& evarsee THOMPSON {800 INTERNATIONAL TOWER + 229 PEACHTREE STREET, NE. + ATLANTA, GEORGIA 30303, TELEPHONE: 404659.8700 + FAX 40 ‘+ sane eltbacthompeon com TO: E. Ronald Bennett Jr. Assistant City Attorney FROM: Tracy L. Glanton Elerbee, Thompson, Sapp & Wilson LLP ce: Ed Densmore City Manager RE: Investigative Report DATE: July 13, 2020 PRIVILEGED AND CONFIDENTIAL ATTORNE! LIENT COMMUNICATION / ATTORNEY WORK PRODUC’ On or around June 23, 2020, I was engaged to conduct an independent investigation into an alleged comment that involved a sexual act made by the City's Chief of Police, Chris Byers, to another City employee. This report sets forth my findings and conclusions based on my independent investigation. The following individuals were interviewed as part of this investigation, John Clifton, Diondre Russell, Mike Thomas, Tyler Seymour, James Zebley, ‘Adam Rose and Chris Byers, The Investigation On June 29, 2020, I met with , the employee to whom Chief Byers was alleged to have made the comment, has been working with the City since 2008. She has been an in the City’s Police Department since 2010. Her office is currently located in the . and she supports employees, as well as employees in training, records, and CALEA. December 12, 2019 Comment » advised that on the morning of December 12, 2019, she was drinking coffee at her desk, She stated that employees would gather around the coffee station in the mornings and at the time, the coffee station was right across from her desk. On this particular day, she was focused on her work and was not engaged in the conversation atInvestigative Report July 13, 2020 Page 2 the coffee station, She said that at some point, then-Major Byers asked: “Why are you at your desk?” She replied: “I have work to do.” He then said: “You don’t work,” to which she said: “I'll remember that the next time you ask me to do something,” He then said: “Oh, like when I say: Hey this dick is not gonna suck itself.” stated she was “flabbergasted” by the comment, She acknowledged that it was not uncommon for her and Byers to engage in banter of a sexual nature, but it had never been to that level.' She said that the fact that he made the comment in front of others embarrassed and humiliated her, and she was not going to be disrespected in front of her co-workers, Either that day or the next day, she reported the incident to her supervisor, Major John Clifton, In her meeting with Major Clifton, Major Clifton told her that he was going to have say something. ___ asked him not to involve Human Resources because she had made a prior complaint against the HR Director and did not trust HR. She also did not want him to take the issue to then-Chief Densmore because she felt that he had not stood up for her in a prior incident involving the HR Director. She-also felt that if it went further, she would have a target on her back. For these reasons, she told Major Clifton that the only thing she wanted him to do was to speak with Byers and ask him not to say that anymore in front of other people. During my meeting with Major Clifton, he confirmed that came to his office and was visibly upset about a comment made by then-Major Byers. He stated that told him that Byers had made a statement in front of others that she did not like, and a lot of people heard it. When he asked her what Byers said, she told him that he said: “Come on this dick isn’t going to suck itself.” Major Clifton said she was upset that he made the comment in front of other people, He also stated that he told that the comment was not appropriate and she needed to take it to HR, but when she explained why she couldn't go to HR (as described above), he asked her if she wanted him to go to HR or then-Chief Densmore. After further discussion about her options, she told him she just wanted him to tell Byers not to talk to her that way anymore. Major Clifton stated that this is the first time he has ever known Byers to speak in this manner, and he has worked with him since 2008 when he started working at the City, as well as for several years before at other agencies. Immediately after speaking with Major Clifton met with then-Major Byers and Byers admitted making the comment to Major Clifton stated ' As an example of the type of banter between her Byers, said that Byers would make a comment such as: “I was in the locker room waiting for you, but you never showed up.” Her common retort to something of that nature was: “I would do your wife before you.”Investigative Report July 13, 2020 Page 3 that he told Byers that he needed to apologize to and “make this right.” Byers agreed, Later that day, after Major Clifton knew that Byers had spoken with he checked in on her and asked her if she was okay, and she said: “yes.” He asked her whether she was satisfied with the outcome and she said: “for now.” That was the last time he spoke about the incident until recently. said that after Major