Investigation of Fire Chief Paul Kerr Scioto Valley Fire District 100 N. Main Street, LaRue, Ohio (Amended Report) ‘On May 12, 2021, a resolution was passed by the Board of the Scioto Valley Fire District to hire David J, Stamolis, Attorney at Law as a private citizen pursuant to R.C, $05.38 to investigate any possible wrongdoing of Scioto Valley Fire District! Chief Paul Kerr in his handling, ‘of what will be referred to as the ‘Seiter Rd. Fire’ which took place at 4775 Seiter Rd., New Bloomington, Ohio on the moming of April 4, 2021. (Easter Sunday) Background of Even On April 4, 2021 at approximately 5:34 A.M. a 911 call was received by Marion County Central Dispatch reporting a fire st 4775 Seiter Rd? located in Big Island Township, Marion County, Ohio. This portion of Big Island is in the portion of the Township that receives fire coverage from New Vision Fire Department. Dispatch initially dispatched New Vision Fire and Marion Township Fire. Engine 314 from Marion Township Fire left Marion Township Station 2 at 5:37 A.M. and was the first to arrive on scene at 5:46 A.M. At 5:54 A.M. Green Camp VFD Tanker 820 and Marion Twp. Fire Tanker 321 arrived on scene. Over the next 15 to 20 minutes several other apparatuses were requested to be dispatched by Fire Command. Fire command was Marion Township Fire due to the fact they were the first on the scene. At approximately 6:10 A.M. Central Dispatch requested a tanker from Scioto Valley Fire District. The firefighters at the station called Chief Kerr and he advised not to send the tanker. ‘The firefighters at the station reported back (o Central Dispatch that they were not going to respond. At 6:16 A.M. Central Dispatch requested an additional Squad respond to the scene from the Scioto Valley Fire District. Chief Kerr called into Central Dispatch and advised Sgt. Solon, “We are not going to this call.” When pressed by Sgt. Solon, Chief Kerr responded, “No, nope. We have no mutual aid with ‘No Vision’, yeah we are not going to Big Island at all.” Chief Kerr appears to laugh at the beginning of this exchange. Issue( Chief Kerr’s failure to allow Scioto Valley Fire Districts apparatus to respond to a fire in the geographic territory of New Vision Fire Department along with his statements to Sgt. Webb from Central Dispatch are the main issues to be investigated. Interviews and Evidence Gathered: * Scioto Valley Fire District is made up of four political subdivisions that are t's members; the Villages of LaRue and New Bloomington and Montgomery and Bowling Green Townships all in Marion County, Ohio. 2 The home was a total loss and an individual lost his life as a result of the fire, There is no information that the ‘behavior of Chief Kerr led to the death of that individual. 1pPage‘As part of the investigation, I spoke with and/or interviewed the following individuals* 1. Phillip ‘Butch’ Winslow, President of the Scioto Valley Fired District Board and Montgomery Township Trustee. 2. David Trihaft, Vice-President of the Scioto Valley Fire District Board and Bowling Green Township Trustee. 3. Lance Roberts, Member of the Scioto Valley Fire District Board and Village of La Rue council member. 4, Bill McElroy, Member of the Scioto Valley Fire District Board and Village of New Bloomington council member. Chief Ben Meddles, Marion Township Fire Department. Firefighter J.J. Wollett, Mation Township Fire Department. Firefighter Ben Bowdre, Marion Township Fire Department. (Officer in Charge) Firefighter Zack Murdock, Scioto Valley Fire Department. (Received Garrity and Piper advisements and audio recorded) 9. Firefighter Adam Van Duzen, Scioto Valley Fire District. (Received Garrity and Piper advisements and audio recorded) 10. Chief Paul Kerr, Scioto Valley Fire District. (Received Garrity and Piper advisements and ‘was represented by an attorney. Audio recorded) 11. Chief Larry Williams, New Vision Fire Department 12. Tom Ford, Fiscal Officer for the Scioto Valley Fire District and Montgomery Township provided supplemental materials. 13, Penny Fogle, Fiscal Officer for Big Island Township provided supplemental materials. Pertinent Statutes: 124,34(A) lays out the framework for the discipline or removal of public employees in the classified civil service. It states in pertinent part The tenure of every officer or employee in the classified service of the state and the counties, civil service townships, cities. city health districts. general health districts, and city school districts of the state, holding a position under this chapter, shall be during good behavior and efficient service. No officer or employee shall be reduced in pay or position, fined, suspended, or removed, or have the officer's or employee's longevity reduced or eliminated, except