December 19, 2014

Elyria
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Legal opinion: Rural Water board broke bylaws with secret vote

HUNTINGTON TWP. — The Rural Lorain County Water Authority board broke its own bylaws when it used a secret ballot to remove Pittsfield Township Trustee Mark McConnell during a May 15 meeting, according to a legal opinion written by the board’s lawyer.

According to the bylaws, when a vote isn’t unanimous, the board should conduct a roll call vote, attorney Dennis O’Toole wrote. The board voted 15-11 to use secret ballots.

“Because the vote determining the method of voting was not unanimously in favor of the secret or anonymous ballot, the Secretary-Treasurer should have called the roll and recorded the votes for the approval of removal,” O’Toole wrote. “Nonetheless … the board held a special meeting shortly after the board member’s removal solely to conduct the vote by roll call. Thus the initial error was corrected.”

McConnell was voted off the board by a 17-9 margin May 15, but that vote was rescinded May 22 and he was removed by a roll call vote of 13-11.

O’Toole’s opinion, which the Rural Water board on Wednesday voted 15-8 to keep secret citing attorney-client privilege, was obtained by The Chronicle-Telegram through a public records request to Huntington Township.

Trustee Mary Beth Derikito, who represents Huntington Township on the Rural Water board and voted Wednesday to make the opinion public, said she consulted with the township’s attorney, Assistant County Prosecutor Gerald Innes, before releasing the opinion. Innes told her to comply with the request because it was a public record in the township’s possession, she said.

“I did not have an option to refuse a request for a public document,” Derikito said.

Huntington Township is one of 10 townships suing Rural Water over the removal of McConnell, who was accused of making disparaging comments about a fellow board member. He has denied the allegations against him.

Derikito said she didn’t understand why the board voted to keep the opinion secret in the first place.

“I’m very much opposed to keeping things secret,” she said. “I think it just makes people suspicious of what you’re doing. I think it’s better to be open.”

Although O’Toole wrote that the secret ballot was a violation of Rural Water’s bylaws, he concluded it didn’t break Ohio law.

“(Because) the statute itself does not expressly provide for or prohibit the manner and method of voting, it cannot be said that the board violated Ohio law in conducting the vote by anonymous ballot as it did,” he wrote.

O’Toole also wrote that no appeals court in the state has ruled on the issue and noted that there are two conflicting opinions from the Ohio Attorney General’s Office. One, from 1980, argues that secret ballots are permissible, while the most recent, from 2011, states that they are improper.

O’Toole wrote that attorneys general’s opinions, like judicial decisions, aren’t supposed to make law. The 2011 opinion, he wrote, was too broad and attempted to impose a law that isn’t on the books.

“The 2011 Opinion seemingly ignores this fundamental principal of statutory construction and substitutes its own interpretation in place of clear language of the statute created and passed by the legislature of Ohio,” he wrote.

Ohio Attorney General Mike DeWine’s office referred to a frequently asked questions section on his website when asked about the weight of opinions issued by his office.

“Attorney General opinions provide valuable advice to public officials and are useful in guiding the actions of those officials,” the website said. “Although Attorney General opinions are not binding on the courts, courts usually give formal opinions careful consideration.”

Board President Stanley Wares, who voted against releasing the opinion, did not return a call seeking comment Thursday.

On Wednesday, Wares said several township trustees who sit on the board and represent townships suing Rural Water may have violated Ohio Ethics law when they voted “adverse” to the water district’s interests.

Wares made the comment immediately after the board voted 16-6 to have O’Toole’s law firm represent him and General Manager Tim Mahoney in the lawsuit. Wares, who abstained from that vote, said he and Mahoney were sued in their personal capacities.

But Innes said Thursday the two men are being sued as officials, not individuals.

“There’s absolutely nothing personal whatsoever,” Innes said.

But O’Toole said that because the lawsuit doesn’t specifically state Wares and Mahoney are being sued in their official capacities they could be held personally liable. He said he plans to ask the judge on the case to drop them from the lawsuit.

The timing of Wares’ ethics comment prompted Rochester Township Trustee Amy Szmania to say Wares prepared a trap for her and fellow critics of the majority of the board.

Innes said he couldn’t speak directly to whether it was proper for Wares to allow other public officials to commit a possible ethics violation.

“I would advise my clients that you have an obligation to try to prevent ethical violations,” Innes said.

Ohio Ethics Commission Executive Director Paul Nick said while he couldn’t comment on the Rural Water disputes, he was unaware of any state law that requires public officials to stop ethics violations.

Nick also said that in general, ethics law typically requires public officials to avoid voting on matters where they have a conflict of interest.

“You need to remove yourself and not participate in actions that impact the lawsuit,” he said, but he added that there are exceptions and he couldn’t say whether or not a violation occurred at Rural Water.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.