The U.S. Department of Justice and the monitoring team overseeing the Cleveland police consent decree are preparing to take a close look at police discipline and promotions sometime next year.
The plans came to light during a Monday hearing on the consent decree in federal court. The DOJ cited a single officer’s disciplinary case and recent promotion as one example of the need for the impending review.
Cleveland agreed to a series of reforms in its police department in 2015 after a DOJ investigation found there was reasonable cause to believe Cleveland police engaged in excessive use of force that potentially violated the U.S. Constitution and federal law. The city and the DOJ entered into the consent decree to repair community trust and identify and correct problems within the department.
Officials from the city, DOJ and monitoring team were in court Monday to review progress on those reforms, summarized in the monitor’s most recent semiannual report.
The report highlighted several areas of progress, including in record sharing, community and problem-oriented policing, or CPOP, and an expansion of the office that coordinates consent decree work — the Police Accountability Team — to five people.
The monitor has started assessments of the division’s crisis intervention, use of force and search and seizure procedures and plans to complete all three by next year.
“We are completely finished with all of the policies that have needed to be written for the consent decree,” said Leigh Anderson, the head of the Police Accountability Team, during a Sept. 20 press conference. “We have also been applauded for the training on those policies and their implementation. And now we are moving into the assessment phase.”
But during Monday’s hearing, it became clear the city has not yet updated its officer promotion policies.
"We acknowledge the concerns of the Monitoring Team and DOJ, and will make the appropriate revisions and updates to our promotional policies, procedures, and processes going forward to not only ensure compliance with the decree, but to promote integrity within our Division of Police," said city spokesperson Tyler Sinclair.
"We have had discussions about this with several stakeholders, both externally and internally, and are evaluating options as we work to build on the sustained progress highlighted in the Monitoring Team’s most recent semiannual report released last week – in which the City just received 14 upgrades and 0 downgrades towards compliance with the consent decree," Sinclair said.
In May, Cleveland police promoted Officer Kevin Fedorko from patrol officer to sergeant, according to DOJ attorney Michelle Heyer, in apparent violation of paragraph 318 of the consent decree, which requires the consideration of disciplinary record, interpersonal skills and support for departmental integrity measures, among other factors.
Fedorko first came to the attention of the monitoring team and DOJ in 2018, according to documents filed by the monitoring team in federal court. In 2017, Fedorko, along with several other officers, was responding to a call for service from the mother of Jo-Nathan Luton. During the attempted arrest of Luton, Fedorko injured his toe. In subsequent reports and worker’s compensation paperwork, Fedorko blamed the injury on Luton, according to court documents. Luton was charged with assaulting a police officer.
“An investigation by the Division’s Internal Affairs Unit (“IAU”) identified evidence that Officer #1 [Fedorko], then a four-year veteran of the Division, wrote a false report and made false statements — which resulted in the incarceration of the complainant [Luton] for a period of over eight (8) months,” the monitor wrote in a 2020 court filing. “The criminal case against the complainant was eventually dismissed, on February 8, 2018, after it was determined that the primary evidence against him was likely falsified by [Fedorko].”
The Internal Affairs Unit found, based on body camera footage, text messages and an interview with one of the officers, that Fedorko’s injury was actually caused by another officer at the scene and Fedorko knew that.
Fedorko was written up for 17 policy violations and in 2018 then-Chief Calvin Williams recommended his termination. Any disciplinary decision greater than a 10-day suspension goes to the public safety director, who was at the time Michael McGrath. McGrath decided instead to suspend Fedorko for 30 days.
“After reviewing the Internal Affairs file, the Monitoring Team was unable to identify any reasonable rationale for the plea agreements reached,” the monitor wrote in their 2020 filing.
At Monday’s hearing, Heyer referenced that backstory when criticizing the division’s decision to promote Fedorko from patrol officer to sergeant.
“This kind of promotion can undermine all of the positive work the city has done,” Heyer told the district court judge overseeing the consent decree, Solomon Oliver.
Chief of Police Dorothy Todd, who took over the department earlier this year, defended the decision to promote Fedorko seven years after the incident.
“At what point do you consider someone reformed?” Todd asked the court. “At what point do you tell an officer they are never eligible for promotion?”
The response did not sit well with Black Lives Matter Cleveland President LaTonya Goldsby, who attended Monday's court hearing.
"That sounds to me like the blue code of silence," Goldsby said. "Her response yesterday was like a slap in the face to the community, about how long that this officer has had to suffer."
Judge Oliver seemed to side with the city initially, saying that the key was to get the decision right “in the first place.”
“The discipline was not meted out,” Oliver said. “Now, do you discipline someone at the promotional level when he didn’t get discipline earlier on?”
Assistant Public Safety Director Jason Shachner said he was tasked, when he was hired in August, with crafting a promotions policy that takes into account civil service rules, the union contract, the requirements of the consent decree and details about an officer’s history. He said the city plans to have policies in place some time next year.
The consent decree has 10 “broad areas” that will undergo assessment, including the three already started and discipline and promotions planned for next year, and the monitor plans to cover all those areas before completing its work on the consent decree, said monitor Karl Racine.
