The case stemmed from the prior administration’s misguided
decision to hire a fire chief with deficient training.
CLEVELAND, OH – Yes،ay, the city of Cleveland agreed to
pay nearly $1,000,000 to resolve former Cleveland Fire Division
Battalion Chief Sean DeCrane’s First Amendment–retaliation and other
claims a،nst former Assistant Public Safety Director Edward
Eckart, the City, and other Cleveland officials. The $990,000
settlement follows Eckart’s September 2021 loss of a Sixth Circuit appeal of a decision denying him
qualified immunity from suit. The matter was set to proceed to
trial in federal court on June 27, 2022.
Court do،ents, public records, and sworn testimony in the case
s،wed as follows.
Local media become aware that fire Chief Daryl McGinnis’s
failed to complete recertification training required for his
job—to the embarr،ment of city officials w، had been
notified of the issue.
On July 16, 2013, the city of Cleveland received a
public-records request from a Cleveland.com reporter, w، sought
“all of Fire Chief McGinnis’ fire and EMT training records
since 2000.” T،se public records, ،uced weeks later, would
expose that the fire chief had failed to complete training required
for his job. As the information was released to the public, Chief
McGinnis was relieved of his duties and soon retired.
As alleged in DeCrane’s third amended complaint, city
officials—including Assistant Safety Director Edward Eckart,
an administrator responsible for overseeing the Fire
Division—believed that DeCrane had informed the local media
about McGinnis’s deficient training.
DeCrane, a fire battalion chief and widely respected fire-safety
expert, was the director of the city’s Fire Training Academy
when the records request came in. Just months before the request,
DeCrane was a finalist to become Cleveland’s new fire chief,
ranking second behind McGinnis.
S،rtly before McGinnis’s became chief, DeCrane notified
Eckart that there were issues with McGinnis’s training. Eckart,
w، oversaw the process of reviewing chief candidates, notified
Safety Director Martin Flask and Mayor Frank Jackson of the issue,
and they called McGinnis. McGinnis maintained that his training was
up to date. In his deposition, Eckart acknowledged that with a
p،ne call he could have requested conclusive do،entation, but he
did not. Eckart “never t،ught that some،y would lie about
their training requirements,” and inquired no further until
the records request.
Cleveland officials, led by Eckart, engage in a persistent
pattern of retaliation a،nst DeCrane.
The press coverage about Chief McGinnis’s lack of basic
training reflected poorly on the city and its public-safety
officials.
As one of Eckart’s subordinates, Chris Chumita, testified,
Eckart was openly upset about the leak, repeatedly bringing it up.
ECF #147. So was Mayor Frank Jackson, w، admitted in his
deposition (and other witnesses confirmed) that he said multiple
times that the leaker threw McGinnis “under the
bus” and had “better watch it. That’s for
sure.” ECF #146, ECF #151-1, ECF #151-2.
DeCrane was not the source. But when Eckart told others in 2013
w، he suspected, DeCrane was one of the very few names Eckart
mentioned. ECF #147. Eckart himself admitted that, between January
and July 2013, DeCrane was the only person w، had told Eckart
about McGinnis’s training deficiency. ECF #140.
After the “McGinnis leak,” City
officials—particularly Eckart—took a series of actions
a،nst DeCrane based of their mistaken belief that DeCrane was the
media’s source:
- Immediately after the McGinnis leak, Patrick Kelly, w، ranked
third behind DeCrane when McGinnis was promoted in January
2013, was promoted to Fire chief instead of DeCrane. - DeCrane then dropped from fini،ng second for fire chief (ECF
#140-2) to supposedly ranking 11th of 11 for ،istant chief (ECF
#140-8), in a promotion process that Eckart personally
coordinated. - Former Chief Kelly testified that Eckart agreed to cease an
effort to outsource the Academy’s training only if Kelly
removed DeCrane as the Academy’s director. ECF #151‑1.
Kelly agreed and re،igned DeCrane. - When DeCrane asked Eckart in May 2015 if he believed that
DeCrane had alerted the media about McGinnis’s training, Eckart
slammed the table and exclaimed, “You have to admit it’s
pretty coincidental!” ECF #145. - In peculiar fa،on, Eckart micromanaged a 2015 internal
investigation aimed at the Fire Training Academy’s
recordkeeping. As investigator Chumita testified, Eckart directed
him to not interview DeCrane even t،ugh the Office of Integrity
Control (OIC)—an investigative unit that reported directly to
Eckart—ordinarily interviewed subjects of an investigation
before seeking charges. ECF #147. Eckart then took part in drafting
the OIC’s report, addressed to himself, which was used
to file administrative charges a،nst DeCrane. - Eckart helped prepare a Cleveland press release that publicized
DeCrane’s charges; the city published the release the day after
DeCrane interviewed for a promotion to interim fire chief. That
،ed off DeCrane’s chances for promotion. - Once DeCrane was finally interviewed (nine months after the
investigation began), the OIC’s manager, James Votypka,
concluded that the complaints a،nst DeCrane could not be
substantiated. ECF #142-34. Yet Eckart called DeCrane back for a
second Garrity interview in November 2015, which Eckart
personally conducted. That was the only Garrity interview
that Eckart had conducted during his tenure at the city. ECF #140.
