Arbitrator backs city in firefighter dispute
By Jeff Gallatin
Bay Village
Published July 29, 2009

City officials acted properly in disciplining veteran firefighter Ron Westmoreland for remarks in which he alleged at a September 2008 city council meeting that municipal decisions and policies helped cause the drowning of a small boy in Lake Erie.

“The employer acted reasonably and with just cause when it disciplined the grievant for his unacceptable conduct,” arbitrator Robert G. Stein said in his 40-page decision document, which was dated July 21 and released several days later.

After a hearing, Mayor Debbie Sutherland suspended Westmoreland for a week or the equivalent of three shifts. Westmoreland appealed the decision with the city, with the matter ultimately going to arbitration in late March. In addition, he filed suit in United States District Court on a First Amendment challenge to the suspension.

Sutherland said Monday she was pleased and planned to again seek the disciplinary action against Westmoreland.

“I am happy that the arbitrator believed the city acted reasonably and with just cause when the firefighter was disciplined for unacceptable conduct,” she said.

Bay Village Law Director Gary Ebert said it was a significant ruling because the arbitrator not only ruled against Westmoreland, but cited cases and precedents for the ruling.

“That’s highly unusual for an arbitrator to go that in-depth in making the ruling,” Ebert said. “They usually don’t go to that length.”

In addition, Ebert filed a motion in district court to adopt the findings of the arbitrator and have the court dismiss the motion by Westmoreland’s attorney, Avery Friedman, for a judgment in his case. Ebert also moved to have the district court lift the stay on the case pending the arbitration decision.

“That decision’s been rendered,” said Ebert. “This matter should go forward.”

Westmoreland was out of town and unavailable for comment. Jim Walts, president of the Bay Village firefighters union, referred comment to Friedman.

After Friedman reviewed the arbitrator’s decision he said it was improper.

“He missed by a mile,” Friedman said. “The city’s brief conceded that First Amendment issues are properly resolved in the United States District Court; that appears to be the only thing the city got right.”

Friedman in a statement contends Stein didn’t utilize the right information.

“Mr. Stein, who had no transcription of the proceedings, appears to have ignored the testimony of Ms. Sutherland, Mr. Cruse, Mr. Piskura and incorrectly relied on the city’s post-hearing brief with evidence not introduced at the hearing. He cobbled up something completely inconsistent, in our opinion, with the facts and law of the case,” he said in the statement.

“Thankfully, this case will be returned to the forum where it really belongs: the United States District Court. Mr. Westmoreland and the firefighters of Bay Village and throughout Northeast Ohio will continue their fight to ensure that Bay Village cannot exempt itself from the Constitution of the United States.”

Ebert said the arbitrator focused on getting to the truth of the matter, noting that in his ruling, Stein quoted different decisions to support the need for truth and facts when making a public statement.

“Even if the speech involved a matter of public concern, an employee’s speech is not protected where it is made with a reckless disregard for the truth,”  Stein quoted from the Seventh Circuit Court.

Stein also questioned in the ruling why Westmoreland made the statements about the city policies and the boy.

“In this case, the grievant’s pejorative comments implied that they were provable factual assertions despite their inaccuracy. It is significant to remember that, in the grievant’s preliminary statements at the council meeting, he attempted to establish himself as an experienced and very knowledgeable firefighter and diver/trainer,” he said.

“However, actual review of the above accusatory and disparaging remarks indicates they were generated as a type of personal vendetta against the city officials, which basically failed to serve or advance any form of positive change or to enlighten the public with valid information.”

Officials expect a ruling on the latest motion in federal district court in about a month.

Previous West Life articles:

• Suspension of Bay firefighter prompts protest (Oct. 22, 2008)
• Firefighter awaiting appeal of suspension (Oct. 28, 2009)
• Firefighter goes to court over suspension (Nov. 5, 2008)
• Firefighter’s suspension going to arbitration (Nov. 12, 2008)