A judge has reversed a decision by the Hillsboro Civil Service Commission and issued a judgment in favor of former Zink administration assistant Kirby Ellison in regard to her firing in 2012.
In a decision filed last week, visiting Judge Dale Crawford found in Highland County Common Pleas Court that Ellison was a civil service employee at the time of her dismissal in 2012 after Drew Hastings became mayor, even though former Safety and Service Director Ralph Holt said in 2004 that he was moving her from classified to unclassified status. Crawford ordered the city to re-employ Ellison “with appropriate back pay.”
Todd Wilkin, Hillsboro safety and service director, said Monday that the ruling was being studied by city legal counsel. He said the city would likely appeal the decision.
The judge ruled that even though Holt said he intended to move Ellison to unclassified status, “the appointment was never placed in a journal at the Civil Service Commission… nor was the letter of appointment accompanied by a statement showing the fiduciary duties of the position.”
The city was represented in the case by Bob Cross, a Portsmouth consultant who represents the city in labor disputes, as he does for Highland County.
Fred Beery, the city law director, said Monday he was “amazed” at the decision.
The decision said that an opinion provided by Beery that Ellison’s position was “one of trust” was not relevant. On Monday, Beery agreed with that point, saying he had no part in the matter when it happened and was asked for his opinion later.
Beery said he had not had time to study the decision, but said it was his understanding that the court based its ruling in part on Civil Service rules that were recently enacted and not in force when the Ellison issue happened.
Beery last year provided Todd Wilkin, the current safety and service director, with a recap of an opinion he offered to city officials in 2004, saying, “I did give both the mayor (Dick Zink) and the director (Holt) opinions, in my capacity as Law Director, that they did not need any additional authority from council or the civil service commission to define the additional duties of Kirby or to determine her compensation since she was not in the classified civil service.”
Beery added, “I also recall Kirby expressing concerns over the protection of her employment by working outside the scope of the Clerk I position. I believe she accepted pay over and above that specified in the city pay ordinance – at least, I assumed that is why I was asked about the authority to define her role with the city.”
When Hastings took office in January 2012, he appointed Richard Giroux as safety director. On Jan. 3, 2012, Giroux wrote to Ellison, saying that her “services for the City of Hillsboro will no longer be required as of today.” That same day, according to records, Ellison wrote to the Hillsboro Civil Service Commission, asking the commission to review her termination.
“I believe this action was premature and did not take into account any of the civil service requirements for termination of an employee,” she wrote.
Ellison was hired by the city in 1995 as an administrative assistant in the classified civil service. When Zink became mayor in 2004, he appointed Holt as safety and service director.
“The undisputed testimony was when Holt took his position he wanted to give Appellant more money… but didn’t want to put her position in jeopardy,” the court decision states.
According to a 2004 letter from Holt to the Hillsboro Civil Service Commission, Ellison had served in a classified position as a grant writer until May 1, 2004. At that time, according to Holt’s letter, he announced that he would be “appointing Kirby Ellison from the Classified – Administrative Assistant II/Grant Writer position she presently holds to an unclassified position as an administrative assistant I/grant writer to partially replace Rebecca Creamer in the unclassified service, serving at the pleasure of the mayor.”
After Ellison was dismissed, the Hillsboro Civil Service Commission eventually sided with the city. But in overturning the decision, Judge Crawford wrote that Holt testified before the commission that “he made an appointment for the Mayor… which he has no authority to do, the appointment was never placed in a journal at the Civil Service Commission… nor was the letter of appointment accompanied by a statement showing the fiduciary duties of the position.”
Crawford added, “Other than Mr. Holt’s statement in his March 23, 2004 letter… that the position is unclassified, there is no evidence that Appellant’s position from which she was terminated was a position of trust or a Rule 5-06 secretary or clerk for the mayor.”
Ellison could not be reached for comment.
Reach Gary Abernathy at 937-393-3456 or on Twitter @abernathygary.