KyCIR In 2019: Our Year In Investigations Friday, Dec 27 2019 

In 2019, the KyCIR team broke news on politics, horse racing, criminal justice and more. Take a look back with us at some of the year’s biggest and most impactful investigations.

Criminal Justice

For Louisville Offenders And Victims Alike, A New Label: ‘Public Nuisance’

Louisville’s public nuisance ordinance is intended to provide a way to bust up drug houses and crime dens. But police and code enforcement officials have been increasingly focused on residential locations where crimes are reported — regardless of whether the victim or the offender lives there.

Reporter Jacob Ryan found examples where grieving families were issued nuisance violations after a murder or fatal overdose. Domestic violence victims got violations after calling police for help. And city officials encouraged landlords to evict drug users who committed minor offenses.

Louisville Metro Police Department and city code enforcement officials have vowed to examine how they’ve been using nuisance violations, particularly when it comes to victims of crime. 

Conviction Or Not, Seized Cash Is ‘Cost of Doing Business’ In Louisville

J. Tyler Franklin

Theron Carson sits on the floor with his daughter watching cartoons. Carson was charged with trafficking marijuana and had $1,200 seized from his home after the police smelled weed coming from his Newburg apartment and conducted a search.

Kentucky law allows law enforcement agencies to keep the cash seized by officers: 85 percent goes to police and 15 percent to prosecutors. Critics say these laws create a perverse incentive for police to seize, which they can do whether or not they bring criminal charges as long as they’ve got reason to believe cash is related to drug trafficking.

Ryan dug into the use of asset forfeiture and found that seized money provides leverage in resolving drug trafficking cases and has become an ingrained aspect of the justice system in Louisville. When officers seize money, they’re required by law to use it for direct law enforcement purposes. But Ryan reviewed $3.7 million in spending records and found that agencies take varied interpretations of that law.

Louisville Police Expected A Grow Operation. They Found Christmas Lights.

Officers said thermal images showed a heat signature “indicative of cultivating marijuana” at Tyrone Evans’s house. When they returned a few days later, early in the morning on New Year’s Day, they did not find any physical evidence of a “grow” operation. Instead, they found Christmas lights. Evans and his family were traumatized by the police search. 

KyCIR intern Jewél Jackson examined this case and LMPD’s use of helicopters and thermal imaging to find suspected grow houses. 

Sexual Assault Investigations

Illustration by Carrie Neumayer

Although 194 rapes were reported in 2017, only four people have been convicted of those rapes.

Prosecution Declined

LMPD asks prosecutors to review their rape cases and decide whether they should make an arrest. More often than not, the prosecutors say no. In this yearlong investigation — the subject of the first season of Dig — we share what reporter Eleanor Klibanoff learned: here, the police defer to prosecutors on rape cases, and prosecutors reject the vast majority of cases presented to them. It’s a very different system than most similar cities, where the police decide who to arrest. 

In Louisville, our investigation found, most people accused of rape here will never face consequences. Most won’t be arrested or convicted. And the case will be closed anyway.

Lacking Sexual Assault Nurses, Some Ky. Hospitals Illegally Turn Victims Away

Klibanoff shined some light on other issues related to sexual assault. She learned that some emergency rooms were turning away rape victims, in violation of state law, when they didn’t have a specially trained nurse on staff. And Kentucky has essentially created a new backlog of rape kits while clearing out the old backlog: kits are averaging seven months to testing.

Government and Politics

Former Staffer Alleges Sexual Assault, ‘Nearly Daily Touching’ By Ky. Rep. Jeff Hoover In Sealed Deposition

J. Tyler Franklin

Jeff Hoover on 2016 election night

Early this year, reporters R.G. Dunlop and Ryland Barton obtained a document few people outside the statehouse had seen: the sealed deposition of a former legislative staffer describing in detail what she called sexual harassment and assault by the then-Speaker of the House, State Rep. Jeff Hoover.

The deposition included new details about the staffer’s allegations against Hoover and a few other Republican legislators that led to a secret settlement, an ethics investigation and resignations. Three legislators filed a lawsuit against the staffer, Marissa Espinosa, alleging she disclosed details of a secret settlement dealing with the harassment allegations. They dropped the suit in September.

With Race Horse Deaths Under Scrutiny, Kentucky Keeps Details Secret

Equibase

A still image from a video of Kinley Karole’s first, and last, race on May 16, 2019. The filly was euthanized.

Kentucky is widely considered to be the center of the thoroughbred horse-racing world. But reporter Caitlin McGlade found in a story this June that our state was among the most secretive when it comes to horse deaths. 

A Horse Racing Commission official cited a Kentucky state law that protects competitive information from disclosure in refusing to turn over details from the necropsies, and said releasing that information could put trainers and owners at a competitive disadvantage.

After our investigation, the Kentucky Horse Racing Commission began releasing details about horse-racing fatalities.

At Dangerous Kentucky Dams, Locals Aren’t Prepared For Disaster

Caitlin McGlade

The Loch Mary dam spillway is deteriorating.

Eighty Kentucky dams have deficiencies and are deemed high-hazard, because a breach would threaten lives or property. Only six of those dams had complete emergency plans when reporter Caitlin McGlade went looking for them this summer.

State records and more than two dozen interviews with local emergency management officials showed that emergency responders largely lacked detailed plans for responding to a crisis at those dams. Precisely how many people in Kentucky are living at risk is unclear without those plans, as one of their functions is to scientifically identify where the flood waters would go during a breach.

Fixes are now underway at one dam we highlighted in western Kentucky

Ky. Worker Safety Leaders Promise Grieving Families They’ll Do Better

Mike and Pam Oakley talked for years about how Kentucky’s worker safety agency failed their 17-year-old son, Grant Oakley, who died on his second day of work. State officials never listened. They’re listening now.

After our “Fatal Flaws” investigation revealed serious failings in the state’s investigations of worker deaths, the agency promised to raise the bar with pay raises and more training. Then, the state’s safety commissioner acknowledged these problems and promised a culture change.

And when Workers Memorial Day came around, the state’s top safety officials drove to Garrard County to pay their respects to the Oakleys and assure grieving families they mean what they’ve said.

Our Newsroom

This year brought some big successes when it comes to collaboration and growth.

We joined ProPublica’s Local Reporting Network, and R.G. Dunlop is hard at work on our ProPublica collaboration. We became a host newsroom for Report For America, and the new reporter will cover social issues in Kentucky. We look forward to welcoming our first RFA fellow next spring. And we launched our new podcast: Dig will take on a brand new investigation each season. 

Ideas for what we should investigate in 2020? Send us an email at investigate@kycir.org.

J. Tyler Franklin

KyCIR team, 2019

The post KyCIR In 2019: Our Year In Investigations appeared first on Kentucky Center for Investigative Reporting.

For Louisville Offenders And Victims Alike, A New Label: ‘Public Nuisance’ Wednesday, Dec 18 2019 

Jacob Ryan

Andrea Swain’s Shawnee home was deemed a nuisance after her 17-year-old son had people over while she was out of town, and someone fired a gun in her backyard.

A woman shot and killed in her grandmother’s Valley Station home. A man dead of a suspected overdose in his sister’s home in Pleasure Ridge Park. A woman who told police she was strangled to the point of losing consciousness after refusing to have sex with her ex-boyfriend, who she still lived with.

In each of these cases, Louisville Metro Police officers responded. And each time, they decided the home — where the domestic violence victim or grieving loved ones lived — ought to be deemed a “public nuisance.”

Louisville’s public nuisance ordinance is intended to provide a way to bust up drug houses and crime dens. But police and code enforcement officials have been increasingly focused on residential locations where crimes are reported — regardless of whether the victim or the offender lives there.

While some nuisance cases involve stereotypical drug houses where drugs are manufactured or sold in high quantities, many stem from simple possession of drugs, paraphernalia or low-level trafficking offenses, a KyCIR review of nearly three years worth of nuisance cases shows.

In at least three dozen cases since 2017, the nuisance cases have stemmed from domestic violence, often putting housing at risk for victims in addition to perpetrators.

For renters, this has huge ramifications: after LMPD asks Louisville Metro Department of Codes and Regulations to issue a nuisance violation, its office sends a registered letter to property owners. The letter says the property has been deemed a public nuisance, and offers a defense: evict the tenants within 75 days.

Codes and Regulations records

A portion of a violation issued in September 2019

If they don’t abate the issue, property owners face civil penalties starting at $400 and criminal fines as high as $1,000 a day, according to the letter.

The review shows that city agencies aren’t always following the terms of the ordinance, which requires two police interactions within a year before action is taken. Records show that, while city officials say the registered letter is just a warning, the code enforcement department is informing property owners the property has already been deemed a nuisance in that letter, and landlords are evicting tenants in response.

