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YOUNGSTOWN -- With the Youngstown Police Department reinstating Brian Flynn, fired as a lieutenant in December 2022 after being accused of dereliction of duty but winning numerous legal challenges, city council refused to increase the number of lieutenants on a temporary basis.
Council voted 6-1 on Wednesday against legislation, sponsored by Mayor Derrick McDowell, to increase the number of lieutenants from eight to nine until one retires so no one would be demoted with the reinstatement.
The only member of council to vote in favor of the legislation was Samantha Turner, D-3rd Ward.
Not only will the last lieutenant promoted be demoted to detective sergeant, but to accommodate that person, the last promoted detective sergeant will return to being a patrol officer.
Law Director Adam Buente said a lieutenant will retire in the next year so those dropping a rank will be promoted again when that occurs.
Before the vote, Buente said police Chief Sharon Cole wanted to keep everyone in place and "not punish those who did nothing wrong."
Youngstown was left with little choice but to reinstate Flynn after the 7th District Court of Appeals ruled 3-0 on July 10 to uphold Mahoning County Common Pleas Court Judge Maureen Sweeney's Nov. 20 decision affirming an arbitrator's ruling that the officer should have been suspended for two weeks without pay rather than be fired.
The appeals court determined Sweeney made the right decision when she ruled arbitrator Jerry B. Sellman correctly interpreted the collective bargaining agreement that Flynn's union has with the city regarding levels of misconduct.
Sellman's Dec. 26, 2024, ruling called for Flynn, fired Dec. 6, 2022, to be reinstated to the department with no loss in seniority or benefits and with back pay though that amount will be offset by compensation he's received since then.
The question of how much the city owes Flynn remains unanswered.
The amount owed to Flynn would also include salary raises as well as extra payments given to officers for hazardous duty, longevity for years of employment, uniform allowance, a bulletproof vest allotment, shift differential and presumably a 10% bonus given in December 2024 to every officer from $882,762 not used to hire new police officers from a $1.2 million American Rescue Plan grant the city received in 2022.
After being fired by Youngstown, Flynn was hired Sept. 26, 2023, as a full-time officer by the village of Poland, where he's been working since. Flynn was hired Oct. 21, 2024, by New Middletown, as a part-time officer, but he resigned April 22 rather than be terminated after the department launched an investigation into his conduct.
In its July 10 decision, the court of appeals wrote Youngstown "argues on appeal that the arbitrator failed to determine whether Flynn's actions constituted justifiable cause for termination of employment. This assertion is not supported by the record, however. The arbitrator expressly concluded that there was no just cause for termination."
In his ruling, 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 they all were dismissed.
Flynn was fired Dec. 6, 2022, after an investigation determined he failed to assign detectives to at least 40 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 Aug. 31, 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.
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.
A Youngstown Municipal Court visiting judge dismissed Flynn's case in June 2023.
The 7th District Court of Appeals in March 2024 ruled against the city, which appealed the municipal court'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 Cole's Sept. 2 reinstatement letter to Flynn, she said he would be the officer in charge of the 911 center.
At Wednesday's meeting, Cole said Flynn would "never be able to bid on" his old position again as long as she is chief.
The reinstatement letter said that Flynn's return date is Sept. 21, but he would have to serve the two week suspension and wouldn't be back on the job until Oct. 2.
Flynn is disputing the suspension with his attorney arguing it should be docked from the two weeks of paid administrative leave.
The city hasn't made a decision yet on how it will handle that.
LAWSUIT SETTLEMENT
Council also voted 7-0 on Wednesday to settle a wrongful death lawsuit for $2.5 million to be paid over six years to the executor of an estate.
The board of control has to finalize the settlement with Cheryl Durig of Newton Falls, the executor of Thomas Morar's estate.
The lawsuit alleges Morar of Youngstown was injured June 17, 2017, while riding a motorcycle on Oak Street Extension on the city's East Side when a tree fell on him. Morar died April 2, 2019, at the age of 80.
If the case had gone to trial, a decision against the city could have put it in serious financial jeopardy with it unable to use statutory immunity as a defense. The city also doesn't have insurance coverage for any financial ruling against it or for a settlement because of a separate legal matter with its former insurance company.
The settlement is one of the largest -- if not the largest -- in at least decades.
The settlement includes the city admitting no liability.
Durig filed the lawsuit June 14, 2019, accusing the city of being liable for Morar's death.
The city had unsuccessfully sought to include a motion in the case for "statutory immunity," a common defense used by governments in Ohio that gives them immunity from liability as a defense in many court cases in which it is performing a government or proprietary function.
The Ohio Supreme Court in a 7-0 decision Oct. 16 ruled Youngstown failed to timely introduce the defense.
The Supreme Court on July 24, 2024, accepted the city's appeal of a 2-1 decision on Dec. 7, 2023, by the 7th District Court of Appeals that concluded Thomas J. Pokorny, a visiting judge, was correct when he ruled April 28, 2022, that the city couldn't raise statutory immunity as a defense. Pokorny ruled the defense was untimely as it was filed two years and nine months after the city was sued in the wrongful death claim.
The case was sent back to common pleas court with visiting Judge W. Wyatt McKay, a retired Trumbull County Common Pleas Court judge, assigned Nov. 22 by Ohio Supreme Court Chief Justice Sharon L. Kennedy to oversee the matter.
The settlement was ironed out with the assistance of Anthony Cornicelli, a Trumbull County Common Pleas Court magistrate who served as mediator during an Aug. 6 discussion that lasted more than eight hours.
The city has paid $186,619 in legal fees to the Akron law firm of Roetzel & Andress for this case as of November. The amount paid to the firm since then isn't known.
Pokorny's decision was appealed May 6, 2022, by the city and subsequently rejected by the 7th District. The appeals court also rejected the city's reconsideration of its decision on Feb. 29, 2024. The city appealed April 15, 2024, to the Supreme Court, which accepted it July 24, 2024.
The Supreme Court decision stated it found "no abuse of discretion by the trial court in denying the city's motion for leave to amend its answer."
City officials accepted a $150,000 settlement Sept. 23, 2024, from U.S. Specialty Insurance Co. (USSIC), its former insurance company, which sued Youngstown contending it wasn't responsible for any financial claims in the Durig case because it wasn't notified of its existence for almost five years.
U.S. District Court Judge John R. Adams ruled Sept. 14, 2023, that USSIC was not responsible for coverage because of the city's "significant missteps and mistakes that cannot be undone," as well as the city's "extreme incompetence."
The city appealed the decision to the U.S. Court of Appeals for the Sixth District on Oct. 13, 2023, and settled for the $150,000 almost a year later.
The city has already paid more than that to Roetzel dating back to November so the settlement costs are the city's sole responsibility.