Appeals board overturns city's firing of Lane
Former building inspector's discipline modified to a 30-day suspension with orders he be given a non-supervisory position with the city
Paul Lane finally got his day in court after three years of legal wrangling to get an opportunity to challenge the merits of his termination.
After an eight-hour hearing Nov. 29, the Pickerington Personnel Appeals Board unanimously ruled by a 3-0 vote to modify Lane's discipline to a 30-day suspension and ordered he be placed into a non-supervisory position with the city.
The PAB found that Lane did violate city policy, however, not enough to warrant termination.
The former Pickerington building inspector was fired by acting City Manager Mike Taylor, Pickerington's chief of police, in November 2009 as the result of allegations by city officials that he accessed pornography on his work computer.
Up until that time he had been employed by the city for 10 years.
Lane tried to appeal the firing to the city's Personnel Appeals Board 12 days later, but his request for a hearing was denied by Pickerington Law Director Phillip Hartmann, based on the premise Lane, as a department director, was an "unclassified employee" and therefore ineligible to appeal his firing to the PAB.
Lane had maintained he was a classified employee and had the right to a hearing before the PAB.
In March 2010, Lane filed a complaint in the Fairfield County Court of Appeals for a writ to compel Pickerington and the PAB to conduct a hearing and issue a determination on the merits of his appeal.
The writ was denied so Lane took his case to the Ohio Supreme Court, which ruled 6-1 in October of 2011 to reverse the Court of Appeals decision and send the case back for further review.
May 29 of this year the PAB unanimously ruled Pickerington failed to prove Lane was an unclassified employee prior to his November 2009 termination.
The ruling enabled Lane to challenge the merits of his firing, which he finally did Nov. 29 in the hearing before the PAB.
With all the procedural issues decided, the crux of the case Nov. 29 came down to whether Lane accessed the pornography on his city-issued computer and, if so, whether termination was appropriate or less severe sanctions short of termination should have been imposed instead.
Taylor testified he fired Lane after it was discovered that pornography was on his computer. Taylor testified Lane admitted accessing the pornography at a pre-disciplinary hearing on Oct. 30, 2009.
Taylor testified he exercised his personal judgment in making the determination to fire Lane and that he fired Lane because having pornography on a city computer was a "terminable offense."
Former Pickerington Finance and Personnel Director Linda Fersch, who sat in on the pre-disciplinary hearing, testified Lane never said "he directly did this" in reference to accessing the pornography on his computer.
"He never said anything other than he 'may have opened something,' " Fersch said.
Pickerington Police Cmdr. Matt Delp, who, in conducting the initial investigation of Lane's computer, testified 30 images he thought "were suspect" were found on Lane's computer, but he had no evidence to indicate any of those images were accessed after summer 2005.
After the close of the hearing, the PAB went into executive session for deliberation and then came out and made its ruling without any further remarks.
After the ruling, John Camillus, attorney for Paul Lane, said the city failed to carry its burden in showing the firing of his client was proper.
"In my view, the city failed to demonstrate that (the) images in question were the responsibility of Lane's," Camillus said.
"(The) city had no explanation of why the images would be there in two isolated brief periods since the (summer) of 2005 and then nothing else from when they did a computer search in late 2009," he said.
"It was not Paul who was responsible," Camillus said.
"If Paul was responsible for looking at inappropriate images, there would be evidence of that in the 41/2 years that followed," he said.
Camillus said termination was not appropriate even if the images were Lane's based on the fact the city applied less severe disciplinary sanctions to three other similarly situated employees.
"(Prior to the Paul Lane matter in 2009) there were two other city employees who were found to be responsible for porn on city computers, but they were not terminated, they were suspended," Camillus said.
"There was also a more egregious example. So two similar, one far more egregious. None of those individuals were terminated.
"The city has a policy of not implementing disparate discipline"
Camillus said the ruling mandates the city pay Lane his back pay. The directive that Lane be placed in a non-supervisory position with the city remains to be determined.
"(The) PAB didn't order him into a specific position," Camillus said.
"I'm not clear there's a position open for him to go into.
"We're going to hash out how this is going to work," Camillus said.
John McLandrich, the attorney who represents Pickerington, said the city has not yet decided to appeal the matter.
"That's certainly a possibility," said McLandrich, who added calculation of back pay "is really not for the (PAB) to address.
"It depends on what occurs and what the parties agree to reach," McLandrich said. "It could become the matter of a later court proceeding.
"The calculation (of back pay) would have to await a decision of what (position) Paul Lane is reinstated to," McLandrich said.