By Charles Prince
(Editor’s Note: The word “analysis” in the headline means this report includes commentary on factual events.)
BUCKEYE LAKE – Village Council’s attempt to take over village government started fizzling out Monday night.
Two resolutions mysteriously appeared just before the September 10, council meeting. One would strip the mayor of her authority to “discipline, demote or terminate” village employees. The other threatens first not to pay the village solicitor for services rendered and then terminate the solicitor if he doesn’t comply with council’s demands.
Neither of the resolutions had been given to the Clerk of Council by 4 p.m. on the fourth business day (Wednesday, September 5) preceding a regular Council meeting nor included in the agenda and meeting packet distributed by Council Clerk Valerie Hans on the third business day (Thursday, September 6) preceding a regular Council meeting. Both deadlines are set in the voter-approved Village Charter that governs how village government is structured and run. Copies were also not available to the public before the meeting.
Mayor Peggy A. Wells said she found a copy of Resolution 2018-05 on her desk a few minutes before the meeting began. She didn’t receive a copy of Resolution 2018-04. Hans asked for a brief recess during the council meeting to get copies of the resolutions when Council President Kitty Zwissler brought them up.
Four council members – Zwissler, Robert Masone MD, Arleta Ruton and Tom Wolfe – knew about the resolutions before the meeting. Ruton, with Zwissler’s assistance, is believed to be the author, though no one would take ownership during the very brief discussion about them. Council members Bill French, John Geiger, and Doug Poorman DVM were caught by surprise.
According to the village Charter, “Resolutions shall be used by Council where practicable, for any legislation of a temporary, informal or ceremonial nature…” The Charter also provides that ordinances shall be used “for any legislation of a general or permanent nature…” The two are actually ordinances masquerading as resolutions. Council members can approve any sort of resolution they want. For example, they could resolve that Christmas will be on December 20 in Buckeye Lake. Since they have no authority to set or alter national holidays, the resolution would be ignored. Ordinances, on the other hand, set specific rules like no overnight parking on Walnut Road. If the ordinance is adopted within the authority granted to village council by the village Charter, state law and federal law, it has the force of law within the village and can be enforced with penalties authorized by the Charter or state law.
Each resolution must have a title. 2018-04’s title reads, “A resolution requiring the village solicitor to share all commumications (sic), in writing, directly with the council president and all council members and to do so at the same time as the mayor receives the communication.” Resolutions don’t have the ability to “require” any specific action.
Four sections detail the requirements:
- “Should there be a reason to restrict certain communications sent from the solicitor, the council president will be allowed to listen to and/or read communications, letters, or e-mails from the solicitor.”
- “Should there be a conflict with the council president, two or more legislative members will contact the village solicitor.”
- “If the solicitor does not comply with this resolution’s requirements, council has the authority not to approve payment of any fees charged.”
- “Should this resolution be totally ignored by the mayor and the village solicitor, the current solicitor will be terminated and a new solicitor, acceptable to the village council shall be selected. The new village solicitor will be required to sign a contract.”
These requirements create a number of conflicts with the village Charter and state law. First, a council president does not have an automatic right to all communications with the village solicitor. For example, the police chief may need to consult with the village solicitor on a matter that meets the Confidential Law Enforcement Investigatory Records exception from the Ohio Public Records law. The communication could also involve medical records which is another exception.
Second, council does not have absolute authority not to pay for services rendered or the authority to terminate the solicitor and select a new solicitor acceptable to council. The Charter states “the Mayor shall appoint…and the Council shall confirm, by a majority vote, such person or firm as legal advisor.” It also states, “The Solicitor shall serve at the pleasure of the Mayor.” Village Council does not have the authority to set any of the specific requirements in this resolution.
The title of Resolution 2018-05 reads, “A resolution requiring the mayor of the Village of Buckeye Lake, Ohio to utilize the employee handboook (sic), the Charter, as well as the Ohio Revised Code in the discipline, demotion, or termination of an employee of the Villiage (sic) of Buckeye Lake, Ohio. The mayor must have prior authorization of the council to discipline, demote, or terminate an employee of the Village of Buckeye Lake, Ohio and declaring an emergency.” The resolution adds that Village Council “realizes the need to retain its employees and that a process needs to be in place for this reason to protect not only only the employees, but the residents of the Village of Buckeye Lake, Ohio to have fully functioning infrastructure.”
Again four sections detail the requirements:
- “As the Village of Buckeye Lake has an Employee Handbook, the Mayor will first utilize the handbook in any disciplinary action, demotion, or termination of the employee under which the employee was hired.”
- “The Mayor will apprise Council of the intent to discipline, demote, or terminate the employee and present evidence to warrant such action or actions.”
- “The Council will got into executive session to hear or go over the evidence and give its decision to the Mayor when it comes out of executive session.”
- “The Council will by two thirds (2/3) vote, decide whether or not the employee is to be disciplined, demoted, or terminated based, or charges will be dropped on the evidence presented executive session.”
The last section clearly has some major errors in sentence construction and does not make sense as written.
