YOUNGSTOWN — An attorney for Brian Flynn has asked Mahoning County Common Pleas Court to uphold an arbitrator’s decision to reinstate him with back pay and dismiss the city’s lawsuit.

Flynn was fired as a Youngstown police lieutenant in December 2022 after being accused of dereliction of duty.

Representing Flynn, Kay Cremeans, an attorney with the Fraternal Order of Police, Ohio Labor Council, asked the court to dismiss the city’s motion to modify and vacate the arbitrator’s decision.

She wrote: “What the employer is asking this court to do is retry the case. The employer dedicated multiple pages of its motion to retry the case before the court. However, a retrial of the facts and arguments is not permitted.”

The case, filed March 26 by the city, seeks to overturn the Dec. 26 ruling by arbitrator Jerry B. Sellman that the city should have suspended Flynn for two weeks without pay “in light of certain mitigating circumstances and the employer’s progressive disciplinary procedures” rather than fire him.

Sellman ordered Flynn be reinstated with no loss in seniority or benefits and with back pay, though that amount should be offset by any compensation he’s received since his firing.

Flynn was hired in September 2023 by the village of Poland as a police officer.

In her filing, Cremeans also asked for interest on Flynn’s lost back pay.

Sellman determined Flynn “did engage in conduct that constituted neglect of duty, conduct unbecoming, incompetence and violations of standards of conduct for supervisors, managers and administrators,” but the city shouldn’t have fired him.

Flynn was charged with 14 misdemeanor counts of dereliction of duty, but the charges were dismissed.

In Cremeans’ response to the lawsuit, she wrote: “In an obvious last-ditch Hail Mary, the employer attempts to convince the court that the arbitrator award violated public policy. Like all the other arguments espoused by the employer, this argument must simply be rejected.”

The case was assigned to Anthony Donofrio, a former Youngstown deputy law director before he became a common pleas court judge. Donofrio recused himself from the case April 2 and asked it be reassigned. No judge has been assigned as of Tuesday to hear the case.

Flynn was fired Dec. 2, 2022, after an investigation of allegations that he failed to assign detectives to about 24 referrals from the Ohio Internet Crimes Against Children Task Force involving alleged child abuse and child pornography cases.

Flynn was the head of the Family Investigative Services Unit, now called the Special Victims Unit, and a Youngstown police officer since 1998.

Before his firing, Flynn was on paid administrative leave for more than 20 months.

A criminal investigation was conducted by Detective Brian Breeden of the Summit County Sheriff’s Office at the request of Jeff Limbian, then the Youngstown law director. Breeden turned over his investigation to the Youngstown Law Department, which filed the 14 misdemeanor counts in October 2022 in city municipal court.

In Cremeans’ request to dismiss, she wrote Flynn “was not aware that he would be receiving tips for which he was responsible for investigating,” and he did not have equipment he requested to investigate the state task force cases. Also, Flynn believed an officer in his unit was handling the tips from the state task force, Cremeans wrote.

She wrote that police Chief Carl Davis drafted a letter on Aug. 2, 2021, suspending Flynn for two weeks, but it was never given to the officer.

Paul Siegferth, who was Flynn’s attorney in the Youngstown Municipal Court case, filed a motion to dismiss contending the city prosecutor’s office failed to prove at a May 2023 hearing that no information from the police department’s internal affairs investigation was used in the criminal investigation of Flynn.

Breeden testified during a May 2023 hearing that he didn’t consider any of the internal affairs information in his investigation, but Siegferth argued the city failed to prove it didn’t use it.

Visiting Judge Mark Frost agreed and dismissed the case a month later.

A U.S. Supreme Court ruling — Garrity v. New Jersey — prohibits the use in a criminal matter of any “compelled statement” taken from a public employee during an internal affairs investigation.

The 7th District Court of Appeals in March 2024 ruled against the city, which appealed Frost’s decision, saying the judge’s ruling “in this case was the proper remedy.”

Sellman wrote in his decision that there is no dispute that Flynn “intentionally failed to act upon or follow-through on” the referrals from the Ohio Internet Crimes Against Children Task Force.

He wrote: “The arbitrator does not find from the evidence that (Flynn) purposefully flouted his duties to enforce the law. He clearly made incorrect assumptions and his reliance on those assumptions resulted in his violation of” city police rules.

In one case, Sellman wrote, a juvenile was sexually abused for more than 18 months before a county sheriff intervened and the perpetrator was arrested. Another case, Sellman wrote, involved six victims with the suspect sentenced to 30 years in prison.

Sellman wrote considering Flynn’s 26-year career and “his unfounded, yet mistaken, belief that others were handling” the cybertips as well as the lack of oversight from the state agency, he should be suspended without pay for two weeks, which was the initial decision of the city before filing criminal charges.

Sellman wrote the city’s contract with the police ranking officers union calls for progressive discipline. The city contends that policy doesn’t apply if the conduct is serious.

Adam Buente, a deputy city law director, wrote in the March 26 appeal: “Despite finding that Flynn ‘purposefully deleted’ these crime tips, the arbitrator conclusively determined that the ‘penalty of termination is not progressive in nature’ without making an express determination about whether the misconduct was serious. Such an overstep by the arbitrator evidences that the arbitrator exceeded his authority by not centering his decision on the most critical language of the collective bargaining agreement provisions regarding the applicability of progressive discipline.”

If there is a serious offense, as Buente wrote occurred with Flynn, progressive discipline doesn’t apply.

He wrote: “Imagine an officer has a perfect disciplinary history over a 26-year career, but one day, the officer got fed up with the chief of police and physically assaulted him in front of other (officers). Such misconduct would be ‘serious’ misconduct, progressive discipline would not apply and the city would have the right to terminate that officer’s employment immediately.”

Cremeans wrote: “What the employer appears to be saying is that it simply didn’t like the outcome of the arbitrator award. However, a party’s unhappiness with the outcome of an award is not a basis for vacating an arbitrator award.”

She added: “It can be surmised from the arbitrator’s ultimate findings and determination that he found this not to be a serious offense.”