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Ruling favors city

May 6, 2013

Former Wapakoneta Fire Department Capt. Tom Stinebaugh

A federal arbitrator ruled last week to uphold a decision by Wapakoneta city administrators to demote a Wapakoneta Fire Department captain after determining the firefighter lied about talking to city councilors regarding the purchase of a new fire truck.

Former Capt. Tom Stinebaugh and his union representative claim his 1st Amendment right of free speech was violated and Stinebaugh has retained an attorney to file a federal civil suit against the city.

In a letter dated March 19, 2012, Safety-Service Director Bill Rains informed Stinebaugh he had been demoted from captain to firefighter. He had been placed on administrative leave on Feb. 27, 2012, pending an investigation of charges of dishonesty and insubordination.

Stinebaugh has taken issue with the city spending $476,000 on a new heavy rescue fire truck, when he thought the city could maintain the truck they owned at the time. He discussed the issue with Wapakoneta City Council members on his own time during the city’s annual budget process.

In his ruling filed April 29, arbitrator Charles Kohler wrote, “After consideration of all of the arguments and evidence presented at the hearing, as well as the post hearing briefs, the arbitrator concludes that the employer had just cause to demote the grievant (Stinebaugh) from fire captain to firefighter. The employer did not violate the collective bargaining agreement.”

A collective bargaining agreement is the contract signed between city administrators and the firefighters’ and captains’ unions.

Kohler also wrote Stinebaugh’s “conduct showed a defiant attitude toward authority” and Stinebaugh’s “conduct supports the city conclusion that grievant is unsuitable to remain in a position where he is responsible for supervising firefighters. The discipline was not arbitrary, capricious or discriminatory.”

Rains said little about the decision.

“The arbitrator made a ruling and it is what it is,” Rains said. “That’s it.”

He declined to comment further.

Stinebaugh’s union representative Roy Hollenbacher said he was surprised with the arbitrator’s decision.

“I think it stinks,” Hollenbacher told the Wapakoneta Daily News. “I thought prior to the hearing that Tom was wrongfully disciplined and I still do. I really, really think Tom did nothing wrong.”

“All I did was speak my mind,” Stinebaugh said about the ruling. “Does the end really justify the means here?”

Stinebaugh said he intends to have a civil suit filed against the city, Mayor Rodney Metz, Police Chief Russ Hunlock, Fire Chief Kendall Krites and Rains for violating his 1st Amendment rights.

According to the arbitrator’s ruling, Stinebaugh discussed the issue with Wapakoneta City Council President Steve Henderson and 1st Ward Councilor Jim Neumeier without informing or receiving permission from Krites.

According to the ruling, during an internal investigation on Jan. 10, 2012, Stinebaugh told Krites he was the person within the fire department who had addressed the purchase of a new heavy rescue fire truck with a councilor, having talked to the Council President Steve Henderson and only about general topics.

On Feb. 22, Stinebaugh admitted having also talked to 1st Ward Council Jim Neumeier prior to Jan. 10, according to a city document detailing a conversation during the internal investigation.

After interviews and an investigation conducted by Hunlock, Rains notified Stinebaugh by letter on March 19 that he was being demoted from captain to firefighter stating, “While you are not expected to always agree with everyone, you are expected to be honest and to follow directives. Not only is dishonesty unacceptable, but your failure to follow directives cannot be permitted.”

City administrators contend policy dictates Stinebaugh must inform his superior and must receive permission from his superior to talk with councilors. The arbitrator’s ruling states positions of power within a paramilitary operation, which the fire and police departments are, can be held to a higher 1st Amendment test based on an opinion cited from a U.S. 6th Circuit Court ruling.

Kohler’s ruling also addresses Stinebaugh’s 1st Amendment rights. The ruling states the fire department is a “paramilitary organization” and that a fire captain “is expected to promote and utilize ‘the chain of command both on and off the emergency ground.’ ”

The ruling states Krites never ordered Stinebaugh not to speak to city council members, but “it is well established that an employee’s exercise of his or her right to free speech may have negative consequences. The right must be balanced with the employee’s obligations to his employer.”

Kohler ruled Stinebaugh was talking to councilors as a fire captain and not as an ordinary citizen and had substantial knowledge that was not available to the public and that he knew councilors “would consider him as an expert with intimate knowledge of departmental operations.”

Hollenbacher said Stinebaugh had an opinion and stated his opinion to councilors which was not to buy the new fire truck. Hollenbacher contended Stinebaugh talked to councilors on his his day off, on his own time, using his own telephone and not as a fire captain.

Hollenbacher said Stinebaugh’s position obviously had no sway with councilors since they approved the purchase of the new fire truck.

“Talking to his councilors wasn’t a serious enough offense to deserve this kind of discipline,” Hollenbacher said. “This is good employee with favorable evaluations. This was a witch hunt from the beginning to demote Tom Stinebaugh and they got away with it.”

Stinebaugh said he believed the truth would come out during hearings held by the arbitrator and the former captain could not believe his concern regarding how $500,000 was going to be spent by the city cost him his position of captain.

“I will swear to God every word I said was the truth during the hearing — if they wanted the truth, they got it,” Stinebaugh said Sunday. “It wasn’t all pretty but it was the truth. There were circumstances I brought up that he (Krites) knew the answers but he knew the answers would help me.

“When I went in I wanted the truth to come out,” the 20-year firefighter and seven-year captain said. “The arbitrator didn’t consider my statements, not because they weren’t true but because I couldn’t prove it.”

Stinebaugh admitted he was becoming more vocal about fire department spending in recent years from the truck to paying $650 to firefighters just to travel to attend a weekend seminar.

He also questions the wisdom of the city spending tens of thousands of dollars to Clemans and Nelson to represent the city in this case. Stinebaugh estimates it is $32,000, but no city official could be reached this weekend to confirm the cost.

Stinebaugh also contended the city violated its own policy in regard to paid administrative leave, first with his demotion in February, and again with his firing in July.

Stinebaugh said if the ruling of his firing, which came in July 2012, is upheld then he stands to lose 50 percent of his pension.

An arbitrator is expected to hear arguments from the city and Stinebaugh regarding his firing in late August regarding an incident during the June 29 wind storm.

Stinebaugh was placed on paid administrative leave starting in early July after city fire officials claimed he left the scene of an accident on June 29 to respond to another accident alone. He allegedly drove off and stranded two firefighters at the first scene to respond to another accident.

According to city policy, two firefighters-EMTS must respond to the scene of an accident.

No date has been set for that hearing.

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