Article 1 of the village Charter states, “The government provided for in this Charter shall be known as the “strong mayor” plan.” Former Mayor Clay Carroll often reminded council members of his “strong mayor” authority during his term and even invited an Ohio Municipal League attorney to a council meeting to explain what “strong mayor” means and its limitations on the authority of council members. The Charter states, “The Mayor is the chief executive officer of the Village, and shall: 1) Supervise the administration of the Village’s affairs; 2) Exercise control over all departments and divisions thereof except Council…”
With the exception of a few instances over the last 14 years, council members have not challenged the “strong mayor” authority granted in the Charter. That has changed with the election of a female and fully engaged mayor.
Remarkably, council members unanimously suspended the three reading rule and then adopted both resolutions. Ruton abstained from voting on the resolution giving Council members the exclusive right to discipline, demote or terminate an employee since her husband, Dave Ruton, is the paid part-time assistant fire chief and a paid part-time EMT.
During the very brief discussion, Masone made several references to the “demotion of the fire chief” for no cause. Fire Chief Clifford Mason is NOT being demoted. Masone was making an intentionally vague reference to the village solicitor’s opinion that Dave Ruton can not hold two paid positions in the fire department at the same time and essentially manage himself as an EMT. In that same discussion, Masone acknowledged, “The Charter is supreme.” Wells attempted to explain the situation with Dave Ruton, but Masone and Zwissler wouldn’t let her speak.
Monday night, Wells announced that she had vetoed both resolutions because “they conflict with the Charter.” She asked when council members would like to discuss her action. Zwissler originally said “April 8” and then corrected herself with “October 8.” Wells then asked for time to continue her Mayor’s Report. Zwissler gave her three minutes. Wells then started reading a portion of Village Solicitor Dan Hayes’ September 24, letter to Wells and council members. After providing the required 60-days notice to terminate his firm’s contract with the Village, Hayes wrote,
“I want to address Resolutions 2018-04 and 2018-05. Both Resolutions are in direct conflict with the Charter of the Village of Buckeye Lake.
As discussed repeatedly during the Chief Hanzey and Officer Vermatten matters, the Employee Handbook violates the Charter in a number of respects. The process of disciplining Police and/or Fire employees is clearly set out in the Charter. Council did not have authority to change this process by passage of an Employee Handbook. Consequently, the discipline process set out in the Employee Handbook cannot be followed when applied to Police and Fire personnel. Further, the Charter gives the Mayor exclusive authority to deal with certain personnel matters. Resolution 2018-05 provides a different process which strips the Mayor of this exclusive authority and transfers at least some the power granted to the Mayor within the Charter to the legislative branch. The only proper way to do this would be through a Charter Amendment.
The apparent lack of appreciation for the Charter’s separation of powers is also reflected in Resolution 2018-04. Under the Charter, the Legal Advisor is a member of the executive branch. While Council must approve of the Mayor’s appointment of a Legal Advisor, once appointed, the Legal Advisor represents the elected officials within the Village in their ‘official capacities.’ Consequently, the Legal Advisor represents the Mayor as the Executive of the Village and represents each Council Member as a member of the legislative body. These are not the same roles. The first inclination I had that there was a misunderstanding in this regard was an email from Council President Zwissler on August 8 directing me to “copy council members each and every time that you give the Mayor or other Village employees an opinion.” My response to President Zwissler was, in part: “There are certainly times where it makes perfect sense for council to be included in communications between the law director and the administration – there are other times that could be detrimental. Many communities handle this issue differently. I think it would be advisable for you, the mayor, perhaps the chair of the most appropriate committee and myself to sit down and discuss the best means of communicating legal advice.” Despite this offer, and although Ms. Zwissler provided a general response to my email on August 13, no meeting was ever scheduled. The next time the issue was brought to my attention was the unanimous passage of Resolution 2018-04.
Please be advised, during our firm’s remaining time with the Village, we intend to continue to operate as the Village’s Legal Advisor pursuant to the Charter. If the Charter conflicts with Resolution 2018-04 (which will be most of the time) we will not be following the directives of the Resolution. Regardless, we expect to be compensated for work performed and will pursue any and all unpaid invoices.”
Zwissler tried to cut off Wells while she was reading the above portion of Hayes’ letter but Wells continued reading. Wells then told council members that they could uphold her veto or overturn it if six of the seven council members agreed.
Zwissler asked for a motion to table it and then re-vote. After some discussion with Council Clerk Valerie Hans about a motion to table – there being nothing to table, Ruton moved to override Wells’ veto with Wolfe seconding her motion. That prompted Hans to ask which veto Ruton’s motion was addressing.
Masone said he had a contrary legal opinion. When Wells asked whose opinion, Masone responded, “You don’t know who it is; we know who it is.” “There is a conflicting legal opinion out there that was paid by private funds,” Masone added. “You should re-contact that attorney,” Masone told Ruton. “Get it in writing instead of over the phone…It may go to a judge to decide.” He told Ruton to withdraw her motion and she eventually did.
During this discussion, council member Bill French spoke about his concerns with violating the charter.