Department of Codes and Regulations

Portion of violation letter issued by Codes and Regulations

And the violations are issued seemingly randomly, given that the 200-plus violations issued this year don’t come close to the number of eligible police interactions in Louisville.

This is “utterly sickening,” said Councilwoman Jessica Green, a Democrat who represents District 1 in west Louisville.

Green voted for expanding the ordinance in both 2017 and 2018. She said she thought the ordinance was intended to go after businesses, and she had no idea how it’s been implemented.

“The application of this goes beyond decency and really common sense,” Green said. “This is a travesty, a real travesty.”

Officials from code enforcement and LMPD both said they’d examine how their enforcement is affecting victims of crime after learning of KyCIR’s findings. But they otherwise defended their use of the ordinance as a tool to address problem properties.

Codes and Regulations Director Robert Kirchdorfer said the nuisance ordinance is key to addressing problems for residents who live near homes with criminal activity. People might begin to reevaluate their lives if they’re forced to move every time they get in trouble, Kirchdorfer said.

And LMPD spokesperson Jessie Halladay said the ordinance is a creative and important tool that goes beyond “locking people up.”

“We can go in and make those arrests or do those citations, but then you just leave the environment there,” Halladay said.

But local housing experts and advocates for victims of violence said treating eviction like a crime-fighting device is bad policy that leads to housing instability for the city’s most vulnerable.

Nearly all nuisance cases come at the request of the Louisville Metro Police Department.

“This is insidious that we’re using the police force to evict people,” said Cathy Hinko, executive director of the Metropolitan Housing Coalition. “It doesn’t seem to fit in with everything else that we’re trying to do in Louisville to help stabilize families and people.”

It’s unclear how many nuisance cases led to an eviction because code enforcement officials don’t track the outcomes. At least 20 cases reviewed by KyCIR included documentation that a tenant was evicted, but homeowners don’t always submit the documentation.

Jerimy Austin, the city’s code enforcement supervisor, estimates at least half of all nuisance cases result in an eviction.

And enforcement of the ordinance is ramping up: police and code enforcement officials have issued more nuisance violations this year than they did in the previous two years combined.

Most Crimes Now Eligible As ‘Nuisance’

Louisville’s public nuisance ordinance has been in place for decades, but for much of its history, it focused on prostitution, alcohol, gambling and felony drug offenses.

In 2015, Metro Council added parameters for which hotels and motels would be considered nuisances. It also added murder and assault to the list of crimes that justify a nuisance case at a particular property.

By 2018, new language further expanded the list of reasons a property could be considered a public nuisance: code enforcement officials can now also consider misdemeanor drug crimes, possessing drug paraphernalia, theft, sexual offenses, and unlicensed massage therapy as the basis of a nuisance case.

Though much of the public discussion of the ordinance has focused on hotels, motels, and troublesome convenience stores, it’s almost always used against residential properties, the KyCIR review found. About 84% of cases are in the county’s western half, where studies show residents are more likely to be poor, black, or disabled, and less likely to own their home.

Green, the councilwoman, said she refuses to believe that nuisance crimes are largely occurring only in homes in west and southwest Louisville.

“Who is doing the screening process?” she said. “Who gets to ride off into the sunset because they check the box of being affluent, white, East End?”

When LMPD officers suggest possible nuisance cases, resource officers from each division screen them and pass them on to code enforcement. Louisville Metro Police Sgt. Christina Beaven, who until recently was the First Division Resource Officer, which includes portions of west Louisville, said the expanded ordinance was a “huge win” for LMPD. Nuisance cases actually allow them to help citizens in poorer areas of the city, where absentee landlords might ignore problem tenants, Beaven said.

“It’s not fair that they can’t have the quality of life we have in other parts of the city,” Beaven said. “Nobody would ever put up in the East End with having a drug house move in next door to them.”

But one expert on nuisance ordinances said this ordinance as written could be having a disproportionate impact in neighborhoods where police are more present.

Megan Hatch, an associate professor at Cleveland State University’s department of urban studies, researches nuisance ordinances, and she reviewed Louisville’s public nuisance ordinance at KyCIR’s request. She noted that it allows broad enforcement for nearly any run-in with police — and not just for arrests and confirmed crimes, but any time a police report is written.

A police report can be written for nearly anything, Hatch said.

“This is a little harsher than some,” she said.

And it’s unclear what leads one property to be considered as a nuisance over another with a similar history.

In October 2017, police filed an incident report after responding to the scene of a shooting in the Parkland neighborhood. The victim became “uncooperative” after he was confronted with inconsistencies in his account, according to the incident report, and he refused to participate in the investigation.

Later that month, he received a letter informing him of the nuisance violation.

When asked if a nuisance violation is used as an added penalty when people don’t want to cooperate with police, Halladay of LMPD said it’s useful to force the hand of a landlord who isn’t willing to make changes.

“Not everyone willingly wants to fix an issue,” Halladay said. “Public nuisance is designed to say, ‘Hey, what’s going on here isn’t acceptable by this community’s standards because we passed the law on this and we would like you to make some changes, or there will be some penalty.’”

Relying on nuisance laws to counter some of society’s most pressing issues is misguided and shortsighted, said Marie Claire Tran-Leung, a senior attorney with the Shriver Center on Poverty Law, a Chicago-based economic advocacy group.

“It’s not a way to actually address problems that are in a community,” she said. “It’s just a way to sort of put a Band-Aid on things.”

And it could cause some vulnerable people to be unwilling to call police when they need help.

Advocates: Eviction Threat Could Stop Victims From Seeking Help

Elizabeth Wessels-Martin, the president of the Center for Women and Families, said she was unaware that the city’s nuisance laws were being enforced after domestic violence incidents.

It’s unrealistic, she said, to expect victims to bear the burden of resolving a nuisance case.

“Domestic violence relationships are very complicated and very intertwined,” she said.

Some victims may depend on their abuser for financial support, or perhaps they fear their children may be taken away if they report abuse, Wessels-Martin said.

Adding the threat of eviction could absolutely prevent victims from seeking help, she said.

“It pushes victims to stay with the perpetrators because they don’t have anywhere else to go,” she said. “They don’t want to be homeless.”

In Louisville, the number of people experiencing homelessness due to domestic violence has increased steadily since 2014, according to research from the University of Louisville’s School of Public Health and Information Sciences.

In 2018, more than 1,580 people spent time in a homeless shelter due to domestic violence, which is a 17 percent increase compared with the year prior.

LMPD and codes officials said they would consider revisiting the issue as it pertains to victims.

Kirchdorfer of the codes department said he didn’t know his department was using the nuisance ordinance against victims of crime, particularly domestic violence.

“I think on these, we need to have some further followup with LMPD,” Kirchdorfer said. “We don’t want to cause any problems if someone’s been victimized.”

Austin, the supervisor of the nuisance program, said he reviews each case before issuing the violation notice to ensure the charges qualify as a public nuisance.

Domestic violence incidents can qualify a property as a public nuisance, under the ordinance, because all assault-related offenses can be considered a nuisance. But Austin said he’s never approved a notice in a domestic violence case since he took over the role in May. Records show his office has, before and since Austin’s tenure.

Halladay, the LMPD spokesperson, said the enforcement “may have some adverse consequences for those people who get caught up in other people’s behavior.”

“If we need to review how domestic violence has been impacted… we’re totally open to that,” Halladay said. That is not our intention, to put people in a position of greater hardship.”

With Little History Of Problems, Families Surprised By Notices

Andrea Swain was out of town when her cozy, tidy Shawnee home was labeled a public nuisance.

Swain is a homeowner, and she likes the neighborhood, close to downtown and the interstate. She recently replaced the hardwood floors, and photos of family line the shelves. On the wall near the front door is a framed, old newspaper article featuring her son when he was younger, with a violin tucked beneath his chin.

“We’re just a normal family,” Swain said. “We get up and take care of our yard and talk to our neighbors. We are not a nuisance.”

She was visiting family out of state when the police showed up to her house in March 2018. In her absence, her son, then 17, had friends over for a night of socializing and smoking weed.

One of the teens grabbed a pistol and fired it into the dirt in the backyard.

Swain’s house is on a street equipped with ShotSpotter, a gunshot detection system largely reserved for the city’s highest-crime blocks. The police showed up, and cited the teens for possession of marijuana. Swain’s son was cited for possessing the gun as a minor.

Two days later, the city sent Swain a letter, informing her that her home was a public nuisance because of the incident. Swain doesn’t condone what her son did, but she’s also not sure how that one incident qualifies her home as a nuisance.