as provided in section 124.32 of the Revised Code, and for se incompetency, inefficiency, unsatisfactory performance, dishonesty, drunkenness, immoral conduct, insubordination, discourteous ireatment of the public, neglect of duty, violatid of any policy or work rule of the officer's or employee's appointing aulhority. violation of this chapter or the rules of the director of administrative services or the commission, diy other failure of good behavior, any other acts of misfeasance, malfeasance, or nonjeasance inoffice, or conviction of ¢ felony white employed in the civil service. The denial of a one- * All interviews took place at Piacentino and Stamolis, Attorneys at Law, 355 E. Center St, Marion, Ohio. “Chief Willams was not comfortable with his statement being recorded. 21P eaetime pay supplement or a bonus to an officer or employee is not a reduc purposes of this section. yn in pay for R.C. 505.38(A) lays out the guidelines to discipline or remove from his/her position a firefighter or fire chief employed by a township or joint fire district. This section refers to several additional sections in the portion of the revised coded generally reserved for municipalities. It reads in pertinent part: ...The board shall provide for the employment of firefighters as it considers best and shall fix their compensation, No person shall be appointed as a permanent full-time paid member. whose duties include fire fighting. of the fire department of any township or fire district unless that person has received a certificate issued under former section 3303.07 or section 4765.55 of the Revised Code evidencing satisfactory completion of a firefighter training program. Those appointees shall continue in office until removed from office as provided by sections 733.35 to 733,39 of the Revised Code. To initiate removal proceedings, and for that purpose, the board shall designate the fire chief or a private citizen to investigate the conduct and prepare the necessary charges. in conformity with those sections. RC. 733.35 ‘The mayor of'a municipal corporation shall have general supervision over each department and the officers provided for in Title VII of the Revised Code, When the mayor has reason to believe that the head of a department or such officer has been guilty. in the performance of his official duty, of bribery, misfeasance, malfeasance, nonfeasance. misconduct in office, gross neglect of duty. gross immorality, or habitual drunkenness, he shall immediately file with the legislative authority. except when the removal of such head of department or officer is otherwise provided for, written charges against such person. setting, forth in detail a statement of such alleged guilt, and, a{ the same time. oF as soon thereafler as possible. serve a true copy of such charges upon the person against whom they are made. Such service may be made on the person or by leaving a copy of the charges at the office ‘of such person, Return thereof shall be made to the legislative authority, as is provided for the return of the service of summons in a civil action. RC, 733.36 Charges filed with the legislative authority under section 733.35 of the Revised Code, shall be heard at the next regular meeting thereof. unless the legislative authority extends: the time for the hearing, which shall be done only on the application of the accused. The accused may appear in person and by counsel. examine all witnesses, and answer all charges against him. The judgment or action of the legislative authority shall be final, but to remove such officer the votes of two thirds of all members elected thereto shall be required. RC. 733.38 31% opeFor the purpose of investigating charges filed pursuant to of a municipal corporation may issue subpoenas or compulsory process to compel the attendance of persons and the production of books and papers before it, and such legislative authority may provide by ordinance for exercising and enforcing this section. RC. 733.39 In all cases in which the attendance of witnesses may be compelled for an investigation under section 733.38 of the Revised Code. any member of the legislative authority of the municipal corporation may administer the requisite oaths. and such legislative authority hhas the same power to compel the giving of testimony by attending witnesses as is conferred upon courts. In all such cases, witnesses shall be entitled to the same privileges and immunities as are allowed witnesses in civil cases. Witnesses shall be paid the same fees and mileage provided for under section 1901.26 of the Revised Code. and the costs of all such proceedings shall be payable from the general fund of the municipal corpor Pertinent Case Law: Insubordination “This is a succinct definition of the term “insubordination.” and we adopt it for our purposes here. We therefore hold that in a proceeding under R,C. 3319.16 for the termination of a publi school teacher's contract. “good and just cause” includes insubordination consisting of a willful disobedience of. or refusal to obey. a reasonable and valid rule, regulation, or order issued by @ school board or by an administrative superior.” Freshwater v. Mt. Vernon Schools Bd, Of Education, (2013) 137 Ohio St.3d 469 Nonfeasance “Nonfeasance." for purposes of statute allowing the removal of a public official for misconduct in office, is the omission of an act which a person ought to do, "misfeasance" is the improper doing of an act which a person might lawfully do, and “malfeasance” is the doing of an act which 1 person ought not to do at all. In Removal of Kuehinle, (2005) 161 Ohio App.3d 199 Gross Neglect of Duny “Gross neglect of duty” is more than mere neglect and occurs when such neglect of duty. either from the gravity of the case or the frequency of the instances. become so serious as to endanger or threaten the public welfare. Vajner v. Orange, (1963) 119 Ohio App. 227 Pertinent Policies:The Scioto Valley Fire Department has a policy and procedure manual entitled, “Scioto Valley Fire District, Rules, Regulations, Policies and Procedures.” Several portions of this manual are pertinent concerning these above-described matters. Those portions are: 1, 100.05(2) Disciplinary Actions (Exhibit 1) 2. 101.01 Code of Conduct. (Exhibit 1) 101.01(1) state's, “As a basic condition of membership, all members have an obligation to conduct their official duties in a manner that serves the public interest, upholds the public trust, and protects the departments resources. To this end all members have the responsibility 10:" (©) Ensure that personal interests do not come in conflict with official duties and avoid bot actual conflicts of interests and the appearance of conflicts of interest when dealing with vendors, customers, and other individuals doing business or seeking to do business with the department. (©) Conduct all dealings with the public and other public service organizations in a manner that presents a courteous, professional, and service oriented image of the department. (@) Avoid any behavior that could fall under the definition of misconduct. 101.012) State’s, “Officers and supervisors shall set an example for other members and have a responsibility to ensure that their activities and decisions pertaining to community services, personal actions, and the management of public funds are consistent with the department's policies and practices. Summary of Interviews: Scioto Valley Fire District Board Members: Phillip ‘Butch’ Winslow was interviewed on 5/24/2021, David Trihaft was interviewed on 5/25/2021 and Lance Roberts along with Bill McElroy were interviewed on 6/2/2021. (separately) Al four members seemed to be pleased with Chief Kerr's operation of the Fire Department up until the Seiter Rd. Fire. Each member advised that there was no policy” in place that directed the Scioto Valley Fire Department the permission not to respond to a fire in New Visions territory." + 100,05 roughly follows R.C. 134.34 as well as .C. 05.38. However, 100.05 provides three separate categories of offenses that then contain the type of discipline that can be handed down for the category that was determined to be violated. Category I violations are the least serious and Category Ill ae the most serious. 100.05(2)(b) State’s; “The District has adopted this discipline policy as a guideline for the uniform administration of discipline, itis not, however, to be construed as the delegation of, or a limitation upon, the statutory rights of ‘the district as set forth in the Ohio Revised Code.” Tom Ford, Scioto Valley's Fiscal Officer advised that there was no written policy Firefighters to not respond in New Visions territory. New Visions geographic territory covers approximately 2/3's of Big Island Township, which are the areas south of 58 309 which is an east/west highway. irecting Scioto Valley S|Fage‘Additionally, at the end of Chief Kerr’s interview with me Butch Winslow reiterated the fact that the Scioto Valley Fire District Board never gave permission for any Scioto Valley Firefighters to not respond to the portion of Big Island Township that is in New Visions territory. ‘All four members were aware of the tension that existed between Chief Kerr and New Vision Fire Department. They all advised that this was historic since the beginnings of New Vision in the early 2000's. Each advised this was due to the fact that New Vision had very litle in the way of monetary resources and the fact that upon various requests to New Vision as well as Big Istand