CANTON, OH – An investigation of possible shift-trading abuse by Canton firefighters resulted in findings strikingly similar to those of a recent probe in Cleveland, but could result in a markedly different outcome.
As in Cleveland, some firefighters in the Stark County seat admitted they accepted money to work parts of shifts for colleagues, who then worked other jobs or attended school. And the Canton investigators concluded the practice constituted a crime.
But Canton officials opted to fire — rather than prosecute — five firefighters cited by investigators, while Cleveland’s investigators have recommended charging five firefighters under either misdemeanor or felony statutes.
“After a review of all available records and interviews with key personnel, I conclude that the crime of Theft in Office likely took place,” police Lt. John Gabbard wrote. “However, I believe that the obstacles in this case will make prosecution very unlikely.”
As part of a months-long examination of payroll abuses by Cleveland firefighters, The Plain Dealer also reviewed records from investigation into shift trading by Canton firefighters.
Canton’s fire chief became concerned last December about excess hours worked by a young firefighter, who had been in an accident. Payroll records showed the firefighter had worked more than 255 hours beyond his regular shifts — in three months.
A clerk also alerted the chief to overtime sheets filed by firefighters for days that they were not scheduled to work. The clerk attributed that pattern to a growing trend of partial trades.
After a two-month investigation, veteran Canton police officers came to the same conclusion as Cleveland investigators — that some firefighters had violated Ohio law by paying others to cover all or parts of their assigned shifts.
But police and prosecutors also concluded that proving charges in court would be problematic, despite the admissions from five firefighters that they had accepted or made payments as part of shift trades.
In a summary, Lt. Gabbard offered a variety of reasons why the case could prove difficult to prosecute. He cited a lack of records for many of the trades and vague union contract language that didn’t give a timeframe for repayment of trades. Investigators also found that at least some managers knew about the payments for trades.
Massillon’s Chief Prosecutor John Simpson, who reviewed the completed investigation for Canton,agreed in a March letter to the city.
Simpson also disputed assertions made by a lawyer representing several firefighters that the exchange of money did not constitute an illegal payment to work shifts, but instead represented anominal conveyance fees for the hardship of working extra hours.
“However you chose to pursue this matter, it is my opinion that partial trades for cash needs to be terminated immediately,” he wrote. “Obviously this could be accomplished by the filing of criminal charges against the individuals involved. It can also be accomplished by taking disciplinary action against the individuals involved.”
The Ohio Attorney General’s office also weighed in with a tepid view of the case, saying in a letter to the city that there was “insufficient evidence” at the time to warrant the initiation of a criminal complaint.”
The trading of shifts is a legal and longstanding practice in fire departments across the nation. In many cases, trades are recognized — and sometimes restricted — by contracts between the cities and firefighters’ unions.
But retired federal prosecutor Ronald Bakeman, who headed Cleveland’s probe, reported that firefighters paying — or accepting payments — as part of shift trading violated state laws governing public officials.
Bakeman said in recent interview that prosecuting firefighters or any safety forces is a difficult proposition.
“Going after firefighters is not a lot of fun. It’s tough,” he said. “But it doesn’t mean we should turn a blind eye to law violations.”
In his report, Bakeman cited a provision of Ohio Revised Code prohibiting public officials from paying others to do their official duties or to accept payment for doing another public official’s duties. He also cited theft in office, a felony.
But Bakeman, who worked with Internal Affairs Sgt. Daniel Ross, encountered some of the same complications as did Canton police.
Cleveland auditors and Bakeman cited inadequate or conflicting records of firefighter attendance and shift trading.
In addition, his report also asserts that at least some supervisors and others in the department’s chain-of-command had knowledge about the abuses or that their indifference allowed “black market, back room, illegal monetary payments” to flourish.
Cleveland fire supervisors denied knowing about payments.
Bakeman said none of those factors change his finding the law was broken and the firefighters should be prosecuted. He said that he worked closely with the Ohio Ethics Commission, which governs the conduct of public officials and employees. He said he suggested that Canton officials do the same.
Certain details brought up in the Canton case could complicate perceptions, Bakeman said, but the law is clear and contract language — vague or otherwise — doesn’t excuse those who break the law.
“Once the money transferred hands, the crime is completed,” he said. “Those things could be brought up but the law is pretty clear. Making up a shift or not doesn’t mean a person was not paid and it wasn’t a crime.”
Ultimately, whether the five Cleveland firefighters cited by Bakeman will be charged is being left up to Cuyahoga County Prosecutor Bill Mason, who said his office will review the city investigation. Another firefighter already has pleaded guilty to illegally paying colleagues to work for him.
The city has the authority to bring misdemeanor charges against the other five, if Mason chooses not to prosecute.
Frank Szabo, president of the Cleveland firefighters’ union, declined to discuss specifics of theinvestigations in Canton and Cleveland.
But Szabo said that the union also has already agreed to cap trades that firefighters can owe or be owed at 144 hours — or six 24-hour shifts.
Canton safety officials declined to comment on their decision-making because the threatened legal challenges by the fired firefighters.
Meanwhile, the city has some changes, including ordering partial shift swaps to be repaid within a year.
Earlier this month, according to records of an administrative hearing, Canton Safety Director Thomas Ream said the fired firefighters had violated core values of the department. He also asserted that their conduct was criminal.
Among those fired was the fire union president Rosario Carcione.
At his hearing, Carcione told city officials that that he gave money for gas and food to co-workers to thank them for filling in for him and that he planned on repaying the shifts.
Union officials did not respond to calls for comment in this story.
Carcione told The Canton Repository, “We have not broken any state or federal laws. We have not broken any rules, policies or regulations of the Canton Fire Department. We are being unjustly punished for exercising our rights under the collective bargaining agreement.”