BUCKEYE LAKE – Buckeye Lake Village Council members must accept that the village charter doesn’t grant them as much power as some believe it does, said Athens based attorney Garry Hunter during a special council meeting Oct. 25.
“There have been several comments made that questioned if we were following proper procedures when it comes to our charter, council rules and even Roberts rules of order,” said Buckeye Lake Mayor Clay Carroll, explaining why council held the special meeting. “Since the Ohio Municipal League is one of the most recognized authorities on these matters, that is who we turned to. They suggested that Garry would be the best to address this as he has done for other communities.”
Hunter is past president of the Athens County Bar Association, the Ohio Municipal League, the Ohio Municipal Attorneys Association, and the International Municipal Lawyers Association. He currently represents the Ohio University Credit Union, the City of Nelsonville, The Southeastern Ohio Regional Jail, the Athens-Hocking Solid Waste District, the Athens- Meigs Educational Service Center, and the Trimble Local School District, in addition to over 3,700 private individual clients.
“Compromise is the groundwork for good government,” Hunter said. He said the Buckeye Lake Village Charter was created in 2003, just as Buckeye Lake Village had 3,000 residents and was beginning the long transformation from a village to a city, which hasn’t happened yet. “Village law is really intended for small villages, and by small, I mean three to four hundred people,” Hunter said. As municipalities grow to 5,000 people – which qualify as a city according to Ohio law-the government must begin separation of power and can’t rely on the village council to govern every aspect of the municipality. He said the charter is a good bridge between village and city government operation. “The Buckeye Lake Charter is a good step toward operating like a city,” Hunter said. He said the Buckeye Lake Charter favors a “strong mayor” form of government.
Hunter said he it didn’t shock him to learn how often Buckeye Lake passes ordinances by emergency, meaning they go into effect immediately without three public readings or a 30-day waiting period following approval where the public could question the ordinance. He said fiscal matters and ordinances go into effect immediately on their own; there’s no need to pass them by emergency. Appropriations are not subject to a referendum.
Generally speaking, Hunter said the village should avoid passing ordinances by emergency clause because, “The public’s right to review your action goes right out the window when you put the emergency clause on it.” And, the village should state very clearly why it passes an ordinance by emergency otherwise its passage could be challenged legally.
“Is suspending the rules appropriate for passing legislation,” asked council clerk Valerie Hans. Suspending the rules gets around reading the legislation publicly three times before voting on it.
“Yes,” Hunter said. He said it takes a three-fourths majority of council members to suspend the rules. “But,” Hunter said, “it’s three-fourths of the number of people on council, not three-fourths of the council members present at the meeting.” Again, he said council must clearly explain why the three-reading rule was suspended.
Hunter said he was surprised to learn that Buckeye Lake Village’s planning, zoning, and appeals commissions are all made up of the same members. He said all these commissions should be completely separate with individual members for each. “Legally, it’s much easier to hold up decisions in court if they are separate,” Hunter said. He said planning and zonings functions are two completely different things. Hunter said a planning commission creates zoning and a zoning commission is an administrative function that hears requests for zoning variances. “The same people are deciding zoning and offering variances,” he said. “That doesn’t make sense.”
Planning and zoning commission chair Karen Cookston said the commissions were combined because there weren’t enough people to create individual commissions. “We didn’t have enough money for office staff. That’s why we did it,” she said.
Hunter said he also didn’t think it was appropriate for the appeals board to have the same members as the zoning commission.
“It’s like going back into the same court,” said council president Kitty Zwissler. “How can you expect a different decision? I think these leaves us legally very vulnerable.”
“I couldn’t agree more,” Hunter said, adding that the mayor usually appoints members of commissions. He was also concerned the existing commission has seven members when most have five, and council appoints the majority of its members. “But, it’s a strong mayor form of government,” Hunter said. “So, you probably shouldn’t be doing that. And, what kills me is only four members have to be residents of the village. Three people who aren’t even residents are making decisions on what can be done in your village? I don’t think that would stand up under scrutiny.”
