Tone grants city request to stay Nuesse reinstatement

SANDUSKY Kim Nuesse won't resume her duties as police chief until at least December. Erie County Commo
May 24, 2010



Kim Nuesse won't resume her duties as police chief until at least December.

Erie County Common Pleas Judge Tygh Tone granted the city's stay motion Thursday in the city's appeal of the Nuesse Civil Service case. The decision prohibits Nuesse from becoming police chief until Tone rules on the appeal.

Tone is expediting the case, however, and is expected to file a decision on the appeal by Dec. 18. Tone wrote, "No continuances will be granted" in capital letters at the end of his decision, sending a message to the lawyers that this case will be decided swiftly and without delays.

Margaret Cannon, the city's lawyer, said the city was pleased with Tone's decision to grant the stay motion.

"It would have been inappropriate that Ms. Nuesse return ... before the merits of the case had been heard," Cannon said.

K. Ron Bailey, Nuesse's lawyer, said the decision "wasn't a major surprise." But he said the ruling hurts Nuesse financially. He noted she hasn't collected a paycheck from the city in 16 months.

"They're basically waging financial warfare on her," Bailey said of the city. "They're basically trying to squeeze her out."

Last week, 20 months after city manager Matt Kline first placed Nuesse on administrative leave, the city's Civil Service Commission voted 2-1 to reinstate Nuesse as chief without back pay, immediately.

"We based our decision on the evidence," said Vincent Rhodes, one of the commissioners who voted for reinstatement. "That's all I can say."

Within hours, Kline and the city's lawyers filed an appeal of the decision, as well as the stay motion. Kline also placed Nuesse on paid administrative leave.

In their request for a stay, the city's lawyers cited Ohio civil service laws, which state, "(w)hen an appeal is taken the appellant may obtain a stay of execution."

Tone said the city's motion was "well taken" and granted the motion.

The city must now file their arguments for the appeal by Nov. 5. Bailey can respond to the city's arguments by Nov. 16. The city's lawyers can then respond to Bailey's arguments by Nov. 27, and Tone will hear oral arguments Dec. 9, before delivering his decision.

Tone said Tuesday the city must prove the civil service commission's decision to reinstate Nuesse was "arbitrary and capricious" to win their appeal.

"That's the standard," he said.

In the meantime, Bailey and Nuesse have also filed a cross-appeal asking for back pay for Nuesse.

"As previously stated, the decision to terminate her employment on June 17, 2008, was contrary to law, based on negligent investigation and retaliatory," Bailey wrote in his cross-appeal.

As with the regular appeal, Tone will rule on the cross-appeal by Dec. 18.

Asked if the city would appeal to the Sixth District Court of Appeals if Tone upheld the civil service commission's ruling to reinstate Nuesse, Cannon said she wasn't sure.

"We're just going to take this one step at a time," she said.