But it’s allowable under the ordinance, which requires two police interactions within 12 months. Police records show they had visited Swain’s home on three different occasions. Twice, they came in response to burglar alarms. The other time, they were asked to make a welfare check on Swain, who suffers from lupus and brain cancer, after she missed a doctor’s appointment and didn’t answer the phone.

Since Swain owns the home, she’s not at risk of eviction. But she risks a $400 fine if the police are called to her home again.

“I would be highly pissed if something like that happened,” she said. “Four hundred dollars is a lot of money.”

The threat wouldn’t necessarily deter Swain from calling for help, if she needed to. But she doesn’t think it’s fair.

Far down Dixie Highway, beyond the strip clubs and factories, Kenneth Allen Sr. lives in a 700-square-foot home built on the steep bank of the Ohio River. There are no other homes in sight, but his home has nonetheless been deemed a public nuisance, too.

This February, Louisville Metro Police and the United States Postal Inspection Service showed up at his door for a “knock and talk,” according to police records.

They alleged that Allen, 79, trafficked in controlled substances after they seized eight pain pills he tried to mail to his son in Florida.

Allen couldn’t be reached for comment. His wife, Diana Allen, said she thought the nuisance violation was unwarranted, and amounted to police harassment.

Allen’s landlord, Ted Hayes, received a letter alerting him that the property had been deemed a public nuisance, and noting that a defense to the violation would be evicting Allen. He refused.

“Why would you evict someone for that?” Hayes asked. “The man wasn’t dealing drugs out of my property. [The police] know that, he’s not a drug dealer.”

Hayes received that letter shortly after Allen was charged — well before Allen’s trafficking charge was amended down to not keeping his prescription pills in the proper container.

Hayes had his attorney send a letter to the code enforcement department letting them know he was not going to evict Allen. He said he never heard anything else.

Landlords Say Enforcement Is Complicated For Business

Enforcement is complicated for property owners, who might welcome the added information from law enforcement but are also trying to run their private business as they see fit.

“I like to know what’s going on,” said Lisa Thornton, who manages nearly 40 properties in the city, three of which have been deemed a public nuisance.

In October, at a house she owns in southwest Louisville, police arrested a 24-year-old woman for possession of methamphetamine, according to police records. After receiving the notice of the public nuisance, Thornton contacted the tenant — the arrested woman’s mother — to find out what happened.

As Thornton tells it, her tenant’s daughter was visiting, and when she refused to leave, the tenant called the police to escort her out. She had outstanding warrants, and the police arrested her. Then, they found meth on her, and issued a nuisance violation against the house where her mother lived.

Thornton decided not to evict the woman she called a wonderful, long-term tenant who keeps her house clean.

But Thornton said she doesn’t want to be perceived as a landlord “that turns a blind eye.” So she told her tenant her daughter was no longer permitted to visit — even though the tenant is caring for her daughter’s child.

“I like to go by the law,” she said.

Toni Raybon owns a handful of properties in western and southwest Louisville. She said it’s unfair to saddle landlords with potential fines if tenants fail to adhere to the city’s standards.

So when police served a search warrant in October 2017 on her tenants and found drugs and guns, Raybon promptly evicted. She felt like doing so was her only option.

“I don’t want to be associated with that,” she said.

Richard Sturgeon was glad to receive a public nuisance violation on a home he used to own on Blue Lick Road in far south Jefferson County. He said he suspected his tenants were dealing drugs, and he was quick to evict after LMPD charged the man with trafficking methamphetamines.

“It gave me an excuse to get rid of them,” he said. “You can’t blame me for idiots like that.”

The ordinance also wields power over property owners who live in their properties.

Police asked codes in March 2018 to issue a nuisance violation to a home on West Madison Street. Beaven of LMPD said its occupant was one of the most notorious drug dealers in the Russell neighborhood.

“We all knew he was dealing drugs,” she said. “Because of the public nuisance ordinance, we were able to dislocate him from that area.”

But, property records show that he was not exactly pushed out — at least not immediately.

In the midst of the case, he bought the house from his landlord.

He was cited, and then codes issued him an “order to vacate” in February — he wasn’t allowed to live in the house he owned. Or, at least, he wasn’t allowed to live in that house: property records show he owns three others, including one on the same block.

Eviction doesn’t necessarily resolve the problem, according to Hinko, the housing advocate.

“It’s just a waterbed,” Hinko said. “You push down here, it rises somewhere else. People are just moving around, because you’re not intervening in a meaningful way.”

Rules Unclear Even To Enforcers

According to Louisville’s ordinance, properties are considered a nuisance after two incidents with police within a year.

Code officials are supposed to issue a warning after the first notification from police, notifying the property owner that “further violations will constitute a public nuisance.” After a second report from police, code officials should notify the owner that the property is a public nuisance — and that the public nuisance must be abated. If it isn’t, property owners risk fines or even an order to vacate.

But interpretations of that ordinance vary depending on whom you ask.

Beaven, the LMPD sergeant, said just one visit from police can result in a public nuisance violation — but LMPD officers wouldn’t do that “arbitrarily,” she said, unless they knew there was a problem.

Austin, the Code Enforcement supervisor, said “there is no set number” of incidents needed at a property to trigger a nuisance violation.

But the ordinance clearly mandates that a property must be the site of at least two police incidents within a year before it can be considered a public nuisance.

Austin said he doesn’t know how many runs LMPD has made before they ask his office to issue a violation, and the violations only include detail about the one police interaction that led to the violation.

“We just go by what LMPD sends us,” he said.

While Kirchdorfer of the codes department said the letter his office sends is indeed a warning, as the ordinance prescribes, the letter specifically says the property has been deemed a nuisance and offers eviction as a defense, a review of the records shows.

Louisville City Council President David James didn’t respond to a call for comment. Green, the chair of the council’s public safety committee, said city employees need to understand the ordinance language — and follow it.

“If we have employees out there that are violating what the code says, shame on them,” she said. “They should be dealt with.”

But the confusion extends all the way through the appeals process.

Jacob Ryan

Charles Barbee

Dozens of police officers scaled Charles Barbee’s fence in June 2018, rifles in hand, looking for signs he was selling drugs.

The police found no drugs inside his Pleasure Ridge Park home after executing that search warrant. But records show police found weed and two guns in a truck in the driveway.

Barbee is a felon, and he was arrested and charged with illegal possession of a handgun, trafficking marijuana and possession of drug paraphernalia. He spent the night in jail. Three weeks later, city officials sent his landlord a public nuisance violation notice.

Barbee’s landlord is his son, Andrew Barbee. He appealed, using the process laid out in the registered letter he received.

Records show he’s one of only about a dozen property owners to take that step, since that’s how many cases the city’s Code Enforcement Board has reviewed out of nearly 500 nuisance cases since 2017.

The penalties laid out in the violation letter are also rarely enforced: only 25 of the cases have resulted in a $400 fine, records show. Five were eventually issued an order to vacate.

In February, Andrew Barbee’s attorney, Stephen Ryan, argued to the enforcement board that the charges against Charles Barbee weren’t lawful.

Jeremy Kirkham, the board chair, questioned how the property could even be considered a public nuisance.

Only one incident involving police was listed on the violation notice, and the ordinance requires at least two. Kirkham turned to Wesley Barbour, the Code Enforcement official present at the hearing, to explain how the case met the definition of the ordinance.

Barbour fell silent, and searched the ordinance for nearly two minutes. Then, he said the notice is only meant to alert property owners that an additional incident involving police would constitute their property being listed as a public nuisance.

The letter Andrew Barbee received clearly stated the city “has deemed your property … a public nuisance.” It made no mention that at least two incidents with police are required before a property can be considered a public nuisance. And an unknown number of landlords have evicted their tenants on the basis of similar letters.

Upon hearing Barbour’s explanation, Kirkham ruled the Barbees were never deemed a nuisance in the first place. They had nothing to appeal.

Ryan, the attorney, said he and his client would be satisfied — although, he noted, “I don’t really understand.”

The Code Enforcement Board chair laughed.

“Apparently we don’t either,” he said.

Caitlin McGlade contributed to this report. Contact Jacob Ryan at (502) 814.6559 or jryan@kycir.org.

 

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State Cabinets Appeal Order To Pay KyCIR’s Legal Fees Tuesday, Sep 10 2019 

Two state cabinets are appealing a judge’s order that they must reimburse the Kentucky Center for Investigative Reporting for legal costs after withholding public records.

Franklin Circuit Court Judge Phillip J. Shepherd ruled this spring that the Labor and Finance and Administration cabinets “willfully” violated open records laws when they refused to release the names of employees accused of sexual harassment, but internal investigations didn’t deem the allegations substantiated.

