Council is ignoring the law and putting the city at risk

Council is ignoring the law and putting the city at risk

Elected officials are generally immune from being held personally liable for the actions they take in their official capacity, and there is a good reason for that. Who would run for office if every vote could result in a lawsuit that could cost the politician his savings or his house?

But that protection is not absolute. Some actions by elected officials are so obviously counter to public policy that when those actions result in expense to the taxpayer, the elected officials should be held personally to account.

We would suggest that the vote by seven Youngstown City Council members Wednesday to pursue a method of hiring for the fire department was reckless. It obviously runs counter to the law prohibiting discrimination as defined, quite specifically, by a federal appeals court and the Supreme Court of the United States.

Defying the law

In refusing to abandon an outdated practice of hiring from separate lists of candidates — one for white males and one for women and minorities — council members have chosen to ignore the legal observations of the law department and the recommendation of Mayor Jay Williams. They are placing themselves above the law in such an obvious manner that the tax-paying residents of Youngstown should not have to pay for their recklessness when the bill inevitably comes due.

The 7th District Court of Appeals ruled recently that former Mayor George McKelvey does not enjoy immunity in a lawsuit involving alleged discriminatory hiring in the police department in 2005. Fire Chief John O’Neill said this week that the city will hire six white men and three minority males no later than Feb. 13, presumably using the dual-list system. If so, both he and Mayor Williams may find it difficult to use a defense that they were just following council’s orders.

Shreveport, La., followed a two-list policy very much like Youngstown’s for decades, until the 5th Circuit Court of Appeals ruled in a 2006 case that the practice discriminated against white men. The court acknowledged that there was sufficient evidence of past discrimination to initiate the two-test system in 1980, but there is insufficient evidence to support it today.

And last July, ruling in Ricci v. DeStefano, the Supreme Court of the United States struck down a decision by New Haven, Conn., to suspend making promotions in its fire department because the city felt an insufficient number of minority candidates would be among those promoted.

We are not addressing whether those court decisions were right or wrong. We have supported affirmative action initiatives in the past. But the operative word there is past. Like it or not, the Supreme Court has made it clear that absent evidence that the test on which hirings or promotions are based was discriminatory, a city cannot use race as a determining factor in its personnel decisions.

For city officials to ignore that reality — no matter how pure they may believe their motives are — is to invite a lawsuit that the city will lose. City officials have a duty to recognize that and to act accordingly.

Fighting to win

We have in the past urged the city to fight the good fight — when there was reason to believe the fight could be won. For instance, we supported the city’s efforts to challenge the Ohio General Assembly’s action in overturning residency laws in the state of Ohio. Youngstown, among other cities, lost that case, but there is an enormous difference.

When the Ohio General Assembly passed a bill outlawing residency laws, it usurped the power of local governments to set what had been seen for decades as reasonable rules for hiring and retaining public employees. There was no U.S. constitutional issue, because the U.S. Supreme Court had long ago ruled that residency laws were legal, essentially stating that while a person has a right to live wherever he or she chooses, there is no constitutional right to hold a particular job.

In the residency case, the Ohio General Assembly stretched a single section of the Ohio Constitution to give itself new power over local government — and in the case of Youngstown, where residency requirements had been established by a popular vote, the General Assembly exercised a veto over city residents. Unfortunately, the Ohio Supreme Court — made up of a majority of members who claim to be conservative — endorsed the power grab.

The city lost, but, frankly, it shouldn’t have, and it was right to fight the battle.

It would be foolhardy for the city to attempt today to enforce a residency requirement — the law is now clear.

City council should recognize that the law on using separate, racially based hiring lists is equally clear. Defying the law puts the city at risk, and it should put each individual who aids and abets the effort at risk as well.