Ohio Firefighter Wins $251K In Back Pay In Residency Case

In 2006, the Ohio Legislature enacted a statute known as R.C. 9.481, prohibiting political subdivisions from establishing residency requirements. The statute became effective May 1, 2006. Numerous court challenges to the constitutionality of R.C. 9.481 were filed by employers. In 2009, the Ohio Supreme Court upheld R.C. 9.481, effectively eliminating residency requirements for municipalities throughout the state. The City of Akron was a party to one of the cases heard by the Ohio Supreme Court.

While the court challenges were pending, and almost six months after the effective date of R.C. 9.481, the City of Akron terminated the employment of firefighter Timothy Semelsberger for a violation of the residency requirement within the City’s Charter. Shortly thereafter, the City reinstated his employment subject to a last-chance agreement that provided that Semelsberger would live in the city.

In 2008, the Fire Department ordered another investigation into Semelsberger’s residency, determined that he did not have a permanent residence within the City of Akron, and terminated his employment. The grievance was pending in arbitration when the Ohio Supreme Court upheld R.C. 9.481 – effectively invalidating residency rules in the Akron City Charter. The City offered to reinstate Semelsberger, but without any back pay. Semelsberger and his labor organization rejected the offer, and the arbitration proceeded.

An arbitrator found that the City did not have just cause to terminate Semelsberger and ordered him reinstated with $251,421.01 in back pay. The Arbitrator declined to award interest and noted that the award reflected the fact that “there is no doubt the Grievant would be entitled to more damages had Semelsberger provided better documentation and corroborating evidence.”

The City challenged the Arbitrator’s back pay award, arguing that the Arbitrator exceeded his authority. The Ohio Court of Appeals rejected the City’s appeal and confirmed the arbitration decision.

The Court started with the proposition that “the authority of courts to vacate an arbitrator’s award is extremely limited. Reviewing courts are limited in their role to a determination of whether an award draws its essence from the relevant contract or whether the award is unlawful, arbitrary, or capricious. Reviewing courts cannot review claims of factual or legal error with respect to the exercise of an arbitrator’s powers. Once it is determined that the arbitrator’s award draws its essence from the agreement and is not unlawful, arbitrary, or capricious, a reviewing court’s inquiry for purposes of vacating an arbitrator’s award is at an end.”

These principles, the Court found, required it to uphold the award. The Court noted that it “is clear that the City disagrees with the substance of the award, but the City cannot obtain a review of factual or legal error with respect to the exercise of the Arbitrator’s powers. The City has not provided this Court with any argument demonstrating that the award did not draw its essence from the collective bargaining agreement, nor has it demonstrated that the award is unlawful, arbitrary, or capricious. It is not this Court’s responsibility to construct those arguments on the City’s behalf.”

The City also argued that the arbitration award violated public policy because the Arbitrator awarded back pay for a period of time when Semelsberger’s firefighter/EMT certification had lapsed. The Court found that “the problem with this position is that the award at issue did not require the City to reinstate Semelsberger despite his lack of certification. Instead, the Arbitrator awarded Semelsberger back pay for the period during which he had determined that the City had wrongfully terminated his employment. It is true that Semelsberger allowed his certification to lapse during a portion of this timeframe. This Court must emphasize two things, however. First, there is no documented and well-defined public policy that prohibits the payment of back pay to a wrongfully terminated firefighter whose certification lapsed during his unemployment. Second, and of equal significance in the context of this case, is the fact that the City cannot use the cloak of public policy to seek a review of the merits of the arbitration award.”

City of Akron v. Akron Firefighters Association, 2015 WL 1227836 (Ohio App. 2015).