Masone, Ruton, Wolfe and Zwissler all demonstrated their lack of familiarity with the Charter as they discussed whether they had to try to overturn Wells’ veto Monday night or had more time. “If there is a timeline it should have started five minutes ago,” Masone claimed.
Like the other issues addressed by the two disputed ordinances, the answer is very clearly stated in the Charter. On page 13, the Charter reads, “The Council may reconsider any Ordinance or Resolution, or any item thereof, disapproved or vetoed by the Mayor at any meeting of the Council held within thirty days after it is returned to the Clerk of Council as disapproved (vetoed) by the Mayor…” Since Wells vetoed both resolutions on September 21, council members could override the vetoes at their next regular meeting on October 8 or at any special meeting held by October 21.
Claims have been heard that the resolutions were first vetted by an attorney. Both attorneys might be imaginary, because it is very difficult to believe that any attorney who has actually read the Charter could refute the Village Solicitor’s conclusions. Perhaps the “attorney” is relying on a single sentence in the Charter – “Any member of Council may introduce any Ordinance or Resolution, at a regular or special meeting.” Yes, the right for a council member to make a fool of themselves is clearly stated in the Charter. Even if a ridiculous resolution or ordinance is adopted, it can and should be ignored if it conflicts with the Charter, or state or federal law.
In other business Monday night, Zoning Inspector Doug Stewart said he’s finding quite a few building projects that have been started without first obtaining a zoning permit. He suggested that council members double the normal zoning fee if the project is started without a permit.
He also said the problem with junk cars parked on residential properties is “huge.” Stewart has talked with Hebron’s police chief and zoning officer about their procedures and is now setting up a plan with Buckeye Lake Police Chief Vicki Wardlow. “We’re getting ready to start towing,” he added. Stewart believes the village should follow Hebron’s model and hire an outside towing firm to remove and store the junk vehicles. “It would take us out of the equation,” he explained.
Wolfe pointed out that the village needs to get an appeals board in place. “We’re setting up a process and there will be a timed appeal process,” Stewart replied. “I’ve tried to be nice and it’s not working.”
Police Chief Vicki Wardlow’s report brought more clarity to how dysfunctional the department was under former Police Chief Jimmy Hanzey. It ran much deeper than the just the failure of all but one officer (Steve Ritter) to meet the state’s requirement for at least 20 hours of training in 2017 and beyond Hanzey’s monthly fictional reports about what auxiliaries had worked and their hours. Wardlow reported:
- Operating System for Law Enforcement Officers Tool (report data base for reports/records) that contained all Buckeye Lake Police Department records from 2009-2014 have been deleted from all police department computers.
- The computerized records/reporting operating system that contains all Buckeye Lake Police Department records from 1994-2008 was found to be corrupt.
- Sexual assault/abuse kits (rape kits) that had not been submitted as required by state law to the Bureau of Criminal Investigation for inclusion in the state’s DNA database have now been submitted.
- Impound lot inventory has been completed. The current step is contacting the financial institutions that have the title on some vehicles. Next is locating the records of the operators/owners and determining the case status. The final step is obtaining salvage titles for any vehicles still unclaimed.
- Completed an inventory of the large amount of counterfeit money in the department’s possession that will be turned over to the U.S. Secret Service.
- Attempting to locate the owners of property found in the two property rooms. Some property isn’t even linked to a case number thus making return impossible.
- Discovered that some Ohio Department of Public Safety forms as far back as 1982 were still in use.
- Returned warrants to the Licking County Municipal Court that had been recalled but not pulled from department records.
- The department’s Mobile Data Terminals (computers in cruisers) did not comply with the requirements to access the Law Enforcement Agencies Data System (LEADS) since they were using the Windows Vista operating system. Sought MDTs that met the operating requirements and was given two by the Whitehall Division of Police. Whitehall also donated five computers for use in the nearly renovated police station.
- Applied for a grant to cover 75 percent of the cost of bullet resistant vests for officers. The village’s estimated total cost is $340. Previously, most officers did not routinely wear ballistic vests.
- Contacted area police departments about the availability of any surplus equipment available at no cost. The department was missing routine equipment like flashlights, raincoats, traffic cones etc.
The chief also reported that after extensive uncover surveillance, she and Ritter took into custody a suspect that was about to break into some storage units. He is a suspect in multiple break-ins.
Her report lead to a round of applause from the audience. Masone, who has frequently referred to Hanzey as a “hero,” did not comment.
Fire Chief Clifford Mason reported that he has a rough draft of a fire department budget for 2019 that includes the possible purchase of a new engine. He told council members he will provide a list of fire department personnel to them in October. He too received a round of applause.
Wells thanked both chiefs and Fire Safety Officer Doug Sanderson. She noted that Sanderson has been filling in some open shifts at the fire department. The retired Columbus firefighter is donating his time. Wells also thanked the City of Whitehall for its continuing support. She thanked Al Segna for some custom trim work for the police station.
Council members, without discussion, then unanimously suspended the three-reading rule and adopted four ordinances amending appropriations.
At their September 10 meeting, council members agreed to set Trick or Treat for Wednesday, October 31.