Fired CDA director’s court appeal denied

Fired CDA director had other options to get back pay

YOUNGSTOWN -- The 7th District Court of Appeals dismissed an appeal from Taron Cunningham against the city over his firing as the Community Development Agency director, after determining he has other options to get reinstated with back pay.

In a journal entry, the court decided that Cunningham has the option to have the city's civil service commission rule on his case and wrote that under the Ohio Constitution "this court's appellate jurisdiction is limited to the review of final orders of lower courts."

The court dismissed the appeal before a hearing occurred or filings were submitted "for lack of a final and appealable order."

The entry added: "In this instance, an appeal to our court is still available to either party from a final order entered in the case. Because the common pleas court's remand of this case to the commission for further proceeding does not foreclose appropriate relief in the future, it does not affect a substantial right of a party" and "is, therefore, not a final order reviewable at this time."

City Law Director Jeff Limbian, who had previously said the appeals process could take up to five years, said he was surprised by the court's quick decision.

"Usually it's a much more detailed process rather than a spontaneous reaction," he said. "It's usually more deliberative. But the law was clear about a final appealable order. He has the option" to be heard by the city's civil service commission.

Mahoning County Common Pleas Judge Anthony D'Apolito ruled Feb. 26 that the commission wrongly upheld Mayor Jamael Tito Brown's firing of Cunningham on March 8, 2019, because the mayor failed to list specific reasons in a termination letter, which violates a city commission rule.

D'Apolito ordered the commission's decision "be vacated" and that it have another hearing on the matter. The judge declined to rule on Cunningham's request for back pay to a job that paid $74,997.52 annually.

S. David Worhatch, Cunningham's attorney, said, "We'll be asking the court for reconsideration because it appears the court has misconstrued Judge D'Apolito's final judgment. The court has treated Judge D'Apolito's judgment as if it decided all of the issues in the case, but it didn't."

After D'Apolito's ruling, Brown wrote Cunningham a new letter March 12 with details firing him retroactively to March 8, 2019.

Worhatch then filed a motion urging D'Apolito stop a commission hearing -- contending an amended firing is not permitted under the commission's rules.

Cunningham filed with the court of appeals and on April 15 D'Apolito agreed, at the request of both sides, to halt the civil service commission hearing to allow the appeals court to decide.

With the appeals court ruling, the commission will likely move ahead with a hearing.

Brown had initially fired Cunningham in a two-paragraph letter on March 8, 2019, that didn't state the reason for his decision. It came after Limbian had a Jan. 16, 2019, predisciplinary hearing. After the hearing, Limbian recommended to the mayor that Cunningham be fired.

On Jan. 8, 2019, T. Sharon Woodberry, then the director of the city's Community Planning and Economic Development Department and Cunningham's supervisor, wrote Limbian outlying 26 issues with the CDA director and seeking an opinion on his firing. Limbian provided a nearly identical letter to Cunningham five days before the hearing.

In Brown's second termination letter to Cunningham on March 12, he also used virtually the same language in explaining why he was firing the CDA director.

Woodberry's letter read, in part, Cunningham's "inability to adhere to policy and rules that govern the workplace, incompetence, poor communication skills, misrepresentation of facts in his course of work, general insubordination, temperamental and retaliatory behavior, and failure to sufficiently provide guidance to employees directly under his supervision are problematic for this department."

Cunningham appealed the initial firing to the commission, which upheld the mayor's decision after a May 9, 2019 hearing, and again on July 1, 2019. It issued a final order on July 22, 2019.

D'Apolito ruled the commission "clearly failed to determine whether the notice of removal was in compliance" with its rule that "requires the removal order to include the reasons for termination."

Brown appointed Beverly Hosey, the city's compliance director, as interim CDA director in November 2019 with that becoming permanent in April -- pending the final outcome of Cunningham's appeal.

dskolnick@tribtoday.com