‘Miscommunication’ led to Independence cop’s $160K in overtime payments, report finds
An independent investigator hired to examine how an Independence police officer earned $160,000 in overtime found no wrongdoing on the officer’s part, but pointed to “miscommunication” among city leaders and a lack of concrete policy regarding overtime practices.
Findings from the monthslong investigation were presented early Tuesday by Daniel Nelson from the Kansas City law firm Spencer Fane LLP, who was hired to investigate overtime practices in the police department. Nelson is a former deputy chief prosecutor in the Jackson County Prosecutor’s Office and previously worked as an assistant U.S. attorney in the Western District of Missouri’s Kansas City office.
The city launched an investigation in February after employee W2s were distributed. At that time, a whistleblower notified City Manager Zach Walker that police officer Kevin Nightingale racked up 2,800 hours of overtime for performing construction work at the police department.
Including his $160,000 in overtime pay, Nightingale took home about $240,000 last year — more than any other city employee. In addition to getting overtime for contracting work completed in Independence police headquarters and the city jail, Nightingale was also paid for more than 400 hours of vacation time. Longstanding city policy has allowed many workers to double dip overtime pay with vacation benefits even when they do not work 40 hours in a week.
Nelson pointed to a “significant miscommunication” between police and city officials. While City Hall verbally agreed to some renovations at the police department, police officials did not have express permission to use in-house staff and overtime pay to complete the work.
The summary of the investigation released on Tuesday did not name Nightingale or any other city employee.
The investigation found that city leaders never followed up with police staff, who work across the street from City Hall. Instead, police command tapped internal employees for complex construction work without soliciting any bids as city policies require. Those unlicensed, uninsured and unbonded police department employees create liability concerns for the city.
While the practice was “inappropriate,” the investigation found that the police department has for more than two decades relied on officers to complete in-house renovation projects on no-bid, unwritten contracts, Nelson found. The Star reported in February that the officer whose overtime pay touched off the investigation received a mayoral award in 2018 for similar work completed at department headquarters.
A summary of the investigation’s findings shared Tuesday showed renovations at the police department headquarters totaled roughly $398,000, about half of which went toward labor. Hourly labor provided by police officers came at a $60-per-hour median rate.
According to the report, the city verbally agreed to allow fixes to the jail — where about 85% of project time was dedicated — for addressing safety issues, though no permission was given to use police labor or overtime. Follow-up questions were not asked of police officials, the report says, pointing to that as an oversight failure.
The report also outlined violations of the city’s procurement process, where public projects go out for bid, saying some but not all rules were followed. It says police labor was not licensed or insured, creating a liability risk, and the job should have gone through the public bid process.
The report cites an “enormous number of hours” worked in connection with the project, but found no conflict with officers’ regular duty hours and called the project “major.”
Nelson’s inquiry doesn’t fully answer a central question in the ordeal: whether Nightingale actually worked 2,800 hours of overtime in a single year. That number would suggest he worked an average of more than 53 hours of overtime each week.
A full-time employee working a normal 40-hour workweek would have 2,080 hours of regular pay in a calendar year.
Nelson found that it was “impossible” to validate all of Nightingale’s overtime hours because of the extensive work he completed off-site and the police department’s overtime “honor system.” Still, he found no evidence of fraudulent timekeeping.
One issue raised was the source of the construction funds. Police had said the project was to be completed through budget savings from fiscal year 2020-2021, though the audit showed no savings actually existed. In all, the overtime that year went over the approved budget by nearly $650,000, not including additional employee benefits, and the overtime for the upcoming budget year is predicted to exceed by about $600,000.
The investigation determined police labor was inappropriately used but the project was “well executed,” saying the construction was necessary and essentially came to the city at a bargain price. It also found no evidence that police employees were being dishonest about the project or keeping it a secret from City Hall.
“Bad idea, good result,” was how Nelson characterized the police department’s decision to reporters.
“Bad idea to do this uninsured and to not go through the bid process, but they got lucky here and the end result to the taxpayers will serve the city of Independence’s needs in our estimation.”
Minus the cost of labor, the materials cost roughly $197,221, according to the report. Nelson said police laborers followed city procurement rules for materials.
Nelson’s investigation won’t come cheap to the city. Though the final cost is unclear, the City Council has authorized staff to spend up to $100,000 on the investigation.
Twenty-four city employees were interviewed and investigators audited the city’s books related to the project.
Mayor Rory Rowland, who was elected in April, said he’s committed to changing the culture in Independence.
“I am beyond disappointed with what has happened,” he said, “and I feel the outrage of the citizens.”
Over the next 60 days, Rowland said city staff would come up with recommended policy changes for the City Council to consider.
“My colleagues and I are closely reviewing results and recommendations of this investigation,” he said. “And we will take steps to ensure that this will never happen again in our city.”
Investigators recommended that in-house construction projects no longer occur outside of the city’s official procurement process, because those practices are unfair to contractors and present other risks.
“This is a liability,” Nelson said. “Somebody can get hurt and sue the city.”
The report also recommends city officials examine revisions to overtime policies across city departments, including the installation of caps on overtime. In the police department, Nelson said, supervisors should have more oversight on overtime. Currently, supervisors have no direct knowledge of the work performed when signing off on overtime slips, he found.
Other recommendations highlighted the potential risk of overworking public safety workers. The report says that may lead to workplace fatigue, saying excessive overtime may be dangerous for police officers and the public.
In February, the city manager said the police department did not have approval for the overtime work. Walker said the incident was “inconsistent with our purchasing policy, our collective bargaining agreements, and our organizational values.”
“I think at best we’ve got gross misconduct and very poor judgment from management within the police department and at worst we may have fraudulent activity,” Walker told The Star in February.
Further analysis of city payroll records showed Nightingale was among three Independence officers who received more than $100,000 in overtime pay during the same year. Overtime pay slips completed by Nightingale and other officers showed they were paid to complete contract work that included rewiring, installation of countertops and painting. Other documented examples included trips to area hardware stores, transportation of construction materials and visits to fabrication shops.
Deputy Chief Ken Jarnagin, who was acting as police chief at the time that the overtime issue came to light, was placed on administrative leave by Walker, the city manager. Most of the approved overtime occurred when former Police Chief Brad Halsey, who retired in December, was still leading the department, though Jarnagin was working as a deputy chief at the time.
Independence Police Capt. Adam Dustman has acted as the city’s police chief since February.
Jarnagin has been on leave for months while city leaders continue a search for a new permanent police chief. The city invited the public to meet finalists for the post between 6 and 8 p.m. on July 27 at the city’s Uptown Market, 211 W. Truman Road.
Nelson met with Independence City Council members Monday evening to share his findings in closed session.
But council member Mike Steinmeyer, who attended Nelson’s briefing with reporters, said he still has many questions about the incident.
Steinmeyer, who represents District 2, said he was unsure what to make of Nelson’s conclusion that taxpayers got a good value from the police overtime work.
“I don’t know. I have my feelings about it,” he said. “...I still think the city probably knows more than what we found out today. But who knew what? That’s what everybody’s asking.”
This story was originally published July 19, 2022 at 11:02 AM.
