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Firefighter goes to court to get job back
(by Joan Demirjian - July 14, 2010)
Firefighter goes to court to get job back
By JOAN DEMIRJIAN
After being discharged from the Bainbridge Fire Department, firefighter Mark Gless wants his job back.
He has filed a petition for writ of mandamus in the 11th District Court of Appeals, asking the court to order the township to reinstate him to the department.
Mr. Gless, of Mantua, also is a member of the Auburn Fire Department.
His attorney, Richard Selby, of Dworken and Bernstein Co. LPA, of Painesville, said a firefighter's employment is governed by the provisions of Ohio Revised Code, which provides that firefighters shall continue in office until removed.
Mr. Gless was verbally advised by the fire chief and assistant fire chief that he was being terminated from the fire department and was asked to submit a letter of resignation, according to his attorney.
The matter involved a training session on operating a rescue squad in winter conditions. "In his view, it was perfectly appropriate," Mr. Selby said of Mr. Gless.
A squad was used to conduct "doughnuts" in a parking lot, and, in the process, a vehicle was struck.
Mr. Gless did not submit a letter of resignation and has not resigned from the department. He has not been scheduled to work any hours since the termination.
The Ohio Revised Code requires that a firefighter can only be terminated if he has been found guilty in the performance of his official duty for bribery, malfeasance, nonfeasance and misconduct in office, gross neglect of duty, gross immorality or habitual drunkenness, Mr. Selby said.
The Ohio Revised Code requires that, if it is determined that the employee is guilty of any of the offenses, written charges must be filed immediately with the legislative authority and served on the person, he said. Written charges never were filed with Bainbridge Township Trustees, as required, and written charges never were served on Mr. Gless, Mr. Selby said.
Mr. Gless has not been paid since being told he was being terminated, according to the petition.
As a result of the failure by Bainbridge to abide by the Ohio Revised Code, Mr. Gless has been unlawfully deprived of his salary and benefits and has been denied the appeal procedures associated with his rights under the code, according to the petition.
Mr. Gless has no adequate remedy at law, because Bainbridge has not held a hearing from which he can file an administrative appeal, Mr. Selby said. There were no written charges or a hearing before Township Trustees where he could speak, he said.
The township has not given any indication of what the charges are, he said. "He was simply told he was being fired," Mr. Selby said. "He wants his job and back pay."
With written charges and a hearing, Mr. Gless could have appealed, he said.
The court is being asked to issue a writ of mandamus requiring Bainbridge Township to re-employ Mr. Gless and to pay him all of his salary and benefits, plus attorney fees.
Mr. Selby said the statutory procedures speak to the importance of the position. Others have similar protections with respect to government functions, he said.
"It's done to protect against political whims," Mr. Selby said of the Ohio Revised Code. It offers protections in those types of situations and a continuity of work force, he said.
The trustees now have the obligation to answer the complaint.
Bainbridge Trustee Matthew Lynch said they likely will turn the matter over to their insurance company, as advised by the Geauga County Prosecutor's Office. Insurance covers general liability, he said.
Bainbridge Trustee Jeff Markley said trustees will be discussing the matter as pending litigation.
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