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May trial date set in federal court in Westmoreland case

By Jeff Gallatin

BAY VILLAGE

A trial date of  May 14 in federal district court has been set on a case to determine if a veteran Bay Village firefighter knowingly spoke falsely or recklessly in alleging a city budget decision helped cause a young boy to drown in Lake Erie on Labor Day 2008.

Both Bay Village Law Director Gary Ebert and Avery Friedman, the attorney for 16-year veteran Bay Village Firefighter Ron Westmoreland said the date is fine with them and they will be ready for the trial.

A three-judge panel from the 6th District U.S. Court of Appeals unanimously ruled Dec. 6 that the case involving Westmoreland be remanded for further action to determine whether statements made by Westmoreland at a September 2008 City Council meeting were knowingly false or recklessly made. Westmoreland, a longtime diver and member of the Bay Village Fire Department dive team, alleged that the city’s elimination of the department dive team as part of a series of budget-cutting moves caused the drowning death of a 12-year-old boy swimming in Lake Erie off Huntington Beach.

Westmoreland contended that if the city dive team had still been in existence, it could have gone in the water and saved the boy. City officials, in turn, contended the dive team would not have been able to save the boy, noting that a Metroparks dive team had been on the beach ready to go in the water when the boy was found.

After the December court of appeals decision reversed the earlier district court ruling, city officials had the option of having the case go back to the district court for trial, having the entire 16-member federal appeals court hear the case or attempting to have the U.S. Supreme Court hear it.

Ebert said city officials felt sending the case to trial in district court was the best option for the city.

“We want to conclude this and get some closure on it,” Ebert said. “It was better to send it to trial to get it on the docket than attempting to get the entire federal appeals court to hear it or trying to see if the Supreme Court would even hear it. It would have been many months before we got a decision on whether it would be heard at the Supreme Court, and then if it was, ruled upon.”

Ebert said the city remains confident it will prevail. City insurance is paying for the case.

“The city believes the 6th Circuit overlooked some key facts that prove Mr. Westmoreland knew his statements were false or recklessly made,” Ebert said. “We’ve already had an independent arbitrator and the federal district court both rule that the city showed Westmoreland’s conduct at the meeting blaming city officials was inappropriate and wrong.”

After a hearing, Mayor Debbie Sutherland had suspended Westmoreland for a week, or three shifts, saying he violated disciplinary policies with his comments.  Friedman took on Westmoreland’s case shortly after the process began.

Friedman said Friday he also is ready.

“We’re excited that it’s going to trial and are confident that his rights will be upheld,” Friedman said. “It’s a good First Amendment case, and we’re talking about a veteran firefighter and diver who has extensive knowledge on the subject and knows what he was talking about. The city has had a scorched earth policy on this since the beginning of it.”

Friedman said the case has drawn attention from around the country.

“We’ve had a lot of calls of support and offers of help from around the country,” he said.

Friedman said despite the offers, he will be handling the case.

‘I’ve got 40 years’ experience on First Amendment cases; we’ll be all right,” he said.

 

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