A Montgomery County Common Pleas Judge has found that former Miami Twp. Deputy Police Chief John DiPietro was improperly fired, but the judge’s ruling leaves open the question of whether DiPietro will get his job back.
Judge Michael Krumholtz set a hearing for Aug. 15 so he can look over an official transcript with the testimony of Montgomery County Sheriff’s Capt. Tom Flanders, who performed the internal affairs investigation into DiPietro’s actions on July 12, 2012. That’s when DiPietro is accused of hosing down a naked 17-year-old girl who had been pepper-sprayed.
Krumholtz found that the hearing was needed to determine whether DiPietro should be returned to work.
The judge agreed with DiPietro that his firing was invalid because then-Chief Chris Krug served the notice of pre-disciplinary hearing to DiPietro on Oct. 19, then filed the notice with the board of trustees. State law requires the board to file the charges after making an initial finding that it has reason to believe DiPietro was guilty of those charges, Krumholtz found.
DiPietro, who received a medical disability soon after the firing, is seeking unused sick pay accrued after 26 years of employment, back pay and reinstatement.
But while Krumholtz agreed that DiPietro’s right to due process had been violated, he also cited case law that stated that a procedural defect would not automatically return DiPietro to his job if there was a finding that he would have been fired anyway.
Krumholtz wrote that he cannot make that determination until he has a full transcript of DiPietro’s administrative hearing, which was held over several days between November and February.
DiPietro was fired Feb. 13 after the hearing. As part of his appeal, DiPietro requested a full transcript. Township officials were unable to provide one, as the first four days of testimony were not taped. This was due to human error, township officials said.
The trustees’ attorneys moved for another hearing to supplement the record, but DiPietro’s attorney Richard Lipowicz argued against it, arguing in his motion that the trustees did not seek to fill gaps in the official record, but instead wanted “a second bite of the apple” to replace the evidence they considered with new evidence that could be substantially different.
Miami Twp. agreed to pay $100,000 to the family of the girl, according to records obtained by the Dayton Daily News earlier this month. In exchange, her family agreed not to sue the township or its current or former employees. The money will come from the township’s insurance provider.
The girl was decontaminated multiple times to counteract the effects of the pepper spray, the final time happening as she stripped naked as DiPietro held a water hose in the police department’s sally port. DiPietro admitted to taking a photo of a tattoo on the girl’s back and sending it to a friend, but the photo was not taken when the girl was naked.