After previously denying it, Jefferson Commonwealth's Attorney Dave Stengel acknowledged Tuesday that he placed an assistant, Matthew Conway, on a year's probation last March for lying to Louisville police.
Conway lied when he told police officers who questioned him that he was never tipped by a detective that he was under investigation for possible drug use and trafficking. He later admitted to police that the detective had tipped him off.
Stengel told The Courier-Journal in October that he hadn't taken any disciplinary action against Conway for the lie, saying he considered it a "well-intended but boneheaded statement."
But a copy of Conway's personnel file, which The Courier-Journal obtained from the commonwealth's attorney's office under the Kentucky Open Records Act, shows that Conway was placed on probation for 12 months and subjected to random drug tests.
Asked why he didn't mention Conway's probation, Stengel told The Courier-Journal Tuesday that he thought "all internal discipline was confidential. I didn't really realize it was subject to open records. If I blabbed it, then it wouldn't be confidential."
Stengel also said he did not consider the probationary period he imposed on Conway to be disciplinary action.
"I mean, if you want to split hairs, I guess you can (consider it discipline), but I didn't," he said.
Conway, 35, the younger brother of state Attorney General Jack Conway, did not respond to a message left at his office Tuesday. He was not charged with a crime.
But his personnel file includes a memorandum, dated March 18, and written by Stengel's first assistant, Harry Rothgerber specifically titled "disciplinary action."
Asked about that reference, Stengel said: "Well, yeah, it's called 'discipline' by Harry, so it's discipline."
Stengel said in his view, "disciplining (Conway) would have been like giving him days without pay, stuff like that. This was simply saying, 'We want you to prove to us what you say to us is true.' "
Rothgerber's memo states that after he and Stengel met with Conway, on March 17, "a decision was reached by Mr. Stengel to place Mr. Conway on probation for 12 months. His (Conway's) division chief will not be made aware of this, and I will continue to monitor his progress."
According to the memo, Conway also was told that during his probationary period he must "make progress regarding his time and attendance issues" and "must significant(ly) improve the quality of his communications with Mr. Stengel and other administrators in the office."He also was told to expect "random or unannounced drug tests."
Rothgerber's memo indicates that Conway agreed not only to "periodic, regular drug tests, so he can show everyone that he is completely drug-free for a lengthy period of time," but also that he was willing to pay for the testing.
The personnel file contains the results of two such tests, one of which was conducted on March 12 and revealed the presence of cannabinoids - a compound found in marijuana - in Conway's urine sample.
Stengel said Conway told him he was taking Benadryl, an over-the-counter cold and allergy medication, at the time of the first drug test, and that Conway's physician and others said that could be responsible for the positive result.
"He said he wasn't smoking any dope," Stengel said.
The other test, conducted in late April, disclosed a positive reading for amphetamines, which Rothgerber said Conway attributed to the prescription drug Adderall. He said Conway had told the office when he was hired that he took the drug regularly for attention-deficit hyperactivity disorder.
Rothgerber said late Tuesday that Conway submitted to a third drug test earlier in the day and that the results were negative.
Stengel acknowledged that random drug testing is unusual for prosecutors in his office; he said Conway is the only one currently submitting to it.
Stengel also reiterated Tuesday what he told The Courier-Journal in October: that he had no reason to believe Conway had been using or trafficking in illicit drugs. He said the testing regimen amounted to an exercise of "trust but verify."
"We believed everything he was saying, but we just wanted verification," Stengel said.
The "time and attendance issues" noted in Rothgerber's memorandum referred to "the same thing that every other damn prosecutor in this building does," Stengel said. "They … start thinking they're civil lawyers and get a little lax on their hours and their sign-out times."
Conway's salary when Stengel hired him in July 2009 was $42,000 far less than he could have made had he been hired by a major Louisville law firm.
Stengel also said Conway needed to communicate better with his supervisors - a reference to Conway's actions in the compromised drug investigation.
Police officials met with Rothgerber on March 11, two days after Conway was first interviewed by investigators from the department's Public Integrity Unit.
According to police records obtained by the newspaper, department officials told Rothgerber about Conway's involvement in the drug investigation.
"We also informed him that Matt Conway came into our office and lied on an official sworn statement," the police records show.
Notes in Conway's personnel file indicate that Rothgerber met with Conway the following day - Stengel was out of town - and that Conway denied any drug involvement and agreed to return to police investigators the following day and "make another statement."
A transcript of that interview with police, on March 13, indicates that Conway admitted lying during the first interview and contended that he did so to protect Det. Ronald Russ, who was fired last week by Louisville Metro Police Chief Robert White for lying when he denied tipping off Conway.
Stengel told the newspaper in October that he decided not to discipline Conway for initially being dishonest because "he went back and corrected that immediately."
However, records show that Conway did not offer his corrected account until four days later, after police had spoken to Rothgerber and after another witness advised Conway that he had told investigators Conway did receive information from Russ.
Stengel acknowledged knowing Jack Conway for nearly 20 years but said their relationship in no way prompted him to give lenient treatment to his brother.
"I didn't even know (Jack Conway) had a brother named Matt until he was hired here," said Stengel, who has served as commonwealth's attorney since 1996 and who said he does not intend to seek re-election when his term expires in 2012.