Shepherd ordered the Labor Cabinet to pay more than $17,000, and the Finance and Administration Cabinet to pay more than $19,000, to KyCIR for legal costs and penalties.

In a Monday filing, the Labor Cabinet said that Shepherd’s decision to award fees was an “abuse of discretion.” The cabinet argued that it operated in “good faith” in its decision to withhold records, and should not be punished for its interpretation of the law.

That cabinet has already turned over the name it previously withheld of a staffer accused of sexual harassment. Court records show that Hector Fonseca was under a court order to stay away from a woman who accused him of domestic violence when a coworker in September 2016 said Fonseca exposed himself and forced her to touch his genitals. In the two years that followed, he was charged with domestic violence, driving under the influence and felony child abuse, records show.

He was allowed to transfer to another cabinet at the conclusion of the internal investigation.

The Finance and Administration Cabinet has yet to release unredacted versions of its sexual harassment files. In its Monday filing, cabinet officials argued that they should not have to release the names because of employee privacy concerns.

“Public employees do not categorically surrender all their privacy rights by choosing to serve the Commonwealth,” the cabinet argued in its appeal.

The lawsuits stem from a 2017 open records request by KyCIR, which asked every state agency to turn over six years of sexual harassment complaints and related documents. Some agencies provided the names of all employees accused of harassment; others, such as the Labor and Finance and Administration cabinets, refused to name employees unless an internal investigation determined they committed sexual harassment.

KyCIR appealed those redactions to the Kentucky Attorney General’s office, which told the cabinets they had to release the information. Both cabinets then sued KyCIR rather than providing the records.

Shepherd ruled in KyCIR’s favor in both lawsuits, saying that the public has the right to know if internal investigations are “thorough, unbiased and competent.”

KyCIR’s attorney, Michael Abate, said decades of case law and attorney general’s decisions make it “crystal clear” that investigations about allegations of employee misconduct should be public.

“When we’re talking about public employees that are accused of misconduct, there are two overarching issues,” Abate said. “One is understanding what the public employee is alleged to have done in the course of their duties and the other is understanding how the agency investigated it. Was it fair was it thorough? Was it impartial? What did they consider? What did they not?”

Disclosing this information is essential for the public to understand whether its government is truly acting in the public interest, Abate said.

Contact reporter Caitlin McGlade at (502) 814.6541 or cmcglade@kycir.org.

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KyCIR Amplify: Sexual Assault Survivor Meghan Wright, On Getting A Rape Kit Tuesday, Sep 3 2019 

 

J. Tyler Franklin

Megan Wright

After Meghan Wright was sexually assaulted in 2006, she went to Murray Calloway County Hospital to get checked out. A certified sexual assault nurse examiner (SANE) treated her, and gathered forensic evidence for a rape kit.

“It’s not just that nobody else could take that evidence,” Wright said. “You want somebody that knows what they’re doing and feels comfortable doing it, because that exudes confidence enough that, even the littlest bit, you might be more at ease.”

Only one-third of Kentucky counties are served by a hospital with a SANE nurse, a KyCIR investigation found. Some hospitals without SANE nurses direct patients to other hospitals for the forensic sexual assault exam, in violation of the law.

Wright said she wouldn’t have been able to get up and go to a second location after her traumatic assault.

“I don’t know that survivors should be asked to have the courage to make that decision twice in one day,” she said. “It’s not fair.”

Listen in the sound player above to Wright describing the experience of her forensic exam. Warning: the audio story contains descriptions of sexual assault.

Our investigations seek to protect society’s most vulnerable citizens, expose wrongdoing and increase transparency.

Amplify brings you the voices of the Kentuckians who feel the effects of the failures we reveal and secrets we expose. Hear more.

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Lacking Sexual Assault Nurses, Some Ky. Hospitals Illegally Turn Victims Away Tuesday, Sep 3 2019 

When a woman walked into Baptist Health’s hospital in suburban Louisville last year and said she’d been raped, the hospital did what they usually did: started calling around to see if there was another hospital they could send her to.

Since Baptist Health didn’t have a trained sexual assault nurse examiner (SANE) available, nursing director Denise Carter said the woman would need to go to another hospital to get a forensic sexual assault exam.

“Just to see the trauma and how distraught she was, and then to have to say, ‘I’m sorry, we have to send you to another hospital in the community,’ it just felt really wrong,” Carter said.

It was wrong.

Kentucky state law requires emergency rooms to perform forensic sexual assault exams on-site and free of charge. It’s intended to ensure victims can get a forensic exam no matter which hospital they report to. But nurses, advocates and survivors say the response at Kentucky’s hospitals is unpredictable.

A KyCIR investigation found the majority of Kentucky hospitals don’t employ a SANE nurse, and several hospitals, including Baptist Health Louisville, have used the lack of SANE nurses as a reason to send patients elsewhere. But a doctor, advanced practice registered nurse or physician’s assistant can perform the exam.

“I don’t know that I would have had the courage to get up from one hospital and go to another,” said Megan Wright, an advocate and member of the Attorney General’s Survivor’s Council.

J. Tyler Franklin

Megan Wright

After Wright was sexually assaulted in 2006, a friend convinced her to go to Murray Calloway County Hospital to get checked out. She was treated by a SANE nurse, who took photos, asked personal questions and took DNA samples.

The exam was dehumanizing, she said. But she also remembers feeling like the SANE nurse was fully focused on her. She was not made to feel like an inconvenience.

“I don’t know that survivors should be asked to have the courage to make that decision twice in one day,” Wright said. “It’s not fair.”

Some Hospitals Turn Patients Away

In late August, the Office of the Attorney General announced a video training intended to help hospitals improve treatment for rape victims.

“It’s 2 a.m.,” the narrator says. “Your emergency room is already busy when a patient arrives seeking help after a sexual assault. Do your medical personnel know how to provide appropriate care?”

Appropriate care starts — “first and foremost” — with always providing forensic exams, even if the facility doesn’t have specially trained staff, the video says.

The video was produced by the Kentucky Association of Sexual Assault Programs, along with the Kentucky Hospital Association, and funded through the Office of the Attorney General. It walks healthcare providers through the process, and acknowledges that doctors may be unfamiliar or uncomfortable with the sexual assault exams, which include medical treatment, documenting injuries and gathering evidence for a rape kit.

But they have to conduct the exams anyway.

“Some hospitals consider having a SANE to do the exam as the higher level of care, and if they don’t have that higher level of care, they should be sending [victims] someplace else,” said Eileen Recktenwald, the executive director of the Kentucky Association of Sexual Assault Programs. “There was a lot of misunderstanding on the part of hospitals, so we tried to address that.”

At Baptist Health Louisville, one of Kentucky’s largest acute care facilities, Carter said the doctors weren’t comfortable conducting the forensic exams, and she respected that. She didn’t know Baptist Health Louisville was violating state law by sending patients away.

But the experience moved her to act.

She got Baptist to pay for four nurses to do the weeklong SANE training. The hospital now has two SANE nurses able to do the exams, Carter said. Two more are nearly done with the certification process, Carter said, and then the hospital will have a SANE nurse available around the clock.

“It’s tough [for victims] to admit that this happened,” Carter said. “So then for us to turn around and say, ‘Well, we have to send you elsewhere,’ we just don’t like that at all.”

That’s exactly the situation the law is intended to prevent, particularly in rural areas where the nearest hospital might be far away.

KyCIR found that SANE nurses are working in just one-third of Kentucky’s 120 counties. Hospitals in 17 counties didn’t return calls, but state data indicates most of them likely don’t have SANE nurses either. Many of the state’s SANE nurses are clustered at a few hospitals, leaving large swaths of the state without that specialized care.

That leaves other healthcare providers to perform the exam — or to illegally discharge patients to another location.

Advocates told KyCIR that confusion about the law and hesitation on the part of healthcare providers can have the same effect on victims as hospitals that explicitly sent them away.

Recently, Jillian Carden was at a hospital with a victim and saw firsthand how hospitals can discourage patients from seeking treatment. Carden is the executive director at Silverleaf, the rape crisis center in Elizabethtown that serves eight surrounding counties. State regulations require hospitals to request an advocate from the local rape crisis center when a victim discloses a sexual assault.

Carden declined to name the hospital, since her work requires maintaining good relationships with area hospitals.

She said hospital staff told her and the victim they were calling around to find a SANE nurse who could do the exam. They waited. Hours later, a physician came in and suggested the woman go to a different hospital, Carden said. The doctor asked if Carden could take her there. She explained that she could not.

“When the victim finally said, ‘I don’t have a means to get there,’ the physician kind of reluctantly said, ‘Okay, well, we’ll do this,’” Carden said.

