Ohio Firefighter Ordered Reinstated

An Ohio firefighter terminated following a positive cocaine test has been ordered reinstated by 8th Ohio District Court of Appeals.

The decision issued on March 12, 2012 involved firefighter Anthony DeCarlo, of the Parma Fire Department, who was terminated on December 8, 2009. The grounds for the termination was a positive cocaine test along with deceptive answers to questions regarding cocaine use.

Parma Firefighters, IAFF Local 639 filed a grievance over DeCarlo’s termination. In December, 2010 the arbitrator found the city lacked just cause for the termination and ordered DeCarlo reinstated immediately without backpay.

The city filed suit in the Court of Common Pleas seeking to vacate the arbitrator’s ruling on the grounds that he “exceeded his authority, or imperfectly executed the same, or that the award was unlawful, arbitrary, capricious, and/or fails to draw its essence from the collective bargaining agreement.”

The trial court upheld the arbitrator, concluding that provided “the arbitrator’s award draws its essence from the parties’ contract and is not unlawful, arbitrary or capricious, the reviewing court has no authority to vacate the award.”

The city appeals the trial court’s ruling to the 8th District Court of Appeals, arguing that public policy prohibits the reinstatement of an acknowledged drug user. In a straightforward ruling, the 8th Division agreed with the trial court. Here are some of the key quotes from the decision:

  • “there is no established public policy regarding terminating an employee for testing positive for a controlled substance” that would require an arbitrator to rule as a matter of law that the employee must be terminated
  • “we find that the award draws its essence from the parties’ agreement and is not unlawful, arbitrary, or capricious”
  • “we find that the arbitrator’s decision to reinstate DeCarlo comported with the goal of the parties’ agreement, especially in light of the fact that DeCarlo had successfully completed a substance abuse program in April 2010. Moreover, the decision was not unlawful, arbitrary, or capricious. We decline to examine the particulars of the arbitrator’s decision, as urged by the city — our review is not de novo”

Here is a copy of the decision.

Despite the ruling three weeks ago, DeCarlo has not been reinstated as the city contemplates an appeal to the Ohio Supreme Court.

More on the story.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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