Township, they, being the Scioto Valley Fire District Board never received any documentation about whether or not New Vision had working apparatus that was certified or whether or not their firefighters were certified and up to date on their training. Chief Ben Meddles, Firefighter Ben Bowdre (OIC)? and Firefighter J.J. Wollett I conducted interviews with Chief Ben Meddles, Firefighter Ben Bowdre and Firefighter J.J. Wollett on May 18, 2021 at Marion Township Station #1. Bowdre was the first to arrive on scene in Marion Twp. Engine 314. Marion Twp. Tanker 321 from Station #1 was held up by a train. Bowdre took control of the fire as he was the first to arrive on scene and was OIC at Marion ‘Twp. Fire Station #2. He is the one that requested next available tanker from Central Dispatch that turned out to be Scioto Valley’s tanker. He advised that prior to arriving on scene he determined that the home was 75% involved. Additionally, OIC Bowdre did advise that although they never did run out of water for firefighting purposes that the rate of water being used was high. It should be noted that Chief Meddles along with firefighters Bowdre and Wollett have over 20 years experience as firefighters with Marion Twp. Fire and other departments. Firefighter Wollett did not arrive on scene as quickly in Marion Twp. Tanker 321, due to being stopped waiting for a train. He advised the home was engulfed when he arrived on scene. Marion Twp. Chief Ben Meddles advised that he did not proceed to the scene. However, he advised that generally the first unit on scene takes command of the fire. Additionally, he advised that he spoke to Chief Kerr a few days after the fire and Chief Kerr did not express regret for his decision nor did he advise that he would handle the situation differently." Scioto Valley Firefighters Zack Murdock and Adam Van Duzen'" Firefighter Murdock was interviewed on May 24, 2021 and Firefighter Van Duzen was interviewed on June 3, 2021. Murdock advised that he along with Van Duzen were working at the Scioto Valley Fire Station on the morning on April 4, 2021. He further advised that at approximately 5:30 A.M. they were “toned out’ to respond to a fire at 4775 Seiter Rd. in Big Island Township which is located in ® Firefighter Bowdre was the ‘Officer in Charge’ at Marlon Township Fire Station #2 on the night of the Seiter Ra, Fire 1 Chief Meddles along with the two firefighters were concerned with Chief Kerr's behavior in not providing the ‘extra tanker and squad. 4 Butch Winslow was present forthe interviews. 6] hagNew Visions territory. Murdock further advised that once he and Van Duzen received the call, he contacted Chief Kerr by phone to determine whether or not they would respond to the fire. Murdock advised Chief Kerr told them not to respond to the fire. Murdock called Central Dispatch and let them know they would not be responding. Murdock advised that he has been a firefighter and been employed by Scioto Valley Fire for approximately one and half years and at the time of his interview he was 23 years old. ‘Additionally, at the time of his interview he was engaged in a romantic relationship with the daughter of Chief Kerr. ‘Van Duzen was interviewed on June 3, 2021. At the time of his interview Van Duzen had been employed by Scioto Valley Fire for approximately one year. Additionally, Van Duzen has been in the fire service for approximately 20 years with various departments.'? He is also currently employed by Morrow County EMS. Van Duzen advised that ay 6:09 A.M. on April 4, 2021, he took the call from Central Dispatch requesting a second squad on scene. He advised that he called Chief Kerr and let him know the call came in and that Chief Kerr called Central Dispatch and advised that Scioto Valley would not be responding. When discussing the situation, he advised that after the fact if Scioto Valley would have sent the unit there would be a lack of resources on the western end of Marion County. Based on our discussion it does not sound like this was discussed at the time he spoke with Chief Kerr on the morning of April 4, 2021. In the interview with Van Duzen it was clear that he did not want to answer an questions in a way that could be used in a way to discipline Chief Kerr. He advised that during a portion of the interview when he was being evasive during the questioning, Interview with Scioto Valley Fire Chief Paul Kerr ‘The interview with Chief Kerr took place on June 15, 2021. Present were Butch Winslow and Chief Kerr’s attorney Porter Welch. Kerr advised that he has been Chief for approximately the last four years and became a fulltime chief approximately a year and a half ago. At that time Scioto Valley began to be staffed with two firefighters twenty-four hours a day seven days a week with volunteers coming in and back filling the two firefighters if they went out on a run.'