In the end, Carden said the exam went fine. The doctor’s bedside manner was exceptional. She just wished they’d had that attitude from the beginning.

“If you’re met with victim-blaming statements, limited support, no resources, and then you add in the exam, you’re probably going to leave with a sense that this was all too much,” she said. “And the sense that, ‘I don’t ever want to experience that again. I just need to keep this to myself.’”

Nurses On-Call 24/7

SANE nurses are considered the best option for treating sexual assault victims, both because they’re specially trained in trauma-informed care and it avoids tying up a physician for the hourslong process.

But Kentucky has what Recktenwald calls a “SANE shortage,” and many hospitals have few or none of these specialized nurses.

Half of the hospitals with SANE nurses on staff or on contract told KyCIR they rely on just one nurse to respond to all calls, according to KyCIR interviews with 79 of Kentucky’s 97 acute care hospitals.

And sometimes, multiple hospitals in different counties rely on the same nurse.

Rhonda Sims is currently the only SANE nurse serving two hospitals in north-central Kentucky: Fleming County Hospital and Meadowview Regional Medical Center in Mason County, about half an hour’s drive away from each other. She’s a nursing professor and works for the hospitals on contract.

Sims got the certification 14 years ago, after reading a story in the newspaper about a rape victim being turned away from a hospital. She’s been shepherding victims through the process ever since.

“I want them to know that they’re safe with me,” Sims said.

Sims said her caseload is manageable. She says she sees 12 to 15 patients a year for sexual assault exams at Meadowview, and fewer than five a year at Fleming County.

But other SANE nurses say the burden of working solo burned them out.

KyCIR sent a survey to all of the state’s 290 certified sexual assault nurse examiners. That survey showed at least 10 percent of Kentucky’s certified SANE nurses are not actively practicing.

Multiple respondents cited the long hours, lack of extra pay for extra work and minimal institutional support as the reasons they stopped performing the sexual assault exams.

Michelle Grise was the only on-call SANE nurse at Trigg County Hospital in western Kentucky for most of the three years she worked there. She was already certified when she started at the emergency room in Cadiz, and she became the on-call SANE nurse “by default,” she said.

Grise was on-call for these exams 24/7. At the same time, Grise was the chief nursing officer, a mom and in the midst of becoming a nurse practitioner.

She only missed one exam, while she was out of state. But she still called the ER nurse to help her prepare.

Since she was salaried, she did not get paid extra to come in on her off-hours to do the exams.

“It could be a bit stressful if I was awake all day and then I’d get called in, and then spend six or seven hours in the middle of the night doing the exam,” Grise said. “But somebody needs you and you’re the only one who can help. You just get it done.”

Grise left Trigg County earlier this year to focus on school full-time. A spokesperson said the hospital has a few SANE nurses they can call to do the exam as needed, but doctors do it if they’re not available.

Asked if she felt relieved to have her free time back, Grise said no.

“I feel guilty,” she said.

When Costs Burden Hospitals, Nurses Pay

Becoming a certified SANE nurse requires a substantial commitment: a 40-hour class that costs about $250, and clinical requirements that include meeting with police, observing a trial and practicing genital exams.

Nearly half of the 61 nurses who answered our survey questions about training costs said they paid for the class and certification out of their own pockets. They also largely weren’t given paid time off, which exacerbated the cost.

Melissa Gilpin, who coordinated and taught SANE trainings for the Kentucky Association of Sexual Assault Programs until recently, said it wasn’t unusual to have nurses sign up and pay the tuition themselves, only to drop out when they learn their employer wouldn’t give them the time off.

Removing a nurse from regular shifts for a week can be difficult for a struggling community hospital, according to Donna Meador, the director of the Kentucky Hospital Improvement Innovation Network with the Kentucky Hospital Association.

“We’d love to see some source of funding for that, because for some hospitals, it’s not financially feasible for them to be able to provide that,” Meador said.

Hospitals are not incentivized to take on these costs; the reimbursement from the state’s crime victims’ compensation fund is up to $200 for the provider’s time, plus additional reimbursements for the medical procedures and other aspects of the exam.

But research shows that the value of employing SANE nurses extends beyond the hospital’s walls. Communities with SANE programs see an increase in prosecution of sexual assault cases, according to Rebecca Campbell, a professor of psychology at Michigan State University who researches how legal and medical systems affect victims of sexual assault.

“They are very skilled at knowing where and how to collect that evidence correctly,” she said. “That is instrumental for police and prosecutors in being able to build a good investigation and in securing [high] conviction rates.”

Victims treated by SANE nurses also can see better health outcomes: they report lower rates of post-assault anxiety and distress and are more likely to be connected with resources that prevent pregnancy and sexually transmitted diseases, Campbell said.

Several Kentucky hospitals have decided the investment is worthwhile, if not profitable.

Investing In Special Training

Many of the state’s SANE nurses are clustered at a few hospitals that have invested heavily in hiring, training and retaining them.

Hospitals in Louisville, Lexington, Pikeville, London, Elizabethtown and northern Kentucky have built robust rosters of SANE nurses that are able to perform forensic sexual assault exams 24 hours a day.

“We’re not really a moneymaker,” said Jill Brummett, the forensic nurse manager for the St. Elizabeth system in northern Kentucky. “The hospital eats the cost because they know it’s a necessary service.”

Brummett leads a team of 20 SANE nurses that respond to five emergency rooms in northern Kentucky. She said they have provided a SANE nurse for every patient who has needed one since the program started in 2002.

The hospital pays for the nurses to get the training, and time off for the class. In return, the nurses commit to being on call 24 hours a month. They recently started paying the nurses an on-call rate whether or not there is an exam to be done.

The funding comes from the hospital, its foundation and grants generated by the hospital’s grant writers, Brummett said.

“Our budget is probably always in the red, but they don’t ever say anything,” she said. “Part of our mission at [St. Elizabeth] is to have one of the healthiest communities in Kentucky, and this is part of that.”

University of Louisville Hospital has 18 SANE nurses, and coordinator Amanda Corzine says she knows that’s not something every hospital can replicate. To that end, Corzine is trying to build a consortium to share SANE nurses among all the city’s hospitals. Her nurses already respond to the Center for Women and Families as needed.

Beyond that, SANE access in Louisville is not guaranteed. The entire Norton system has one full-time SANE nurse; Jewish Hospital and Sts. Mary and Elizabeth Hospital don’t have any.

“I don’t think the burden should be on the victim to know what hospital to show up at,” Corzine said.

Demand Follows Good Care

In KyCIR interviews with hospital administrators and nursing directors around the state, many said they don’t see enough demand to have SANE nurses on staff.

“We’re such a small, rural facility, the frequency in which we see those situations, thankfully, is so low, we don’t feel [SANEs] could stay competent in their skills,” said Doug James, chief nursing officer at Caldwell Medical Center in Princeton.

James said the emergency room physicians conduct exams for sexual assault victims a couple of times a year.

Other hospitals said a single SANE nurse is sufficient in their communities.

“We don’t have those problems in Fleming County, knock on wood,” said Brian Springate, the CEO of Fleming County Hospital, where Sims is the on-call SANE nurse. “It’s very, very uncommon that we have to utilize that service, though it is something you do want to be able to provide.”

But the U.S. Department of Justice estimates that more than 75 percent of rapes go unreported, and experts say this attitude can become a self-fulfilling prophecy that allows hospitals to ignore a very real problem in their backyard.

“Maybe you see one a year in your ER because the people in your community aren’t comfortable coming there for this,” said Gilpin, the SANE educator. “Or maybe they do come and then they opt not to have an exam because they’re not given resources, and they don’t feel confident in the care that they’re going to receive.”

And one hospital that has built and promoted a SANE nurse program has seen the opposite — more and more rape victims willing to come and ask for an exam.

Hardin Memorial Hospital in Elizabethtown began investing heavily in a SANE nurse program in 2015. They sent nurses to training, developed a 24/7 on-call schedule and, during the hospital’s recent renovation, built two exam rooms specifically for sexual assault victims.

Director Sarah Tovar said her goal was to see the number of exams increase: not because there were more victims of sexual assault, but because more people knew about their program.

“We want to get out to the community that, ‘Hey, we’re here, we will give you these services. We want you to report,’” Tovar said.

In the program’s first year, they saw 48 sexual assault victims, which was a typical load for the hospital.

Last year, Tovar said, they provided exams for 122.

Jewél Jackson contributed to this report. Contact Eleanor Klibanoff at eklibanoff@kycir.org or (502) 814.6544.

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KyCIR Is Joining ProPublica’s Local Reporting Network Friday, Jun 7 2019 

The Kentucky Center for Investigative Reporting has been awarded a grant from ProPublica to join its Local Reporting Network.

