Monday, August 18, 2008
The lawyer said use of a minority list was done to give preferential treatment.
STAFF REPORT
YOUNGSTOWN — A lawsuit challenging the city’s practice of hiring police based on race and sex is still crawling through the courts nearly three years after it was filed.
Youngstown attorney Dennis Haines filed the lawsuit in Mahoning County Common Pleas Court in October 2005 on behalf of James Conroy (white), who took the civil service test for police in 2003, and ranked No. 6 among those who took the test, but was not hired.
Instead the city hired George Wallace (black), Nancy Tipple (white), and Dorothy Johnson (black), who ranked Nos. 10, 13 and 127, respectively, on the same exam. They were hired as patrol officers in June 2005. Their names appeared on a separate list of 28 minorities, which includes white women, with Johnson being No. 19 on that list.
The city retained outside counsel, Atty. Neil D. Schor, to defend the hiring practice. Schor filed a motion asking for the suit to be dismissed without a trial. Haines filed his opposition.
Judge Durkin, after reviewing the written arguments presented by both sides, denied the motion.
The city filed an appeal that’s now pending at the 7th District Court of Appeals, but that won’t stop the lawsuit from going forward.
Schor said this past week that the only matter that could be appealed is the judge’s decision not to remove former Mayor George M. McKelvey, Mayor Jay Williams and the officers, Wallace, Tipple and Johnson from the lawsuit. Williams was added as a defendant when he became mayor.
McKelvey, Williams, Wallace, Tipple and Johnson are being sued individually. Schor said that, as public employees, they have immunity from being sued for actions within the scope of their jobs. Also, he said the officers did nothing but get hired.
If the appellate court agrees with Schor and removes the individuals, the city, as an entity, would remain the sole defendant. He said the appeal will be set for oral arguments, likely this fall.
Once the appeals judges reach a decision, the case will proceed to trial in Judge Durkin’s court.
“The city has done a good job of dragging this out,” Haines said when contacted about the appeal. “The city hoped Conroy would go away, but he feels strongly about the impropriety of what the city did.”
Haines said in court papers that state law requires hiring from the top 10 scorers willing to accept the job and gives no discretion to the hiring authority.
“To hold otherwise would allow for political abuse and would undermine the civil service system,” he said.
Schor said in court papers that the city was not under any obligation to hire Conroy specifically. No one applicant has a clear right to be hired, he said.
The city argues that Conroy’s past employment is cause enough that he not be hired. Conroy, who had been a police officer, was terminated, rehired in a settlement and then resigned in 2001.
Schor also said in court papers that city council had suspended the rule that requires vacancies be filled from the top 10 applicants. City council used a section of Ohio law that allows other laws to be suspended to avoid federally prohibited discrimination.
Haines argued that the waiver is used only if necessary to comply with federal law concerning discrimination. He said the city failed to cite why council “believed” it was necessary.
Not long after the lawsuit was filed in 2005, Law Director Iris Guglucello told the city’s Human Relations Commission that, without a federal order, deviating from civil service rules in order to hire minorities isn’t permitted. Her comments are contained in the minutes of a commission meeting.
Guglucello said this past week that the city continues to use two lists for hiring. She referred questions about the lawsuit to Schor.
Haines said by using a minorities list, the city violated state law that prohibits an employer from discriminating on the basis of race and sex.
The lawyer said use of a minority list was done to give preferential treatment to some of those on the list. He said there already were minority candidates who scored high on the master civil service list — Wallace, Tipple and Gwen Graham, a white woman who ranked No. 4. Wallace and Tipple’s rankings eventually rose, to No. 7 and No. 9, respectively, on the master list because white men who scored higher did not appear for a physical exam.