Former Gardner Fire Department to appeal decision

Judge sided with fire district, awarded it all department assets

GARDNER – The former Gardner Fire Department has decided to appeal Judge Robert Marsaglia's ruling last week in favor of the Gardner Fire Protection District.

"It's a simple appeal — can a private company spend its own money the way it wants? That's the simple issue," said the department's attorney, Tim Rathbun of Rathbun, Cservenyak & Kozol, during a late Monday afternoon phone call.

If the department wins the appeal, it could get $500,000 from the district, he said.

Last week Judge Marsaglia ruled in favor of the district  — over the former fire department — that the district rightfully terminated its contract with the department.

"(The court ruled) we appropriately terminated the contract and, therefore, all department assets belong to the district," said district attorney Rick Porter of Hinshaw & Culbertson Thursday. "In light of that, we're going to take possession of the building."

On Friday the district was moving into the firehouse, said Chief Terry Jensen that day. Previously the district had been operating out the Gardner Village Hall and storing equipment in village buildings and elsewhere. Its larger trucks had to be kept outside.

The whole battle between the district and department started when former department chief Randy Wilkey refused to give the district board original receipts from which to pay the department's bills, according to previous statements by district representatives and Wilkey.

Eventually, when Wilkey refused to give originals, the district refused to pay the bills. This led to the feud going to court and the district no longer recognizing Wilkey as chief.

The district terminated its contract for services with the department due to it misappropriating funds by using its money for legal fees to argue an election for district trustees. The department said then it could not misappropriate its own funds. The court ruled in support of the termination previously and upheld that ruling last week.

The court had previously ordered the department hand over all assets, except for real estate, which had to be dealt with separately. The ruling last week upheld the previous ruling and gave the district the rights to the real estate - the firehouse.

On Monday, Rathbun said once the district gave the department funding, it was the department's decision on how to spend it and, therefore, it could not misappropriate its own money. In addition, the department said it also made its own money through offering private ambulance services and providing classes.

The district has argued the department ran on public money paid to the district in taxes and spending it on political battles was not allowed. And that the department was only allowed to provide classes and ambulance services through the authority of the district through their contract.

"I think Judge Marsaglia was just tired of the dispute between the district and the department," said Rathbun. "I just regret the decision came out the way it did."

An after-hours call Monday evening to the district's attorney was not returned by the Morris Daily Herald's Tuesday morning deadline.