Cookston said the commission has seven members because it was difficult to achieve a quorum for most meetings with only five members. The number of members was increased so a quorum could be maintained. She said non-residents were allowed on the commission because, “We couldn’t get enough people in the village that would take the job.” But, she was clear the “non-residents” either owned property within the village or operated a business.
Hunter said he understood, but recommended using alternate members on a five-member board; the alternates could substitute for members who couldn’t make it to the meeting. “If the number of members is increased, then the quorum has to be larger,” he said. Hunter said non-residents should not serve on the commission, period, even of they do own property of have a local business. “I only point out what I see,” he said. Hunter said someone who was really upset with the village could take advantage of these issues in a court of law.
Council member Arletta Ruton said she questioned council’s current review of mayor’s court magistrate candidates. She believes the mayor should make the appointment.
Hunter said that problem is based on the charter’s strong mayor focus. He said the village’s old rules ahead of the charter favored council. “The old mindset before 2003 was that council does all these things,” Hunter said. “Then the charter comes along.” He said an effort was made to move toward a city concept of government. “It’s really written as a strong mayor form of government.”
Ruton said she’s seen an “overstepping of bounds” on council’s behalf during the last 18 months or so.
Hunter said while reviewing Buckeye Lake’s charter he noticed it places all business before committees ahead of being presented to council.
Hans said council members were not having an opportunity to review proposed policies ahead of council meetings.
“It blocks council members’ right to introduce an ordinance,” Hunter said. “Individual members should have the right to introduce an ordinance.” He said according to the charter, council is responsible for running yearly personnel evaluations. “Why?” Hunter said. “Do you even do yearly evaluation because you’d be the exception if you do.”
“Do you think that language should be changed?” Ruton asked.
“It should come out,” Hunter said. He said council is responsible for pay raises but it’s better if the mayor deals with village employee policies. The charter doesn’t say council can’t address employee policies, “But I don’t know why council would want the grief from it.”
“It’s called control,” Ruton said. “Council members don’t understand or don’t want to understand the division between what the council and the mayor do. They want to overstep their bounds and be in control.”
Hunter said the personnel committee is “one of the worst ones.” He said the mayor should have the personnel committee’s duties.
Hunter also had issues with the charter’s description of the finance committee. “You don’t really oversee those budgets,” he said. “What you really do is adopt the budget and make amendments to the budget.”
Hans said there’s been some disagreement between council and administration regarding replacing the roof on the village hall or repairing immediate damage. “Who’s the person who decides which direction they are going to go?” she asked.
“That’s a group decision,” Hunter said. “The mayor controls his recommendation and the council controls the bidding and the money.” He said council has a big role in that type of decision and everyone must learn to cooperate.
Ruton reiterated her belief that some council members don’t understand the mayor’s role according to the charter. “They really, truly don’t want to understand because they’re not in control, that council should control everything,” she said. “Not according to our charter.”
“That’s not uncommon,” Hunter said. “It can spin out of control and set people against each other.”
“For the last year and a half, the council has not followed the charter or the council rules,” Ruton said. “If that continues to happen, what are the legal ramifications?”
“You get sued,” Hunter said. It can get “ugly, and your liability insurance will not cover that situation.”
Hunter said in his opinion, “You’re not going back to the small village situation where council controls everything.” He said the village is moving toward a city-type government. “Rightly so, your charter is putting you on that course. You need to accept that and realize that city government works like the way the state functions, or the federal government functions, and that is the separation of powers… the separation of powers.”
Hunter said council is a legislative function and the mayor is administration. “You have to come to that realization. If you don’t you’re going to get burned at some point,” he said.
“That’s going to happen sooner or later if the charter isn’t followed,” Ruton said.
“Not following the charter is a problem, a liability situation,” Hunter said.