? He advised he took over from the previous Chief, John Boyd. We discussed his training and qualifications. It should be noted that Kerr has all the requisite training required to be Chief along with additional training. Additionally, we discussed the circumstances surrounding his decision not to send the Scioto Valley firefighters on both occasions they were dispatched to the Seiter Rd. fire. Kerr advised that the prior Chief had a verbal policy to not respond to emergencies in New Visions territory. Kerr also advised that this policy had been discussed at Scioto Valley Board meetings. It should be noted I requested any minutes that indicated that Scioto Valley was not to respond to emergencies in New Visions territory. I did not receive any minutes that indicated this, 2 Van Duzen advised that Chief Kerr was the best Chief he has had regardless of what department. 2 The runs could be either fire runs in fire apparatus or EMS runs in a squad, TIP eeand this statement goes against the information I was provided by all four Scioto Valley Board members as well as the fiscal officer. Kerr advised, he had/has concerns that New Vision does not have equipment that has been tested and in good working order and therefore he did not want the Scioto Valley firefighters to be potentially injured due to New Visions potential or perceived deficiencies. He also advised that by allowing his firefighters to respond there would be a lack of coverage on the western portion of the County. Additionally, Kerr advised he had been monitoring the radio up and until the first call for a tanker came in and then again and then began to monitor radio traffic when the call eame in for a squad, He advised when making the decision not to send Sciot Valley on the run he was aware of the units on scene. ‘When questioned about the ‘No Vision’ comment he did not have a solid answer. Interview with New Vision Chief Larry Williams Chief Williams was interviewed on July 14, 2021. He advised that he became the New Vision Chief" in 2016 and had been with New Vision since approximately 2002. He is also employed by MedCare in Marion, fulltime. He advised that the relationship between he and Kerr has been strained over the years and that he and Kerr have not spoken in several years. He advised to the best of his knowledge the firefighters in both departments maintain a good relationship with each other.'5 Discussion/Disciplinary Charges: Discussion Fortunately, Chief Kerr's refusal to allow the firefighters under his command to not respond either with the Scioto Valley tanker and then the Scioto Valley squad did not lead to a loss of life or other mishap. However, this refusal could have had long lasting consequences on the firefighters at the scene as well as members of the public regardless of what geographic territory the general public happens to be in. Additionally, Chief Kerr's decisions created confusion and unneeded work for the dispatchers at Marion County Central Dispatch. See Exhibit 14. ‘Additionally, although Chief Kerr advised that it has been Scioto Valley’s policy not to respond to any emergencies in New Visions territory it is clear based on my interviews with the Scioto Valley Fire Bd. Members, who employ Chief Kerr as well as the tricts Fiscal Officer that there was no such policy. While I understand his concems with New Vision regarding their funding, training of firefighters and the certification of their equipment this fire was not under the command of New 2 This position is an unpaid volunteer position, '5 During my interview with Chief Williams it appears that he is intimidated by Chiet Kerr. | base this on Chief williams hesitance to speak with me, the fact he did not want his interview recorded, and the fact he appeared nervous an timid during our discussion. Bl ragVision but Marion Township. Scioto Valley does have mutual aid agreement with Marion Township. See Exhibit 12. Chief Kerr brought up the lack of fire and EMS coverage for the western portion of the County as a reason why he did not allow his firefighters to respond. However, this issue was not an issue brought up at the time of discussion with Central Dispatch. Further, it does not appear that Chief Kerr attempted to gather information from any of the units on scene at the fire. The only reason provided when he called in after the second request was that they (being Scioto Valley) does not have a mutual aid agreement with New Vision, Kerr does not address the fact in the call that at this point there were several other fire departments on scene including Marion Township Fire, which is a true full time fire department, and was in command of the