KyCIR is one of six newsrooms announced today as new members of the ProPublica’s Local Reporting Network project. The national nonprofit newsroom selected a KyCIR investigation from nearly 140 applications from local newsrooms around the country to join the collaborative.

“KyCIR is thrilled for the chance to work with ProPublica and devote significant resources to a project with the potential to highlight problems that affect Kentuckians, and spur meaningful change,” said Kate Howard, managing editor for KyCIR.

R.G. Dunlop

The lead reporter on the ProPublica collaboration will be R.G. Dunlop, an award-winning investigative reporter whose work has exposed government corruption and resulted in numerous reforms. ProPublica will reimburse Dunlop’s salary for the next year as he works on the project.

Dunlop won a Peabody Award last year for “The Pope’s Long Con,” a five-part investigation and podcast. He is a three-time finalist for the Pulitzer Prize and was twice a member of teams that won George Polk Awards while a reporter at the Courier Journal. He has been with KyCIR since its founding in 2013.

Dunlop will continue to work in KyCIR’s newsroom, but ProPublica will offer extensive guidance and support on reporting and editing, engagement and data analysis. The work will be published by ProPublica simultaneously to its broadcast on 89.3 WFPL and published on KyCIR.org.

The other newsrooms selected and reporters are:

  • The Arizona Republic, Alden Woods
  • The Capital (Annapolis, Maryland), Danielle Ohl
  • The Frontier (Tulsa, Oklahoma), Brianna Bailey
  • Miami Herald, Carol Marbin Miller
  • Oregon Public Broadcasting, Tony Schick

Dunlop and Howard will work on the project with Local Reporting Network editor Zahira Torres. Before ProPublica, she was editor of the El Paso Times and enterprise editor for USA Today Network’s Texas/New Mexico newspapers. During her tenure, Torres was part of a team that developed and edited “The Wall: Untold Stories, Unintended Consequences,” which won the 2018 Pulitzer Prize for Explanatory Reporting.

“I am excited to work with these newsrooms to realize their ambitious visions for local journalism,” Torres said. “We reviewed a highly competitive field of applications and we’re delighted to work on this diverse range of important projects.”

Other newsrooms recently awarded grants from ProPublica through the Local Reporting Network include the Courier Journal, WNYC, the Charleston Gazette-Mail and the New Orleans Times-Picayune.

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With Race Horse Deaths Under Scrutiny, Kentucky Keeps Details Secret Tuesday, Jun 4 2019 

Equibase

A still image from a video of Kinley Karole’s first, and last, race on May 16, 2019. The filly was euthanized.

It was Kinley Karole’s first race, ever.

On a Thursday nearly two weeks after the Kentucky Derby, the crowd at Churchill Downs was sparse. The 3-year-old filly came out of the gate slow. For the first minute, she trailed far behind the pack.

When she started to catch up, her back leg snapped.

Dennis Trusty, a regular bettor at Churchill Downs, lurched away from his spot close to the rail, punched a wall and stormed down to the paddock. Too painful to watch.

He was certain the filly would be euthanized from the way her leg bent backwards.

“I knew what happened; it’s just I wanted to be sure what happened,” he said.

He scanned social media, checked industry blogs. Nothing.

If Kinley Karole had died in other states with major races, her death would become public record. Officials from California, Illinois, New Jersey, Maryland and New York share which horses die, where and when. The Kentucky Horse Racing Commission largely keeps that secret, saying state law protects the business interests of their trainers and owners.

The Courier-Journal in March reported that 43 thoroughbreds had died at Churchill Downs since 2016. Last month, The Kentucky Center for Investigative Reporting requested records that would further detail the circumstances of those deaths: race horse necropsies filed by veterinarians, and data the state submits to an industry database that tracks race horse death and injuries.

The commission refused to release the data, calling the submissions “drafts,” which would exempt them from disclosure under Kentucky’s Open Records Act. The commission also said state law makes veterinarians’ relationships with clients confidential.

Officials did agree to release the death reports, which include medical descriptions of the horses’ problems and the track conditions. But the commission redacted other key information: name, age, sex, time and date of death, race number, the track name and the owner’s name.

Shawn Chapman, the Kentucky Horse Racing Commission’s deputy general counsel, cited a Kentucky state law that protects competitive information from disclosure in refusing to turn over details from the necropsies.

He said releasing that information could put trainers and owners at a competitive disadvantage. He declined to answer additional questions.

Susan West, a spokesperson for the Public Protection Cabinet, which oversees the Kentucky Horse Racing Commission, said in an emailed statement that other states keep the names of injured and dead horses confidential too. She did not specify which states.

West also noted that the agency will confirm the deaths of specific horses when asked; she confirmed that Kinley Karole died after that race at Churchill Downs last month.

But the horse racing commission’s position on open records makes it harder for the public to hold accountable some of the racing industry’s biggest players, said Amye Bensenhaver, with the Kentucky Open Government Coalition.

“In establishing these impediments to access, they are tipping the balance in favor of the industry rather than the public’s right to know,” Bensenhaver said.

New York, home of the Belmont Stakes, takes the opposite approach.

When New York-based trainer Robert Barbara’s horse, Tommy T, died at the Aqueduct Racetrack in Queens, the details were entered into a publicly available database maintained by the New York State Gaming Commission.

The database says Tommy T broke a leg bone on January 27 and was euthanized on the track.

Barbara told KyCIR that he doesn’t feel at a disadvantage simply because anyone can go online and see how many of his horses died or got injured in New York.

Besides Tommy T, Barbara has lost two other horses since 2016 and had a few others that incurred injuries.

“If it’s out there, it’s out there,” Barbara said. “If people go to the internet and see this stuff, and see that I’ve had five horses break down in two years or whatever, and another guy that has the same record as me never had a horse break down, will it mean something to somebody? I guess. Does it bother me? No, it doesn’t. It is what it is.”

In Other States, Horse Fatality Details Freely Shared

A spate of deaths at Santa Anita Park in California recently sparked widespread scrutiny on fatalities and health impacts of various drugs administered to race horses.

Track fatalities in Kentucky are on the rise: they nearly doubled from 23 in 2017 to 38 in 2018, according to statistics in veterinary reports obtained through a public records request.

Mary Scollay, the racing commission’s equine medical director, declined an interview with KyCIR. She instead asked for emailed questions but did not respond.

In February, Scollay told the Paulick Report, a race industry trade publication, that she couldn’t find much that stuck out about the horses that died.

She noted the only commonality among the dead was their age: the horses dying are younger than usual.

The age group most at risk for fatal injuries is shifting to 2 and 3-year-olds rather than 3 and 4-year-olds, according to the Paulick Report story. The Kentucky Horse Racing Commission blacked out the ages of the horses that died in the records provided to KyCIR.

The public should be able to independently look for trends, Bensenhaver said.

“We have to have access to these records to enable us to assess at every level how these responsibilities are being discharged; how seriously [state officials] are undertaking this effort to expose what the problem is.”

Officials from other major racing states interviewed by KyCIR all said basic details and the identities of horses that die are not confidential.

A spokesman for Maryland’s racing commission handed over a list of all horse racing deaths in 2018, with dates, locations, injury types and horse names, after a phone call. An official from California, too, quickly turned over names of the dead from Santa Anita Park.

The spokesman said names and dates of death at other tracks, as long as the deaths were not under investigation, would be available after submitting a public records request.

In Arkansas, a state official with the Arkansas Racing Commission said the agency would share the details, although they didn’t respond to a public records request prior to publication.

Several state officials remarked that they release details because they value transparency.

“Absolutely. we’re 100 percent transparent when it comes to the information … Horse name, trainer, the track, what kind of race …. It should be made public,” said Mickey Ezzo, projects manager for the Illinois Racing Commission.

A spokesman from New York’s gaming commission, which launched its injury and death database in 2009, wrote in an email that the racing community widely accepts the transparency.

Officials from other states said they seldom hear complaints for sharing.

“Not one,” said Ezzo, from the Illinois Racing Commission. “I’ve been doing this for 20 years and never gotten any complaints from horsemen when that information was released to the public.”

The Jockey Club, which is the thoroughbred breed registry for thoroughbreds in North America, encourages race tracks to post their death and injury statistics. Only Keeneland and Turfway Park in Kentucky share their statistics; Churchill Downs does not. A Churchill Downs spokesperson did not respond to requests for comment.

Jockey Club President James Gagliano said his website does not publish information on individual cases but he couldn’t understand how Kentucky could argue that identifying horses that die and where they died would create competitive disadvantages.

“I really question the wisdom of a statement like that,” Gagliano said. “These are facts and there is nothing wrong with reporting the facts.”