Clifton spoke with then-Major Byers, Byers called her into his office. She stated that Byers asked her why she would say something to the one person who could bring him down and keep him from getting the Chief's position? She told him that everybody was talking about it and it had to stop before it got back to the Chief. Byers then asked her why she didn’t come directly to him and she told him because Major Clifton was her supervisor and she would have gotten into trouble if she did not follow the chain of command, He told her “alright.” stated that since this incident, the banter has stopped, end she does not recall Byers making any other comments of a sexual nature, also stated that it was not until approximately one month later, in late January 2020, when she retumed from medical leave, that then-Major Byers apologized to her for the comment, She said that he told her he was concerned about her husband knowing about the incident, and that he was sorry if he had offended her. She told him not to worry about it and “we're good.” Chief Byers” Response I met with Chief Byers on July 9, 2020 to discuss the allegations against him. Byers stated he recalled the comment at issue, but it did not occur as alleged. He said that for 12 years, he and had a running joke where would say: “Give me five minutes and I'll be under your desk,” to which he would retort: “Yeah, you know it ain’t gonna suck itself.” would then say: “Okay, I'll be waiting.” Chief Byers said that on the day at issue, this is same conversation that took place. He stated that he walking to his office first thing in the morning and made her “regular comment.” He continued to his office and did not notice reaction to his response. Chief Byers denied using the word “dick” in his retort to : stated that at that time, Byers and’Clifton were being considered for the Chief's position. 7 said that several officers who heard about the comment when they were atthe firing range approached her to let her know they had heard about the comment, were sorry, and asked if she was okayInvestigative Report July 13, 2020 Page 4 Chief Byers stated that about two hours fater, Major Clifton met with him and told him that had come to him about the comment and was upset by it, He admitted to Major Clifton that he had made the comment, but told Major Clifton that they had said that “a hundred times,” and he was shocked that was reportedly upset by it. After speaking with Major Clifton, Byers met with in his office. He told her that if he had offended her, he apologized. He said she told him that she was not upset by his comment, but Diondre Russell told her that she needed to make a complaint about it so she reported it to Major Clifton. He asked her if she wanted to speak with HR and she reiterated that she was not offended by the comment. Chief Byers stated that he hhas not made any similar comments to since, which she acknowledged. When asked whether he believed that his comment violated the Police Department's Unwanted Conduct or Behavior policy, Chief Byers stated that he did not believe so because the conduct was not unwanted, He said that this kind of sexual banter with ‘occurred regularly and was often initiated by her, He said this is “the way she talks,” which is why he felt comfortable engaging in this kind of banter with her. He said before this incident, nobody had ever reported to him that the conduct was unwanted or offensive. He denied joking like this with any other females in the Police Department and said there were none with whom this kind of joking would be acceptable, Witness Interviews Of the individuals interviewed, two admitted to hearing the comment by then-Major Byers. Diondre Russell stated that he was standing at the corner of . desk and admitted to hearing Byers say: “Okay this dick ain’t gonna suck itself." Adam. Rose, whose office is adjacent to desk, was in his office at the time and stated that he heard someone say something avout “getting their dick sucked.” He said that moment later, Diondre Russell backed into his office and asked him if heard the comment and told him that Major Byers had made the comment to Diondre Russell, Adam Rose and Tyler Seymour acknowledged that it was not uncommon for to engage in sexual banter, with comments being just as likely to come from her as from others. Russell stated the comment on December 12th, 4 Lieutenant James Zebley also stated that told him that she reported the incident to Major Clifton because Russell had been upset by it. He said that did not seem to be upset, and it seemed that she was trying to get ahead of it, At the time of the comment, Zebley was the CID Sergeant, He stated he did not hear the comment, but when he learned of it, it had already been reported to Major Clifton so he took no further action,Investigative Report July 13, 2020 Page however, was beyond the norm, Rose also stated that the comment at issue was significantly