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City urges court not to reconsider case

Youngstown hoping to keep ruling on former CDA director

YOUNGSTOWN — An attorney representing Youngstown urged the 7th District Court of Appeals not to reconsider its decision to dismiss an appeal from Taron Cunningham, fired as the city’s Community Development Agency director.

The court ruled June 22 not to hear Cunningham’s appeal, saying he had the option to have the city’s civil service commission rule on his case and 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 “for lack of a final and appealable order.”

S. David Worhatch, Cunningham’s attorney, has asked the court to vacate the judgment entry because it “did not apply the correct statutory standard in determining the ‘final’ nature” of Mahoning County Common Pleas Court Judge Anthony D’Apolito’s decision on the case and “committed an obvious error in its decision.”

But Benjamin G. Chojnacki, hired by the city for this case, wrote that Worhatch’s request “fails to demonstrate that this court made an obvious error in its decision issuing the dismissal entry or that this court failed to consider an issue of consequence when it should have been considered or that a miscarriage of justice will arise because of the dismissal entry.”

Worhatch contends the appeals court “misconstrued” a Feb. 26 D’Apolito ruling that treated his decision as a final one that addressed all issues.

MAYOR’S DECISION

D’Apolito ruled the city’s civil service 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. But the judge declined to rule on Cunningham’s request for back pay to a job with a $74,997.52 annual salary.

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

Chojnacki wrote that the appeals court correctly considered all of the issues “and properly concluded that they can be raised in the future, along with any other issues, after remand.”

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 city Law Director Jeff 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.

SECOND LETTER

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.

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