November 27, 2014

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Fired Street Department head sues Avon for $2 million

AVON — A $2 million suit has been filed against the City of Avon, Mayor Jim Smith and several other officials by the city’s former streets superintendent who was dismissed after 16 years for failing a drug test, which violated a last-chance agreement governing his employment.

The suit was filed by Avon Lake attorney Gerald W. Phillips on behalf of William Biro, who was Avon streets superintendent from 1996 to Jan. 20, 2012, when he was fired by Mayor Jim Smith, who said he anticipated the lawsuit being filed.

“This has all the makings of a cheap novel,” Smith said of the lawsuit’s multiple allegations by Phillips that he set Biro up to be fired by “entrapping” him through a “conspiracy” that called for Biro to clean a six-mile section of French Creek inside the city limits.

In addition to compensatory and punitive damages, the lawsuit seeks to have Biro reinstated to his former job, from which Smith “illegally” dismissed him, the suit said.

The suit was filed Friday in Lorain County Common Pleas Court.Phillips, who was not reached for comment Saturday, alleges Smith set out to fire Biro so he could appoint City Council member Bryan Jensen as streets superintendent.

Both men have denied that charge.Biro was fired for violating terms of a last-chance agreement put in place after he was let go by the city in 2010 for failing a drug test.

Biro was later put back on the job after Phillips asked Smith to reinstate him, according to the mayor. Biro served a 60-day suspension for misconduct for violating the city’s substance abuse policies that involved undisclosed problems.

Terms of the last-chance agreement stated Biro could be subject to dismissal for “just cause,” including “serious misconduct or violation of city or departmental policy” within three years of returning to work.

His failure to comply with the mayor’s French Creek cleanup order constituted that violation, according to Smith.

The lawsuit claims Biro took and passed “excessive” additional drug tests which were given over and above random drug tests that were part of his last-chance agreement.But once Biro passed those tests, Smith then assigned Biro the French Creek project, which Phillips termed “an impossible task never done in the history of the city.

”The cleanup called for Biro and city workers to clear obstructions from the creek within the Avon city limits between the Sheffield and North Ridgeville borders during a 2½-month period from Aug. 17, 2011 to Nov. 1.

“If it was such an impossible job, then how come it was done by four guys in seven days?” Smith said. “And it’s already been done again this year.”

“If he (Biro) had done the job, and we weren’t asking him to walk the creek himself, we wouldn’t be here now over this,” Smith said.

The lawsuit claimed it would have taken at least six months to properly clear the section of French Creek of obstructions.

Biro also was assigned other jobs such as leaf pickup and snow-removal equipment maintenance, which pushed the creek cleanup work past the Nov. 1 deadline, said the suit, which also blamed last year’s heavy rains for slowing the work even more.

The suit also contends Biro’s rights were violated by not having his case heard by the Civil Service Commission, but city officials contended that Biro asked for and received a private hearing before a special hearing officer whose subsequent recommendation to the commission upheld Smith’s firing.

The suit also names Service Director Gerald Plas, City Engineer Robert Knopf, and Finance Director June Mitchell as defendants.

The case has been assigned to Common Pleas Judge Christopher Rothgery.

Contact Steve Fogarty at 329-7146 or sfogarty@chroniclet.com.