stronger than anything he would have expected, and while there was a lot of teasing and innuendo ~ often reciprocated by — he had not heard anything that blunt or one-sided. Most of the time the teasing was of a flirtatious nature and was not lewd or profane, Lieutenant Zebley stated that he did not hear the comment at issue and would have remembered it if he had becauseit is a“shocks the conscience” kind of thing, He also said that a comment like that would have stood out because it would have been against Byers’ character. When he leamed of the comment later, he was shocked because he had never heard anything that vulgar. None of the witnesses reported hearing any teasing or sexual banter between Byets and ‘since the December incident. Also, nobody was aware of then-Chief Densmore being aware of the incident until recently. Findings and Conclusions The City’s Equal Opportunity: Prohibited Discrimination and Harassment policy prohibits sexual and other prohibited harassment “When such conduct has the purpose or effect of unreasonably interfering with a person's work performance or of creating an intimidating, hostile, or offensive environment.” The Police Department’s Unwanted Conduct or Behavior policy similarly prohibits harassment (which is defined as unwanted conduct or behavior), including sexual and gender harassment, The Department's policy further requires that “[eJach employee shall conduct him/herself in such a manner that they do not become suspect of any unwanted conduct and shall refrain from any physical or verbal conduct or behavior that might be construed to be offensive by a reasonable third patty.” Based on the information provided during the investigation, itis my belief that then- Major Byers made the comment to that “this dick ain’t (or is not) gonna suck itself.” While Byers denied using the word “dick,” the witnesses who admitted hearing the comment all stated that he used the word, Major Clifton also reported that is what reported to him, and what Byers admitted to saying, ‘The individuals interviewed consistently reported that sexual banter and joking with was not uncommon, and even she admitted to engaging in the conduct, including with Byers. For this reason, itis not unreasonable that then-Major Byers believed that his comment would be acceptable to and that she would not be offended. byit. On this particular occasion, however, she was bothered enough by it that she reported it to Major Clifton, who reported that she was visibly upset. Others whoInvestigative Report July 13, 2020 Page 6 heard it, or became aware of it, also reported that the comment was inappropriate and beyond what they viewed as acceptable in the workplace. As a senior command staff member, then-Major Byers was in a position of leadership and, as such, had a duty and a responsibility to model appropriate workplace behavior. His common sexual banter with likely created an atmosphere where others, including felt comfortable speaking ina similar manner, and the sexual banter and joking became commonplace. 1 find that then-Major Byers’ comment to that “this dick ain't (or is not) gonna suck itself,” violated the City’s Equal Opportunity: Prohibited Discrimination and Harassment policy, as well as the Police Department's Unwanted Conduct and Behavior policy. ‘The comment is of the kind that might be construed to be offensive by a reasonable third party, and was construed as offensive by as well as those who heard or became aware of the comment. J further find that Major Clifton’s handling of the complaint was appropriate under the circumstances and was sufficient to correct then-Major Byers’ behavior. ‘The City's policy permits the informal resolution of complaints of this nature, which contemplates that the parties will work together with their supervisor and the Human Resources Director to arrive at a mutually agreeable solution. In this instance, it was reasonable for Major Clifton not to involve the HR Director in light of __Tequest for him not to involve HR due to a prior incident, Major Clifton was able to work with and then-Major Byers to bring the issue to a resolution in accordance with wistees. The handling of the investigation was also consistent with the Police Department's Unwanted Conduct and Behavior policy, which provides that all “complaints or incidents will be investigated on a case by case basis, and where a violation has been shown to oceur, immediate action will be taken to remedy the situation, eliminate the undesired behavior, and prevent its recurrence.” When reported the incident to Major Clifton, he immediately spoke with then-Major Byers to let him know was upset by the comment and he needed to apologize to her, which he did, By all accounts, the conduct has ceased. If you should have any questions concerning my findings or the investigation in general, please feel free to contact me Sincerely, Pray plissdiny Tracy L. Glanton