By Robert Higgs
The Plain Dealer, Cleveland
CLEVELAND, Ohio — The city’s firefighters reported Thursday that they have sued the city, asking the Cuyahoga County Common Pleas Court to order Mayor Frank Jackson’s administration to dismiss Fire Chief Angelo Calvillo for violating terms of the charter and civil service rules.
The action contends that Calvillo illegally participated in political activity by helping to circulate candidate nominating petitions for Jackson’s re-election in 2017. Certain political activity is barred for civil service employees under the charter, which provides for fines or jail time for violations. The charter also states that employees who violate the rules should be fired.
The union representing the firefighters reported filing the lawsuit electronically late Thursday after the clerk’s office had closed. Cleveland.com could not confirm the filing with the court but obtained a copy of the complaint from the union.
“To date, Chief Calvillo remains as fire chief and the defendants have failed and refused to remove him from his position of employment …,” the suit says.
“Defendants’ failure to remove the Chief Calvillo for his conduct constitutes a continuing failure of each of the defendants to enforce a public right to a democratic and unbiased government comprised of trustworthy government actors.”
The action lists the union and its president, Francis Lally Jr., as plaintiffs. Lally is a lieutenant with the fire department.
The defendants are the city, the members of the Civil Service Commission and Cleveland Public Safety Director Michael McGrath.
The Jackson administration declined to comment. It has a long-standing policy of not commenting on pending litigation.
Previously Law Director Barbara Langhenry has said she thinks the union has misinterpreted the charter and rules and is wrong.
The union, meanwhile, also has threatened to seek criminal prosecution of the chief by swearing out a misdemeanor charge accusing him of violating the charter language, said the union’s attorney, Joseph Diemert. That could happen as soon as Friday morning.
What’s the dispute?
The court action is the latest move in a back-and-forth exchange that began three weeks ago. That’s when the union, the Association of Cleveland Fire Fighters, sent letters to Law Director Barbara Langhenry, an assistant city prosecutor and the secretary of the Civil Service Commission demanding Calvillo’s dismissal and criminal prosecution.
The union, Local 93 of the International Association of Fire Fighters, says Calvillo violated a charter provision that says civil service employees may not “act as an officer of a political organization or take part in a political campaign, … or circulate or seek signatures to any petition provided for by primary or election laws, or act as a worker in favor of or in opposition to any candidate for public office.”
A person who violates the provisions could be charged with a misdemeanor crime, fined up to $1,000, jailed for up to six months and “shall immediately forfeit his office or employment,” the charter says.
Calvillo testified at a deposition in 2017 that he helped circulate petitions while off duty for Jackson’s re-election that year.
What’s happened so far?
Langhenry issued a statement backing the chief and saying the charter prohibitions didn’t apply to non-partisan races such as Cleveland’s mayoral contests.
A few days later, the union set a deadline for the law director to act, warning that it might otherwise go to court. It cited case law which attorney Joseph Diemert, who represents the union, said supported the union’s position.
Langhenry on Wednesday, one day after the union’s deadline for action, issued a response in which she disputed the union’s legal analysis again and said the chief did nothing improper.
“The cases upon which you rely involve activities that are different from circulating a nominating petition in a non-partisan election,” Langhenry wrote. “You are raising an issue about whether a person may voluntarily and on his own time circulate a petition to nominate a person for candidacy in a non-partisan election.”
Do the union and chief get along?
The fire union has long been at odds with Calvillo.
The union has complained about working conditions in fire stations and raised concerns about worker safety related to staffing and equipment.
In February, the union took a no confidence vote. About 620 members voted and more than 600 supported the no-confidence designation.
Also in February, the union sued over efforts by Calvillo to change the start time for firefighters working 24-hour-shifts from 8:30 a.m. to 7 a.m. The city fought the case, arguing it should be dismissed because the State Employee Relations Board rather than the Common Pleas Court had the jurisdiction to hear it.
The Ohio Supreme Court agreed and in May ordered Cuyahoga Common Pleas Judge Nancy Margaret Russo to cease exercising jurisdiction over the case.
In April the union testified before Cleveland City Council about equipment issues and station house conditions. All of the fire department’s rescue-squad vehicles, nearly half of the fire engines and more than half of the hook-and-ladder trucks were rated in fair or poor condition, the union said.
All 40 of the city’s fire stations had problems with cockroaches, in many cases because sewers regularly backed up in the stations. They charged Calvillo has not adequately addressed the issues.
What happens next?
The union’s suit is an action seeking a writ of mandamus, a court order telling the government to fulfill its duties. Those actions tend to move more quickly in the courts than a regular civil suit.
The union still may seek a criminal complaint against the chief.
The charter language provides that violating the politicking prohibitions is a misdemeanor crime. The union may seek to swear out a charge against the chief to try to prod the city into prosecuting.
That could be a hard sell, though. Prosecutorial discretion is a broad power and a Cleveland prosecutor, who would be an employee of the law director, may balk.
———
©2019 The Plain Dealer, Cleveland