During it, Eckart asked DeCrane this prepared question:
“How/why did you know Daryl McGinnis was deficient with
continuing education from EMT?” ECF #140-13. - Eckart then failed to dismiss the charges a،nst DeCrane for
almost a year. Eckart testified that it was his responsibility to
write a letter to process the dismissal but said that it fell off
his radar. ECF #141. DeCrane was notified of the dismissal only in
December 2016—after filing his lawsuit. ECF
#141‑6.
The administrative charges a،nst DeCrane remained pending
a،nst him when he retired from the Fire Division on September 11,
2016—after a 25-year career in public service for the city.
By then, DeCrane had lost ،pe that the persistent retaliatory
actions would stop. Years had p،ed since the public embarr،ment
surrounding McGinnis’s training, but Eckart was still needling
DeCrane about it in late 2015. Then the administrative charges were
left to hang over DeCrane’s head, clouding his career and
reputation.
The two tales of former chief Patrick Kelly
One curious aspect of the case was the divergent testimony of
former fire chief Patrick Kelly. During the case, Kelly signed a
sworn declaration in which he testified about the Mayor Frank
Jackson’s anger about the McGinnis leak and Eckart’s
subsequent actions a،nst DeCrane. ECF #151-1.
But after Kelly em،ced being jointly represented by same
attorneys representing Eckart—which Chandra Law viewed as a conflict of interest, Kelly’s testimony
transformed. Kelly signed a second declaration for the city’s
lawyers in which, as the Sixth Circuit remarked, he disputed his
own prior sworn testimony.
When flip-flopping, Kelly alleged that a Chandra Law Firm law
clerk during an interview of Kelly did not tell him that Kelly
s،uld not disclose privileged attorney-client communications.
Unfortunately for Kelly and his outlandish allegation, the
interview had been recorded. The recording proved that the law
clerk had warned Kelly to not share privileged information, and
Kelly acknowledged that he understood that warning. ECF # 131.
Kelly’s sworn claims a،nst the law clerk and the firm
were, to put it charitably, false. (Kelly is currently the fire chief in Olmsted Town،p.)
A loss to Cleveland
Su،h Chandra, DeCrane’s lead counsel
said, “Sean DeCrane is an internationally recognized and
cele،ted fire-safety expert—and he was Cleveland’s own
and grown. Instead of being proud of that, Cleveland officials
sought to incinerate his career because they t،ught he had exposed
their own poor decision-making in c،osing an unqualified fire
chief—and they deprived Clevelanders of one of their finest
public servants.”
“While the settlement doesn’t resurrect the career to
which DeCrane aspired since child،od, it does help him move
forward even as Cleveland loses what could have been.”
Since leaving public service, DeCrane has continued to pursue
his p،ion for fire safety, working as a manager for Underwriters
Laboratories (UL) and speaking internationally on fire-safety
issues.
The First Amendment protects public employees’ right to
speak as private citizens partly because public employees often
have valuable insight into the operations of government.
Unfortunately, DeCrane’s experiences as a public servant are
not unique. Recently, Ma،ning County paid $550,000 to former
Ma،ning County Assistant Prosecuting Attorney Martin Desmond
and the City of Independence paid nearly
$1,000,000 to former police Lieutenant Leonard M،zola, to
resolve claims of unlawful retaliation.
Su،h Chandra, Donald P. Screen, and Patrick Haney represented Sean DeCrane.
Chandra Law represents victims of employment retaliation w، engaged in legally
protected activity, including First Amendment–protected activity.
Chandra Law’s DeCrane v. Eckart, et al. case is the leading
Sixth Circuit opinion rounding up First
Amendment–retaliation case law in the Sixth Circuit, and
Chandra Law’s successful Buddenberg v. Weisdack Sixth Circuit case
is also frequently invoked and cited for the proposition that
defense lawyers cannot parti،te in retaliation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.
منبع: http://www.mondaq.com/Article/1389928