‘Went Wrong’

Even in the midst of the nationwide controversy over horse deaths, Kinley Karole’s death two weeks after the Derby didn’t make the news.

The only place it was reported was on Patrick Battuello’s anti-horse racing website, HorseRacingWrongs.com. Battuello scours the internet for information. Churchill Downs’ daily racing chart, posted to a major bettor website, said the filly “went wrong entering the lane, was pulled up and vanned off.”

Some states’ racing charts just say horses were euthanized. But not Kentucky’s, according to Battuello’s research. “Went wrong,” he says, is code for euthanized.

Caitlin McGlade

Larry Demeritte trains horses at the Thoroughbred Center in Lexington. He lost a horse in May when she broke her leg during a race at Churchill Downs

Larry Demeritte, who trained the three-year-old filly who recently died at Churchill Downs, didn’t have any problem putting it plainly: Her leg “snapped off,” he said.

“It was ugly. I couldn’t even go look at her. It was just too painful to see.”

Demeritte trains 10 horses at his stables at the Thoroughbred Center in Lexington, surrounded by rolling green hills and white fences. He said he bonds with each of his horses; that they all have their own quirks, their own way of expressing themselves to him.

He patted his chest as he searched for the words.

“That’s like one of your kids you just lost … People don’t know,” he said. “These animals we spend more time around them than we do ourselves, our families.”

It hurt, but Demeritte doesn’t think it should be a secret.

If Kentucky shared horse death data like other states do, Demeritte said, he wouldn’t see it as a competitive disadvantage. In fact, he thinks encouraging more transparency could help.

“I would like to see that people trust us more in the game,” he said. “The more secretive you are, people always say, there’s something shady about it.”

Correction: The Paulick Report, an industry trade publication, was misspelled in a previous version of this story.

Reach reporter Caitlin McGlade at (502) 814.6541 or cmcglade@kycir.org.

The post With Race Horse Deaths Under Scrutiny, Kentucky Keeps Details Secret appeared first on Kentucky Center for Investigative Reporting.

State Board Finds Ky. Prison Mishandled Sexual Harassment Complaints Tuesday, May 21 2019 

Eleanor Klibanoff

Lisa Suliman, Jennifer Dennis and Colleen Payton, pictured left to right, were part of a sexual harassment lawsuit against the Kentucky Department of Corrections.

At a state prison in northeastern Kentucky, claims of sexual harassment were poorly investigated, dismissed or ignored entirely, according to a report from the state Personnel Board.

The report, which was first published by the Lexington Herald-Leader, found that the Little Sandy Correctional Complex failed to fully investigate numerous allegations of sexual harassment against Correctional Sergeant Stephen Harper.

The investigator for the Personnel Board found prison leaders created a culture that “may have contributed to acts of sexual harassment and a reluctance to report allegations of sexual harassment.”

Multiple female correctional officers reported that Harper grabbed them, exposed himself and attempted to get them to touch him between 2012 and 2014. Prison leaders ignored the complaints, or deemed them unsubstantiated. Many of the women said they faced retaliation for reporting the harassment.

The Personnel Board investigation found that the prison HR administrator was not trained to investigate sexual harassment cases, and both she and the warden believed claims of sexual harassment reported more than 24 hours after the fact lacked credibility. She did not take sufficient notes or interview all the possible witnesses.

Many employees reported feeling that sexual harassment complaints were “swept under the rug,” according to the report.

Joe Childers represented two women who sued the Department of Corrections, alleging negligence in preventing the sexual harassment. He said this report confirmed what his clients have been saying.

“There was this culture within the Little Sandy prison particularly, and the Department of Corrections more generally, that they didn’t take allegations or reports of sexual harassment seriously and didn’t make an attempt to properly investigate or train their investigators,” said Childers.

His clients, along with two other women, settled the lawsuit for $1.5 million in October.

Though the report looked at Little Sandy Correctional Complex specifically, sexual harassment is rampant across Kentucky’s correctional system.

According to a KyCIR investigation, corrections employees report sexual harassment at nearly five times the rate of other state employees. Though those employees make up less than 15 percent of all state employees, they account for nearly half of all complaints filed in the last six years.

Lisa Lamb, spokesperson for the Department of Corrections, said in a statement that the agency has increased anti-harassment training, increased oversight of the internal investigative process and has undertaken a comprehensive review of department policies.

“We believe the board’s report will help us to continue our positive momentum,” she said.

Contact Eleanor Klibanoff at eklibanoff@kycir.org or (502) 814.6544.



Little Sandy Correctional Complex Personnel Board Report (Text)

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Ky. Worker Safety Leaders Promise Grieving Families They’ll Do Better Thursday, May 16 2019 

 

Mike and Pam Oakley have been telling this story for years: how their 17-year-old son died on his second day of work, and how the state worker safety agency failed to hold his employer accountable.

They’ve told their story to anyone who would listen. The state never did.

But now, after the state worker safety agency’s failings have been exposed by the federal government and an investigation by the Kentucky Center for Investigative Reporting, state officials are finally paying attention to people like the Oakleys.

In recent weeks, the Labor Cabinet has announced major reforms for the agency, specifically around how it investigates fatalities.

And now, three top cabinet officials have driven to this small town, an hour south of Frankfort, on a Sunday, to share those plans with the Oakleys directly.

They’ve arrived as the Oakleys are setting up for their annual Workers Memorial Day event in Garrard County, laying out photos of their son, Grant, around the lobby of the Grand Theater.

Dwayne Depp, commissioner for Kentucky’s Department of Workplace Standards, shook Mike and Pam’s hands, and offered his sympathies. He asked what he could do to help.

“Y’all have no idea what this means to see you three standing here,” said Mike, choking back tears. “You have no idea.”

In Wake Of Loss, Family Pushes For Change

While Mike was eager to pin down some promises from the officials, Pam just wanted to tell them about the real person behind the mishandled fatality investigation. She wore a black t-shirt that read “Honoring GTO,” for Grant Thomas Oakley, her only child.

She pointed to a photo of Grant, an apple-cheeked 17-year-old, his arms crossed in a blue plaid shirt with the sleeves cut off. A ruffle of blonde hair sticks out from his camo baseball cap.

“He played the tuba in the band,” she told Depp, pointing out his marching band state championship medals. “He got first place in his junior year.”

She talked about how he was young, but he wanted to work.

“That’s just who he was,” she told Depp in a near whisper, her voice cracking. “That’s just who he was.”

Nicholas Volosky

Grant Oakley’s parents set up some mementos from his life and death at their annual Workers Memorial Day event in Garrard County, Kentucky.

Grant got his first part-time job at Bluegrass Agricultural Distributors, right across the street from his house. His second day of work happened to be Election Day, 2015, and he agreed to cover a shift so other employees could go to the polls. Grant wasn’t yet old enough to vote.

At work that day, he was riding on the side of a forklift. When he hopped off, his pants or shoes got caught and he ended up under the machine. He died at the hospital.

The Oakleys had a lot of questions. But when they got a copy of the state’s investigation, they found that investigators interviewed few of the eyewitnesses. The handwritten notes were illegible and disjointed.

Kentucky’s Occupational Safety and Health agency fined Bluegrass Agricultural Distributors $3,500 for not having a forklift training program. For the company, and the state, the case was closed.

For the loved ones Grant left behind, though, it was just the beginning. At Grant’s school, all the students honored him by dressing in flannel and camouflage. Mike started teaching OSHA safety classes. And he and Pam began pushing for more answers.

They asked federal OSHA to review the state’s handling of Grant’s death. The feds agreed that the investigation was so insufficient that they couldn’t even determine whether the violation the state issued was, in fact, correct. Federal OSHA proposed no consequences.

The Oakleys’ complaint to federal OSHA was one of several that prompted a special investigation into Kentucky’s worker safety program. A federal audit, released last summer, found that the state failed to properly investigate nearly every workplace fatality during fiscal years 2016 and 2017, including Grant’s.

That audit was first publicized as part of “Fatal Flaws,” an investigation by KyCIR, the Ohio Valley ReSource and the Center for Public Integrity. In that investigation, the Oakleys shared the story of Grant’s life, and his death, and how they’ve found themselves fighting for answers for all of Kentucky’s workers.

The Oakleys are relieved that changes are finally, slowly, beginning to emerge. They’re eager to be part of the reforms. But they’ve also learned to be suspicious of government promises.

“We’ve heard a lot of talk,” said Pam, trailing off.

Mike finished her thought.

“We’re going to be waiting to see what’s actually done.”

At Memorial Event, Signs Of Change

The Oakleys’ annual event is one of many Workers Memorial Day events held around the country on April 28th, the day the Occupational Safety and Health Act went into effect in 1971. But this event is no celebration of OSHA.

