Appeal dismissed

Concord firefighter accused of misconduct at scene of blaze

A Concord Township firefighter accused of misconduct while at the scene of a blaze that destroyed the Willoughby-Eastlake Board of Education building will not get his day in court after all.

Douglas Bode was removed from his position as a part-time Concord Township fire lieutenant and reduced in rank to a part-time firefighter/paramedic following the March 14, 2017, fire. In addition, his pay was reduced and he was suspended for six months.

Bode appealed his suspension and demotion in Lake County Common Pleas Court.

But Concord Township trustees sought an order dismissing the appeal. Trustees contended Judge Vincent A. Culotta did not have jurisdiction to hear the appeal because it wasn’t filed in a timely manner.

Ohio Revised Code mandates that such appeals must be filed within 30 days of the relevant administrative decision. Bode’s suspension was approved at the trustee’s regular April 5 meeting, and Bode failed to file his notice of appeal until May 8, trustees argued.

In addition, case law has held that Bode’s

appeal was due no later than April 15 — 10 days after the issuance of the suspension and rank reduction, township attorneys said.

However, Bode maintained that the 10-day appeal process did not apply because the board failed to hold a hearing allowing him to defend himself.

Bode also argued that because the board’s actions were not memorialized in the meeting minutes and adopted by the board until April 19, his May 8 appeal was filed on time.

Bode also claimed the trustees’ decision must be voided because the board violated Ohio Sunshine Law by not stating a specific reason why they were going into executive session on March 27.

In November, Culotta ruled Bode’s case could go forward. At that time, the judge said he found no evidence that trustees talked about Bode’s suspension at a March 27 meeting to discuss personnel.

Trustees then asked the judge to reconsider his decision not to dismiss the firefighter’s appeal.

Trustee attorney Michael C. Lucas argued that Culotta’s decision was based on “misplaced reliance upon factual inaccuracies of the record” and “erroneous conclusions of law.”

According to Lucas, there was discussion to discipline Bode at the April 5 meeting. Those meeting minutes were formally adopted on April 19 and not on May 8, he added.

In his original judgment entry, Culotta wrote that he is unaware of any formal investigation or hearing to support the oral adoption of a suspension and reduction in rank.

After reconsidering, the judge reversed his prior decision denying the township’s motion to dismiss.

“The Court agrees that there was a factual mistake in the Court’s Oct. 26, 2017, judgment entry,” Culotta stated in his most recent ruling on the case. “The meeting in which the oral decision to discipline (Bode) occurred on April 5, 2017. Thereafter, on April 19, 2017, the board orally approved the minutes of the April 5, 2017, meeting.

“The Court previously found that regardless of whether the meeting minutes were orally approved on April 19, 2017, or May 8, 2017, or any other date in between, the decision was an oral decision and no written final order, adjudication, or decision of an administrative agency existed. The Court agrees that this is an incorrect finding.”

Culotta added that the evidence shows the meeting minutes were adopted on April 17. Since Bode failed to file his appeal within 10 days after the meeting minutes were adopted, the appeal must now be dismissed.

The judge also ordered Bode to pay his own legal costs.

Concord Fire Chief Matthew Sabo detailed several reasons for the disciplinary action in a March 27 letter to Sabo, but said the most egregious offenses occurred while fighting the fire at the 102-year-old Board of Education structure.

Sabo said Bode failed to arrive ready to perform duties such as fire attack, had to be ordered by another officer to button his coat and misled a division supervisor to believe he was at the scene operating as a Kirtland fire captain rather than a Concord lieutenant.

Bode was asking Culotta to reinstate his lieutenant position and award him back pay and attorney fees.