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CHAPTER 17 – ARBITRATION / MEDIATION

Article 17-5

OHIO: PROMOTION - TRIAL COURT IMPROPERLY ORDERED PROMOTION OF “ACTING” POLICE SERGEANT TO PERMANENT POSITION - UNDER CBA THE ARBITRATOR HAD ALREADY RULED THAT THE CITY MUST APPOINT “ACTING” OFFICERS TO FILL VACANCIES, BUT THESE WERE ONLY TEMPORARY POSITIONS - ARBITRATOR’S RULING IS FINAL UNLESS EVIDENCE OF FRAUD

On May 15, 2009, in Joseph C. DiPietrantonio v. City of Norwood, OHIO et al., 2009 Ohio 2260, 2009 Ohio App. LEXIS 1893 (Ohio Court of Appeals for the 1st District, Hamilton County) the court held (3 to 0) that the trial judge did not have subject-matter jurisdiction over the lawsuit filed by Officer DiPietrantonio seeking a promotion to Sergeant based on his time as an “acting Sergeant” and therefore the trial judge’s order of promotion is reversed.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 17-4

OH – ARBITRATION – FIREFIGHTER INJURED TRAINING - PLACED ON INVOLUNTARY DISABILITY SEPARATION FROM FIRE DEPARTMENT – COURT WILL NOT OVERTURN ARBITRATOR’S DECISION

 On April 25, 2007, in Denise Goble v. Brunswick, 142 Ohio Misc.2d 137, 2007-Ohio-4125, a trial judge on the Court of Common Pleas of Medina County dismissed the appeal by Denise Goble, for firefighter / paramedic with the City of Brunswick Fire Department. In June, 2004 she was injured on duty while receiving training on the “Jaws of Life.” She was placed on sick leave, and then on disability leave.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 17-3

OHIO – FMLA - PUBLIC EMPLOYEE CAN SUE UNDER FMLA EVEN IF LOST ARBITRATION

On April 30, 2007, in Miller v. Pond, 171 Ohio App.3d 347, 2007-Ohio-2084, the Ohio Court of Appeals for Stark County, held that former county employee can sue the Stark County Department of Job and Family Services for alleged breach of Family Medical Leave Act, even though she filed a union grievance and an arbitrator ruled against her.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 17-2

OHIO - CITY AGREED IN COLLECTIVE BARGAING AGREEMENT TO FOUR FIEFIGHTERS ON ENGINES / LADDERS - COURT UPHOLDS ARBITRATOR DECISION THAT CITY CANNOT REDUCE TO THREE FIREFIGHTERS

On March 23, 2007, in International Association of Firefighters, Local No. 136 v. City of Dayton, 2007 WL 866999 (Ohio App. 2 Dist), 2007 – Ohio – 1337, the Ohio Court of Appeals for Montgomery County upheld an arbitrator’s decision on a union grievance, requiring the city to keep four FF on each engine / ladder.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 17-1

LOUISANA – OFF-DUTY CONDUCT – CAPTAIN’S DEMOTION FOR OFF-COLOR COMMENTS TO CASINO EMPLOYEE IS REVERSED – HIS CONDUCT DID NOT IMPAIR THE EFFICIENCY OF THE FIRE DEPARTMENT

On May 31, 2006 in Henry Beba v. New Orleans Department of Fire, the Court of Appeals of Louisiana, 933 So.2d 871, 2006 La. App. LEXIS 1457, the court affirmed the city’s Civil Service Commission’s order to reverse the demotion of Henry Beba from captain to firefighter, since the off-duty incident at Harrah’s Casino involving a slot attendant did not impair the efficiency of the fire department.

BACKGROUND

On July 30, 2004, Captain Beba won a $2,000 jackpot as he was playing video poker, while off-duty and in civilian clothes, at Harrah’s Casino. Ms. Kay Ximinez was the slot attendant who handled the pay-off. She asked Beba, who appeared intoxicated to her, if he needed anything else. He allegedly responded, “You look like you have a big mouth. I have a big ….you can suck on.”

She walked away, feeling embarrassed and humiliated, and reported the comment to her supervisor. She later called the New Orleans Fire Department, and was advised to put her complaint in writing. The August 14, 2004 complaint was investigated, and internal charges filed against Captain Beba. He denied making inappropriate remarks, but after a “peer review” hearing, the Superintendent demoted Beba to firefighter for conduct impairing the efficiency of the fire department.

Beba is a classified City Civil Service employee, and he appealed his demotion to the Civil Service Commission. The Commission’s hearing examiner heard the testimony from numerous officers who testified in support of Beba’s excellent work perforce, confirmed by outstanding written performance evaluations in 2001 and 2004. The Superintendent testified and admitted that the alleged incident had not been made public. The hearing officer concluded that the Fire Department had failed to show that the incident impaired the efficient operation of the department. The Civil Service Commission agreed, and voted to reinstate Beba to captain. The city then filed this appeal to the Court of Appeals.

The Court of Appeals agreed with the Civil Service Commission’s decision, “While Captain Beba’s comments were rude, he did not commit a crime. Further, he was off duty and his actions did not involve fighting fires or supervising other firefighters. Additionally, there was no notoriety concerning the incident. Superintendent Parent admitted the matter was not made public. In fact, Captain Beba is still welcomed at the casino as a patron.”

The court concluded by comparing this case to Jones v. New Orleans, 2000-1047 (La. App. 4 Cir. 3/14/01), 785 So.2d 866, who “killed a pedestrian while driving intoxicated, left the scene, went home to change clothes and then reported for work at the fire district. Jones eventually was convicted of negligent homicide. In the present case, Beba has not committed a criminal act.”

Legal Lessons Learned: For fire departments, it is often difficult to sustain a demotion or termination for off-duty conduct unless it has clearly put the department in a bad light; for officers and firefighters, there is an obvious message about abuse of alcohol.

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE; Posted by UC solely as information and for the benefit of students.

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