As the Oakleys have dedicated their lives to getting better treatment for victims of workplace accidents, they’ve connected with numerous other grieving families along the way.

Many of these families gather at the Oakleys’ annual Workers Memorial Day events, some driving hours across the state to Garrard County. It has become, over the past few years, a rallying point in the fight for acknowledgement from Kentucky’s state-run OSHA agency.

Last year, Ervin Dimeny, then the commissioner for the Department of Workplace Standards, arrived late and sat in the back as speaker after speaker eviscerated his agency.

After the event, Dimeny spoke to a reporter. All fatalities are tragic, he said, but there was nothing his agency could do to bring people back. He defended the worker safety agency, saying there are “states that are doing better and states that are doing worse” than Kentucky.

But Kentucky’s most recent federal audit, which covered Dimeny’s tenure, had more failings than any of the other 27 states that operate their own worker safety agencies.

According to the audit, state investigators routinely failed to interview eyewitnesses, identify the cause of incidents or flag all possible safety violations. In some cases, the state improperly blamed the employee for his or her own death.

These shoddy investigations, the federal audit concluded, left workers “continuously exposed to serious hazards that remain unabated.” And they left families more confused in the wake of a workplace tragedy.

Former Labor Secretary Derrick Ramsey moved to the Education and Workforce Development Cabinet last summer. He took Dimeny and much of the cabinet’s senior leadership with him.

That’s when Depp was brought in. He said he was hired specifically to reform the agency in the wake of the audit.

Since KyCIR’s investigation was released in November, the Labor Cabinet has announced an internal review of the state’s worker safety program. Labor officials have increased salaries in an effort to retain inspectors, and issued press releases about the required trainings their employees are now attending.

While Dimeny downplayed problems, Depp admitted in a recent interview that the state had, at times, failed to properly investigate fatalities and said he was trying to build a “culture of accountability” that had not always existed at the agency.

Dwayne Depp, Commissioner of the Department of Workplace Standards, speaks with KyCIR on Monday April 15th. (Tyler Franklin/WFPL)

“I don’t want another family to experience some of the things that some of those families … have experienced when all they want is answers,” Depp said. “I feel like our job is to be able to give them those answers.”

In that interview, he said he had not met with any of the families who had their cases mishandled. A few weeks later, he showed up at the Workers Memorial Day in Garrard County.

Depp came with David Dickerson, the top official at the Labor Cabinet appointed by Gov. Matt Bevin, and Chuck Stribling, the state employee responsible for making sure Kentucky’s worker safety agency is meeting federal standards.

Only Stribling was with the agency when Oakley died, or during the time period covered by federal OSHA’s scathing assessment.

But, now, after years of closed doors and evasive non-answers from state officials, the Oakleys were finally hearing directly from three top Labor Cabinet officials.

“We are a work in progress,” Depp said. “We’re changing a lot of things that we’ve been doing, really focusing on making sure that when we get done, we’ll be able to answer all the questions that the family has at the end of our investigation.”

In the long run, the Oakleys want more than just a drop-by visit. Even if they can’t get Grant’s case reopened the company he worked for has since closed, and the eyewitnesses are long gone they want a guarantee that this will never happen to another family. They want to be part of the change the agency is promising, starting by meeting with the inspectors to educate them on how to deal with grieving families.

Nicholas Volosky

Pam and Mike Oakley speak with Dwayne Depp (left), commissioner for workplace standards at the Kentucky Labor Cabinet during a Workers Memorial Day event in Garrard County, Kentucky.

Depp offered to come back, with Dickerson, for a follow-up meeting. He gave Mike Oakley his card with his personal cell phone number, and told him to call anytime.

“We’re happy to have your input,” Dickerson said. “Please don’t be bashful.”

Mike Oakley, towering over the state officials in head-to-toe denim with his big, gray beard, burst into laughter. Pam joined in.

“You get to know me, you’ll see that I’m not,” Mike responded. “I wasn’t given that gift.”

Later, Dickerson told KyCIR that Depp’s reforms have his full support, as well as the governor’s.

“I will tell you today, this iteration of the Labor Cabinet cares about doing thorough, competent, complete investigations to give families some sense of closure in the event of an unfortunate occurrence,” Dickerson said.

‘They deserve so much more’

The state officials took their seats in the Grand Theater, the only suits in a crowd of work shirts and motorcycle vests.

All around them were the friends and families — the living victims — of those who died on the job, only to have the state fall short in investigating the circumstances.

Eleanor Klibanoff

Dwayne Depp (left), commissioner for workplace standards at the Kentucky Labor Cabinet, sits next to Labor Secretary David Dickerson and worker safety official Chuck Stribling during a Workers Memorial Day event in Garrard County, Kentucky.

Some of Mike’s students were there too. After Grant’s death, Mike got certified to teach OSHA safety courses.

This year, Mike’s speech was brief and conciliatory. It was almost hopeful.

“We are here to honor those workers that didn’t make it home,” he said. “We’re not here for us. We’re here for them. Because I, personally, refuse to let these people lay dormant in a file somewhere as a number.”

He looked directly at the three state officials sitting in the audience, hoping they were finally hearing all the grief and frustration and pain these families have suffered.

“They are so much more, and they deserve so much more.”

As Mike stepped down from the stage, Andy Sims took his place. The Oakleys brought Sims, the Commonwealth’s Attorney for Jessamine and Garrard County, into their fight as well. Sims wanted to bring criminal charges related to Grant’s death, but he said he was hampered by the state’s poor OSHA investigation.

Sims began slowly reading the names of every worker who died in Kentucky over the last year. Grant’s friends and some of Mike’s students walked on stage, one by one, wearing name tags to represent each of the fallen.

After the speeches, they wrote the names of the people they were representing on balloons. The crowd moved outside and reassembled in a circle around a small obelisk in the dusty parking lot. They released the balloons, and everyone watched them float away until they disappeared.

Since Nov. 3rd, 2015, the Oakleys have been fighting in memory of Grant. But over the years, it’s become just as much about these people, and the loved ones they leave behind. The Oakleys have been fighting so no one else will have to.

And they have no plans to stop. But for the first time in years, they may be fighting alongside the state, rather than against it.

Contact Eleanor Klibanoff at eklibanoff@kycir.org or (502) 814.6544.

 

The post Ky. Worker Safety Leaders Promise Grieving Families They’ll Do Better appeared first on Kentucky Center for Investigative Reporting.

Judge Orders Second Ky. Agency To Pay KyCIR’s Legal Fees Tuesday, May 14 2019 

The Finance and Administration Cabinet “willfully” violated the Open Records Act and must pay legal fees and penalties to the Kentucky Center for Investigative Reporting, a judge ruled Friday.

Franklin Circuit Judge Phillip J. Shepherd directed the cabinet to pay KyCIR more than $19,000 in fees and penalties.

The cabinet redacted the names of state employees accused of sexual harassment when the claim was later deemed to be unsubstantiated after an internal review. Shepherd said the cabinet incorrectly relied on previous Open Records Act rulings about private citizens, not state employees, to argue that those names should be protected.

Additionally, Shepherd said that the cabinet owed KyCIR fees and penalties for declining to provide the records in question to the Office of the Attorney General. The attorney general’s office requested to see the records after KyCIR appealed the agency’s response to an open records request.

Agencies are not required to provide the records to the Attorney General, and can instead proceed to court, as the cabinet did in this case. But Shepherd said that’s the kind of thing that factors into decisions about awarding fees and penalties if the cabinet loses the lawsuit.

Shepherd concurred with KyCIR’s argument that the “cabinet has intentionally subverted the authority of the OAG (and the rights of [KyCIR]) by pushing the matter to circuit court, and, as a result, [KyCIR] has incurred significant costs and expenses.”

In November 2017, KyCIR requested sexual harassment records from every state agency, and found wide variations in how different agencies handled complaints. Some agencies never substantiated a single complaint as sexual harassment, while others had terminated employees for similar complaints.

That variety of responses extended to interpretations of the Open Records Act as well. Identical requests to every agency yielded responses ranging from immediate compliance to lawsuits, like the one filed by the Finance and Administration Cabinet.

The Labor Cabinet also sued KyCIR over a similar redactions issue. In April, Shepherd ordered the Labor Cabinet to pay KyCIR more than $17,000.

Both the Labor Cabinet and the Finance and Administration Cabinet have appealed the ruling.

Contact Eleanor Klibanoff at eklibanoff@kycir.org or (502) 814.6544.

The post Judge Orders Second Ky. Agency To Pay KyCIR’s Legal Fees appeared first on Kentucky Center for Investigative Reporting.

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