City of Lorain to judge: Let us fire cop who lied to get new job

The city of Lorain has asked a Lorain County Common Pleas judge to allow it to fire a police officer who allegedly admitted to forging a passing result on a physical fitness test in order to get a job with the North Olmsted Police Department last year. The motion filed Friday asks the court to vacate an arbitrator's award that found in favor of Fraternal Order of Police Lodge No. 3 last month and reinstated fired police officer Michael Schenek. A pair of attorneys representing the city filed the motion Friday. The matter is assigned to Judge Christopher Rothgery's court. Lorain police Chief James McCann declined to comment on the matter Friday, saying the matter was ongoing litigation. A message seeking comment was left for FOP Lodge No. 3 President Jamie Ball. A winner of the police department's Life Saving Award in 2019, Schenek had been with the department for three years before he applied for a job with North Olmsted police in 2021, according to the city's complaint. North Olmsted gave Schenek a conditional offer of employment in June 2021. One of the conditions was that he pass a physical fitness test to be done at Cuyahoga Community College that month. Schenek submitted a certificate to North Olmsted police "indicating that he had passed the physical fitness test." When North Olmsted police called Tri-C, they found out the certificate was forged and Schenek had not passed the test, according to the city's complaint. Schenek allegedly admitted the forgery to North Olmsted police Detective Manuel Roman during a subsequent phone call. North Olmsted police revoked the conditional employment offer because of the lie and contacted McCann, according to the city's complaint. An internal Lorain police investigation found Schenek violated codes of ethics and standards of conduct, and McCann referred the matter to an Employee Review Board. Schenek waived his right to appear at an ERB hearing and pleaded "no contest" to the allegations against him, according to the city's complaint. The ERB recommended McCann fire Schenek in a July 2021 report. The board also expressed concerns that Schenek might be charged criminally and questioned if he should be allowed to testify in court in the future, the complaint said. Following McCann's recommendation, Safety Service Director Sanford Washington fired Schenek on July 26, 2021. The day he was fired, Schenek filed a grievance against the city "alleging that he was terminated without just cause and that his discipline was not administered in a fair, equitable and timely manner," according to the city's complaint. He asked for reinstatement, back pay and expungement of his personnel file. The grievance was denied, but the FOP appealed to arbitration on his behalf in August. The parties selected James Mancini as arbitrator, and a hearing was held Nov. 15. Mancini decided in favor of the FOP and Schenek on Feb. 14, finding that the city "did not establish a just cause standard for Schenek's termination of employment and that he was to be immediately reinstated as a police officer" at full seniority, according to the city's complaint. No lost wages were awarded. In its complaint, the city argued Mancini exceeded his powers or "imperfectly executed" them. "Under the law, an arbitrator is confined to interpreting the provisions of a collective bargaining agreement as written and to construe the terms used in the agreement according to their plain and ordinary meaning," attorneys Margaret O'Bryon and Kevin Butler of the law firm McDonald Hopkins in Cleveland wrote in the motion on behalf of the city. "An arbitrator may not create a contract of his or her own by imposing additional requirements not expressly provided for in the agreement." The union contract "does not provide for an award where a grievant is immediately reinstated in their employment with full seniority with no lost wages," they wrote. An arbitration award requiring the city to reinstate Schenek "who has committed an admitted act of forgery, a felony, by altering a document to obtain employment with another police department violates a well-defined public policy against police officers engaging in acts of dishonesty," the attorneys wrote. The city argued that Mancini relied on "hearsay testimony" by FOP officials that they cleared any future courtroom testimony by Schenek with a prosecutor and Lorain County Prosecutor's Office Chief of Staff James Burge despite Schenek allegedly having committed a crime of dishonesty. A message seeking comment on the allegation was left for Burge on Friday. "The arbitrator's decision that because Schenek's dishonest behavior occurred while he was off-duty and was not in any way related to his job as a police officer nor directly reflected upon city's police department violates public policy that police officers are held to higher standard of conduct," the attorneys wrote. As of 8 p.m. Friday, Schenek had not been charged with any crimes in Lorain County or Cuyahoga County in connection with the allegations of forgery, according to a search of court records in both counties. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him on Twitter @daveobrienCT.