appeal said.

As for the investigator’s notes, which were described by the city as a “memory aid,” attorneys argued it’s not proper to claim a preliminary exemption. The records would become final when disciplinary action — such as a demotion — is taken. 

“Here, they took action against this officer. Whatever it was, it wasn’t an informal inquiry,” Abate said. “It was a discipline case.” 

Darcy Costello: 502-582-4834; [email protected]; Twitter: @dctello.