BUCYRUS—In an effort to understand the basis of the argument Interim Law Director Brian Gernert presented at a special council meeting on Thursday night, he submitted the following statement to Crawford County Now:

I have continued to research this issue and am even more resolute in my opinion that Council and/ IAFF 1120 have acted outside the scope of their authority and absent action taken in a timely manner (specifically to repeal the legislation or vote to not override a veto, litigation seems imminent).

Often the most difficult part of any lawyer’s job is communicating to a client they cannot do something or explaining why their actions are not supported by law. I take no pleasure in having to be in a position which seems antagonistic towards the Bucyrus Fire Department.

These men and women are some of the bravest and hardest-working individuals in our community and emulate the values, morals, and ethics which our community is built upon. The requirement of the position of Law Director, however, is to impartially evaluate the relevant code, statute, contract, case law and make an independent opinion based on the totality of the information.

The Law Director DOES NOT represent council, the administration, the police department, the fire department, members of the labor force or community, but represents the City of Bucyrus and its interests as a whole. Often times this means I do represent an individual entity of the City, such as when the Board of Zoning was sued, the three lawsuits against City Council, the City’s litigation against the engineers of the WTP, prosecuting criminal and traffic cases brought by the Police Department, issuing collection letters to Townships on behalf of the Fire Department, and representing the Police Department against a meritless mandamus claim. However, when two bodies of the City government are at odds with each other, my role is to impartially evaluate the facts, circumstances, and applicable law surrounding and issue and give a thorough and well-reasoned response as to the likely outcome of the situation if Court or other agencies intervened. In conducting this evaluation, personal relationships with firefighters, mayors, service-safety directors, council members, and the public cannot and are not considered. Further, the underlying merits of which side is doing the more noble act cannot be considered. What is considered is a plain examination of the relevant statutes, codes, contracts, and case law, evaluating the procedural and substantive issues that will be relevant in a Court of Law or administrative proceeding.

As you are aware, Council has the ability to amend Bucyrus Codified Ordinance as it sees fit, subject to the limitations contained elsewhere. In the case at hand, the relevant limitation exists in the IAFF Local 1120 Union Contract, effective January 1, 2022, through December 31, 2024. First and foremost, one must conduct a plain reading analysis of the same. Where the language of the Contract is unambiguous, a Court will not disturb and is not allowed to interpret the document to give it any meaning other than the plain language of the document. As such, Article 6.01 of the IAFF Contract, Management Rights, Specific Rights, specifically reserves the authority of “determining the number of persons required to be employed, laid off or discharged for just cause,” “determining the starting and quitting time and the number of hours to be worked by its employees” and “making any and all reasonable rules and regulations” to the administration. This is the plain language of the Contract, which was negotiated and voted and approved unanimously by council. Further, Article 8 et seq., Labor-Management Committee, indicates, “The parties recognize that certain subjects, such as equipment, job duties, work schedules and assignments, and various similar management functions are not subjects for formal negotiations. Nevertheless, the parties also recognize that the Union may wish to present its views on such subjects so that such views may be considered by the administration”.

Section 8.02 indicates, “For this purpose, a Labor-Management Committee shall be established. The Committee shall consist of the Chief, the Service-Safety Director, the Law Director, and three (3) bargaining unit members designated by the Union”. As such, the IAFF’s desire for mandated minimum staffing must go through the proper channels as bargained for and contracted. Council is not the appropriate body to make such decisions as Council has already authorized the contract and given that authority to the Labor-Management Committee.

Additionally, as I stated at the meeting and in previous correspondence when the parties participated in Fact-Finding with Susan Fernandez, the issue of minimum staffing was litigated and decided upon by Ms. Fernandez. In her fact-finding report, which Council approved, Ms. Fernandez indicated, “New minimum staffing Article not added to contract, should be addressed at a Labor-Management Meeting.” Council voted to adopt the fact-finding report, which mandated the issue of minimum staffing be resolved pursuant to the procedure outlined in Section 8 of the IAFF Contract. Further, council subsequently approved the IAFF Contract with no language pertaining to minimum staffing included. If minimum staffing was an issue Council wanted to mandate, they missed their opportunity by first adopting the Fact Finders Report and then adopting the IAFF Contract. At these points, Council relinquished any control over the minimum staffing issue to the administration through the Labor-Management Committee.

Mr. Myers indicated that Council had the ability to legislate minimum staffing because Seven Hills had done so previously. Having not had the opportunity to review the Seven Hills situation, I could not intelligently comment on the same. Subsequently, however, in reviewing Seven Hills Firefighters’ Union Contract, Article 30 specifically provides, “It has been agreed that there shall be at all times a minimum of not less than five (5) bargaining unit members scheduled for duty at all times.” This is relevant for three main reasons. First, Seven Hills specifically included staffing in the Union Contract, something that Bucyrus could have done but did not. Second, by litigating this issue and deferring to and adopting the Fact Finder Report, Council conceded to the resolution Ms. Fernandez issued. Finally, the language requires five bargaining unit members to be scheduled. It does not address the requirement of whether someone would need to be called in to fill in for an individual exercising a compensatory day off.

Finally, as to the Contract with the Townships to provide Emergency Medical Services, Bucyrus would not be in breach of the plain language of the contract by altering minimum staffing. Although, as Lieutenant Herschler pointed out, when reading certain provisions of the Contract, one may come to the conclusion we would be in breach, once again, using contract construction and interpretation, one must evaluate the plain language of the contested language as a whole. The contested contract provision states:

“For each alarm originating in said CCWJAD, the City shall, to the best of its ability, furnish the necessary equipment and manpower to provide emergency medical services, through the City manpower and equipment, AT THE SAME LEVEL OF SERVICES AS PROVIDED WITHIN THE CITY. The City shall notify the CCWJAD Board of Trustees of any material change of services that are planned or will occur during the term of the EMS Contract, at least thirty (30) days prior to any such changes taking place.”
Since the City of Bucyrus would have continued to schedule 6 firefighters per shift and continue to provide the same services within the city as it provides to the townships, there is no change of services which would necessitate the thirty-day notice provision.

In conclusion, personal feelings aside, Bucyrus City Council does not have the authority to legislate minimum staffing requirements pertaining to the Bucyrus Fire Department. I fully support working through the Labor-Management Committee to resolve this critical issue for the safety of the firefighters and citizens of Bucyrus. We must do so legally and according to our contractual obligations. In acting outside Council’s authority and having the IAFF negotiate directly with Council, I believe the situation is such that protracted litigation is imminent and further believe Council and IAFF Local 1120 will end up losing this litigation on the merits.

 

Sincerely,

Brian N. Gernert,
City of Bucyrus Interim Law Director
500 S. Sandusky Avenue
Bucyrus, Ohio 44820
(419) 562-6767 ext. 237