Saturday, August 27, 2011
By Jeanne Starmack
CAMPBELL
A Mahoning County common pleas court magistrate has ruled that the city can fire a water- plant employee who had obtained a temporary restraining order prohibiting it from doing so.
Magistrate Timothy Welsh issued the decision Friday, which means plant operator Donald Jackson will not be granted a permanent injunction against his firing.
Campbell Mayor Bill VanSuch has said his intent to fire Jackson, who’s the son of 4th-Ward councilman and former city administrator Lew Jackson, is based Jackson’s failing a Civil Service test in March.
The city’s Civil Service Commission recommended in June that VanSuch terminate Jackson, who was hired by former mayor George Krinos last October, because he failed the test.
Jackson argued in his court petition that the Civil Service test was not administered properly. He argued that only a professional examiner can administer a civil service test, according to the city’s home-rule charter. Richard Grocutt, who prepared Campbell’s test, did not administer it. Instead, a member of the city’s Civil Service Commission did.
The city argued back that Jackson is a probationary employee under a union contract, and the mayor has discretion to fire him at will during his one-year probation.
Welsh said in his decision that he finds Jackson’s argument about the test administration “without merit.”
He said the Civil Service Commission is authorized by statute to conduct tests.
He also said that for a court to issue a preliminary injunction, the plaintiff has to show there’s no other remedy of law.
Welsh noted that the American Federation of State, County and Municipal Employees union had filed a grievance about the test administration, which the city denied. AFSCME didn’t pursue the grievance after that, he said.
“The grievance and arbitration procedures provided in a collective bargaining agreement constitute an adequate remedy of law,” he wrote.
He also said Jackson failed to prove he’d be irreparably harmed if he were fired, because if he could prove he was wrongfully terminated he could measure damage in terms of monetary compensation.
Jackson can appeal the decision.