scene. Disciplinary Charges With regards to the criteria established by the Departments Policy and Procedure Manual Chief Kerr's refusal to allow the Scioto Valley firefighters to respond to the Seiter Rd. Fire would fall into the following example(s) pursuant 100.05: L 100.051 (ti)(6) which state's“ urteous treatment of the public. (Discourteous treatment of the public, or failure of good behavior)" which is a Group iI Offense. Pursuant to ‘100.05(4)(h) this Group II Offense could carry an unpaid suspension of 1-3 days upon a first offense. ‘This offense arises from Chief Kerr's phone conversation with Sgt. Webb at Central Dispatch where he advises that Scioto Valley is not responding to fire in Big Island and refers to the New Vision Fire Department as “No Vision’. 2. Additionally, Lfind that Chief Kerr violated Section 101.01(1) and Section 101.01(2) of the Scioto Valley Fir wrtments Code of Conduct, Chief Kerr's refusal to allow the Scioto Valley firefighters to respond to the scene of the Seiter Rd. Fire each time they were called, runs against Section 101.01(e) which State's “Conduct all dealings with the public and other public service organizations in a manner that presents a courteous, professional, and service oriented image of the department.” and Section 101.01(g) which State's, “Avoid any behavior that could fall under the definition of misconduct.” ‘Additionally, the phone call to Central Dispatch advising them that he was not going to send Scioto Valley’s units violates these two portions of the Code of Ethics. 3. Further, 1 find that Chief Kerr committed insubordination by refusing to allow Scioto Valley to respond to the Seiter Rd. Fire on the two occasions. they were dispatched. (While referenced in the Policy and Procedure Manual there is no similar example for this (pe of behavior contained in the Manual) Chief Kerr advised when interviewed that the policy not to respond to fires in the New Vision territory had been put in place by the previous chief and had been in place for 15 to 16 years. However, each of the 4 Scioto Valley Fire Department Board members advise that this was 91never a policy and upon request the Scioto Valley Fiscal Officer was unable to provide any official documentation of this. Further, Marion Township Fire was the first on the scene and had taken command of the fire. Scioto Valley does have a mutual aid agreement with Marion Township Fire and the other fire departments that were on scene prior to receiving their call, 4, Further. 1 find that Chief K nitted nonfeasance by not allowing the firefighters under his command respond to the Seiter Rd. Fire. (While referenced in the Policy and Procedure ‘Manual there is no similar example for this bype of behavior contained in the Manual) 5. Additionally, I find that Chief Kerr commited a gross neglect of duty by not allowing the firefighters under his command to respond to the Seiter Rd. Fire. Depending on the situation this could have led to serious injury of persons or property or to the death on an individual(s).(While referenced in the Policy and Procedure Manual there is no similar example for this type of behavior contained in the Manual) Conclusion/Recommendation: Pursuant fo B.C. 733.35 this matter shall be heard before the Scioto Valley Fire District Board on the next regular meeting date, which is August 11, 2021 at 7 P.M. This hearing time can only be extended at the request of the accused. The District can call witnesses and have them testify under oath at that time in order to make their ultimate decision. Additionally, although charges 3, 4 and 5 above do not fit neatly into the categories and examples as laid out in Exhibit 1, the are very serious and fit most closely with the Category III offenses which can carry a discipline up to and including termination. This would include 100,05(4)(g)(iii)(2) which states, “Refusal without legitimate reason, to work during emergency or conditions (insubordination, neglect of duty, failure of good behavior or nonfeasance). In this case Chief Kerr did not refuse to complete a duty however he ordered the firefighters under his command to do so. As we discussed Chief Kerr claimed that he was aware of the units on scene at the Seiter Hill Fire and was concerned about the available coverage for the western portion of the County. Unfortunately, his did not discuss these issues with Central Dispatch at the time he spoke to them nor did he contact any of the members of the Scioto Valley Fire Board. Based on the above referenced charges it is my opinion that if they desire the Scioto Valley Fire District Board can remove Chief Paul Kerr from his position as the fire chief of the district. 10} P seRespectfully Submitted, ‘Stamolis (0075337) Attorney at Law Mfeere