by Phil Keren
Editor
Cuyahoga Falls -- An arbitrator has ruled that a fired city building and zoning inspector be returned to his job.
"The first step of justice has been served," said Bernard "Bernie" Garner when reached by phone March 27. In addition to returning to his job as a building and zoning inspector in the code enforcement division with the city's community development department, Garner said he is also being reinstated to his position with the Cuyahoga Falls Police reserve unit.
Arbitrator Robert G. Stein ruled March 20 that the city return Garner to his job, but without back pay and benefits.
Garner's notice of termination from the city, dated Dec. 18, 2006, alleges the building and zoning inspector was "guilty of misconduct," "insubordination," and "conduct that reflects poorly upon the city." It asserts Garner acted unprofessionally during a Rockin' on the River event, exaggerating his authority and failing to provide a written report about the situation to his superiors in a timely manner.
On Dec. 20, 2006, Garner and AFSCME, Ohio Council 8 Local No. 2662, AFL-CIO, signed a notice of their intent to appeal the termination.
According to the arbitrator's ruling, Garner "identified himself as a City safety inspector" and told Rockin' on the River vendors [on July 14, 2006] to put lids on some water-filled buckets tied to aluminum poles supporting tents. City officials later asked Garner to report on his inspection and Garner "failed to comply" in a timely manner, the ruling stated. Garner "should have acted in a more professional, common-sense manner to prevent the situation from rising to its escalated and very volatile level," the ruling said.
In his March 20 decision, Stein wrote that Garner's "conduct clearly justified firm discipline being imposed," but it did not warrant termination.
In a portion of its legal brief cited by Stein in the ruling, the city argued it had "just cause" to fire Garner "because of his mistreatment of the public and insubordination toward city policies and supervisors."
The advocates for Garner from AFSCME, Ohio Council 8 Local No. 2662, AFL-CIO, argued in its brief cited by Stein that the city had "failed to provide credible evidence that [Garner] committed the offenses as outlined in the charges, [or] that it applied and enforced its rules in a non-discriminatory manner ..."
The union representatives for Garner asked for his termination to be overturned and that he "be reinstated with full seniority and the restoration of all back pay and benefits," according to the arbitration document.
Garner was hired as a building and zoning inspector for the city's community development department in 1998. According to the city's human resources department, he earned $24.26 an hour as of Jan. 1, 2006. Garner said he has also worked as a Falls Police reserve officer since 1999.
Arbitration hearings on the grievance took place in October and November 2007.
Appeal of federal suit dismissal still pending
Meanwhile, Garner has appealed a United States District Judge's dismissal of the federal lawsuit he filed where he was seeking reinstatement and $10.3 million in compensatory and punitive damages, alleging employment discrimination in his termination.
In a decision issued Jan. 29, Judge Sara Lioi dismissed three federal law-based counts of a four-count complaint filed by Garner with prejudice. That means Garner is barred from bringing an action on the same claim again. The dismissed claims include Garner's allegations "that [the] defendants violated his federal constitutional rights to free speech, due process and equal protection of the law."
Garner has appealed that decision to the Sixth Circuit Court of Appeals in Cincinnati.
Named as defendants in the federal suit were Mayor Don L. Robart, Truby, Service Director Valerie Wax Carr and Law Director Virgil Arrington Jr. in their professional capacities and Robart and Truby in their individual capacities.
Editor's note: Reporter Ellin Walsh contributed to this story.
E-mail: pkeren@recordpub.com
Phone: 330-686-3940