By DAVID A. MANN
Clark Circuit Court has ordered Jeffersonville’s Fire Pension Board to give former firefighter Mac Kircher a hearing, saying it erred procedurally when it forced him into retirement without properly considering his rights under the Americans with Disabilities Act.
Kircher, who filed suit against the board and the city in the spring, had a heart attack in July 2008. He was forcibly retired in May 2009, after coming back to work — with restrictions imposed by his doctor — in November 2008.
According to court documents, he was no longer allowed to perform frontline fire-suppression duties. However, the court cites a state pension code wherein a person can be retired by a board only if the Americans With Disabilities Act — and all services with the department, not just frontline-suppression duty — is considered.
His attorney, Stephen Voelker, noted he had been working as a training officer as well as mapping out fire routes in an area of the city that had recently been annexed before the retirement.
His suit claims that the pension board denied him due process when it did not give him a hearing on the retirement. Kircher was covered under Indiana’s 1937 pension fund, which paid firefighters substantially more than subsequent pension agreements.
He also was a member of the Indiana DROP Program, which Voelker said was designed to give those covered under the 1937 pension fund a financial incentive to retire early.
In its order remanding the issue back before the board, the court also found that the board erred in that did not utilize the findings of a designated medical officer. That is to say it relied on the opinion of Kircher’s personal physician, not a designated physician mandated by state statute.
“A hearing and complete hearing record would best serve compliance with statutory enactments involved,” Judge Dan Moore wrote in the order.
Voelker said that the order was, in part, a victory for Kircher. However, he said, ultimately “we want him declared that he is able to function as a fireman and he gets his job back.”
Though the order was filed Thursday, a few of the board members reached Tuesday were unaware of the development.
Board member Jimmy Carter said he thought Kircher had been treated fairly initially, noting that his own doctor’s opinion was used in the decision. Board member Bruce DeArk declined to comment, as it was the first he’d heard of it.
The court wants to make sure that Kircher gets a fair hearing regarding the retirement, said attorney Larry Wilder, who represented the city of Jeffersonville.
“I think it’s a very conscientious decision,” said Wilder. “It’s a just decision for everybody involved.”
He said board members felt that the retirement was handled correctly the first time but that “the city wants to be fair.”
Kircher had worked for the city since 1971. In addition to the heart attack, he also had a lung removed in 2002, according to court records. Asked about it, Voelker declined to speculate on whether a settlement or buyout would be acceptable.
