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Four Fostoria police officers who claim they were denied the opportunity to seek the chief's job lost their bid to have the Third District Court of Appeals oust Fostoria Police Chief John McGuire.
The Lima-based court this week dismissed a petition seeking the chief's ouster and an order commanding the city and its civil service commission to offer a competitive promotional examination to fill the post.
The petition had been filed by Capt. James Dieter, Capt. William Brenner, and Patrol Officers Clayton Moore and Jeff Huffman, who claimed that because the city hired Mr. McGuire without holding a competitive exam within the department, they were "denied the opportunity for one of them to attain the FPD chief of police position."
The appeals court said in part that the petition was "duplicative" of a lawsuit brought in Seneca County Common Pleas Court in October, 2005, in which the officers' union, the Ohio Patrolmen's Benevolent Association, had attempted to stop the city from hiring a police chief from outside city ranks.
Common Pleas Judge Steve Shuff initially sided with the city in that dispute, but his decision was overturned by the appeals court and remanded to the judge. Earlier this week he ruled that he had no authority to remove Chief McGuire but wrote, "If necessary, the Fostoria Civil Service Commission shall conduct competitive examinations for any vacancy in the Fostoria Police Department which vacancy occurred prior to January 1, 2007."
A city charter approved by voters in November took effect Jan. 1 and included the provision for hiring police and fire chiefs from outside city ranks.
City Law Director Alicia Wolph-Roshong said yesterday that to her the ruling means the civil service commission does not need to hold a promotional exam because it is not "necessary" at this time.
"The only thing the civil service commission can do is have a competitive test if there is a vacancy. There isn't a vacancy, period, end of story," she said.
Attorney Marilyn Widman, who represents the patrolmen's union, said it was "absolutely undisputed" that there was a vacancy for police chief prior to Jan. 1, 2007, and Judge Shuff ordered that the civil service commission hold a test to fill any vacancies prior to Jan. 1.
"We're definitely looking for the civil service commission to take some action, and we will be looking to enforce the order, and in all likelihood I do think that will end us back in Judge Shuff's court, arguing over interpretation," she said. "[His decision] wasn't definitive enough to close the case."
William Brady, attorney for the officers who had sought the chief's dismissal, said his clients could choose to refile their petition in the appeals court in part because of Judge Shuff's ruling that he had no authority to remove Mr. McGuire.
"How can [their petition] be 'duplicative' if the trial court does not have the discretion or power to remove the police chief?" Mr. Brady asked.
Amid the legal wranglings between the city and the police department, Mr. McGuire, 38, is scheduled to go on trial Monday in Seneca County Common Pleas Court on two counts of tampering with records, both third-degree felonies, and two counts of falsification, which are misdemeanors. Prosecutors allege he misrepresented his credentials when he applied for the chief's job last year.
Yesterday the chief waived his right to a jury trial, meaning his case will be heard and decided by Judge Michael Kelbley. Among the evidence expected to come into play is a bachelor's degree obtained for Fostoria's police dog, Rocko, from Concordia College and University in the Virgin Islands, where Mr. McGuire also said he received a degree.
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