YOUNGSTOWN — City officials are asking a Mahoning County Common Pleas Court judge to modify and vacate an arbitrator’s decision that the city must reinstate Brian Flynn, who was fired in December 2022 as a police lieutenant after being accused of dereliction of duty.

In a Wednesday appeal, Adam Buente, a city deputy law director, wrote that the “arbitrator exceeded his authority when he failed to make a decision regarding whether or not Flynn’s conduct was serious, thus triggering the city’s ability to terminate Flynn.”

The case was assigned to Judge Anthony Donofrio, a former Youngstown deputy law director.

Arbitrator Jerry B. Sellman ruled Dec. 26 that the city should have suspended Flynn for two weeks without pay “in light of certain mitigating circumstances and the employer’s progressive disciplinary procedures.”

Sellman ordered Flynn be reinstated with no loss in seniority or benefits and with back pay though that amount should be offset by any compensation he’s received since his firing. Flynn was hired in September 2023 by the village of Poland as a police officer.

Sellman determined Flynn “did engage in conduct that constituted neglect of duty, conduct unbecoming, incompetence and violations of standards of conduct for supervisors, managers and administrators,” but the city shouldn’t have fired him.

Flynn was charged with 14 misdemeanor counts of dereliction of duty, but the charges were dismissed.

Buente wrote in the Wednesday appeal: “Despite expressly dismissing almost all of Flynn’s ‘dog ate my homework’ excuses regarding why he deleted more than 40 child sex crime tips, the arbitrator modified the city’s decision by reinstating Flynn with only a two-week suspension. Notably absent from the arbitrator’s decision was any meaningful analysis regarding just cause or, more importantly, whether or not Flynn’s miscon

duct was ‘serious.’ This court must decide whether it will affirm the reinstatement of such an officer — who also lied under oath when testifying at his own arbitration hearing about the underlying misconduct — or whether it will find that the arbitrator exceeded his authority by failing to undertake any meaningful analysis of whether Flynn’s misconduct was serious in nature under the” collective bargaining agreement.”

Flynn was fired Dec, 2, 2022, after an investigation of allegations that he failed to assign detectives to about 24 referrals from the Ohio Internet Crimes Against Children Task Force involving alleged child abuse and child pornography cases.

Flynn was the head of the Family Investigative Services Unit, now called the Special Victims Unit, and had been a Youngstown police officer since 1998.

Before his firing, Flynn was on paid administrative leave for more than 20 months.

A criminal investigation was conducted by Detective Brian Breeden of the Summit County Sheriff’s Office at the request of Jeff Limbian, then the Youngstown law director. Breeden turned over his investigation to the Youngstown Law Department, which filed the 14 misdemeanor counts in October 2022 in city municipal court.

Paul Siegferth, who was Flynn’s attorney in that case, filed a motion to dismiss contending the city prosecutor’s office failed to prove at a May 2023 hearing that no information from the police department’s internal affairs investigation was used in the criminal investigation of Flynn.

Breeden testified during a May 2023 hearing that he didn’t consider any of the internal affairs information in his investigation, but Siegferth argued the city failed to prove it didn’t use it.

Visiting Judge Mark Frost agreed and dismissed the case a month later.

A U.S. Supreme Court ruling — Garrity v. New Jersey — prohibits the use in a criminal matter of any “compelled statement” taken from a public employee during an internal affairs investigation.

The 7th District Court of Appeals in March 2024 ruled against the city, which appealed Frost’s decision, saying the judge’s ruling “in this case was the proper remedy.”

Sellman wrote in his decision that there is no dispute that Flynn “intentionally failed to act upon or follow-through on” the referrals from the Ohio Internet Crimes Against Children Task Force.

He wrote: “The arbitrator does not find from the evidence that (Flynn) purposefully flouted his duties to enforce the law. He clearly made incorrect assumptions and his reliance on those assumptions resulted in his violation of” city police rules.

In one case, Sellman wrote, a juvenile was sexually abused for more than 18 months before a county sheriff intervened and the perpetrator was arrested. Another case, Sellman wrote, involved six victims with the suspect sentenced to 30 years in prison.

Sellman wrote considering Flynn’s 26-year career and “his unfounded, yet mistaken, belief that others were handling” the cybertips as well as the lack of oversight from the state agency, he should be suspended without pay for two weeks, which was the initial decision of the city before filing criminal charges.

Sellman wrote the city’s contract with the police ranking officers union calls for progressive discipline. The city contends that policy doesn’t apply if the conduct is serious.

Buente wrote in Wednesday’s appeal: “Despite finding that Flynn ‘purposefully deleted’ these crime tips, the arbitrator conclusively determined that the ‘penalty of termination is not progressive in nature’ without making an express determination about whether the misconduct was serious. Such an overstep by the arbitrator evidences that the arbitrator exceeded his authority by not centering his decision on the most critical language of the collective bargaining agreement provisions regarding the applicability of progressive discipline.”

If there is a serious offense, as Buente wrote occurred with Flynn, progressive discipline doesn’t apply.

He wrote: “Imagine an officer has a perfect disciplinary history over a 26-year career, but one day, the officer got fed up with the chief of police and physically assaulted him in front of other (officers). Such misconduct would be ‘serious’ misconduct, progressive discipline would not apply and the city would have the right to terminate that officer’s employment immediately.”