December 22, 2014

Elyria
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Contract lawsuit could possibly mean delay for new Lorain High project

LORAIN — Don’t move the goalposts after the game kicks off.

That was the essence of county Common Pleas Judge Mark Betleski’s decision Thursday on a lawsuit over construction of the new Lorain High School. Betleski said the state couldn’t reject a Project Labor Agreement for construction of the school after approving it.

“No party, even the state, can approve a contract, and then subsequently negate its promise by declaring the contract unlawful,” Betleski wrote in a ruling released Thursday in Elyria.

The agreement, approved by the Board of Education in December 2010 and the Ohio Schools Facilities Commission in January 2011, called for “good faith efforts” to ensure 50 percent of all project workers are from Lorain or Lorain County. The agreement also called for workers to be unionized and receive prevailing wages.

In February 2011, Gov. John Kasich signed an executive order forbidding agreements for projects involving state taxpayer money. State taxpayers are paying for 81 percent of the $73 million project. In April 2011, former Superintendent Cheryl Atkinson was sent a letter by the Facilities Commission. Despite the agreement being approved before the executive order, the letter said it was being dropped because construction bids hadn’t gone out.

School board attorney Anthony Giardini didn’t return a call Thursday, but previously said he didn’t know why Atkinson, who left in September 2011, never informed him or board members about the rejection. Giardini notified the North Central Ohio Building and Construction Council nearly two years after Atkinson received the letter. The council sued in July seeking an injunction on construction.

Betleski ruled that the project could continue with the agreement because the contract with the Facilities Commission is binding. He wrote the resolution the Facilities Commission was using to reject the agreement violates federal and state law.

Betleski wrote that workers would lose money without the agreement and that the agreements have traditionally led to projects finishing on time and under budget. He said Lorain and the county would receive more tax revenue due to the local hiring requirements.

“The court finds that the grant of this injunction would better benefit the public (than) would its denial,” Betleski wrote.

Rick Savors, a facilities commission spokesman, said he hadn’t seen Betleski’s ruling and doesn’t know if the commission will appeal. Superintendent Tom Tucker said the district had planned to seek construction bids in the next couple of weeks. Tucker said it was too early to say whether the project, scheduled to be completed at 2600 Ashland Ave. by August 2016, would be delayed due to the suit.

Students are temporarily being housed at the former Southview High School and Southview Middle School.

“I just want to see that high school built so we can get our students where they need to be,” Tucker said.

Board member Jim Smith said he also didn’t want to see students penalized. Smith said he is hopeful a compromise can be reached with the state in which the school district would pay for all cost overruns if the project goes over budget due to the agreement.

Smith said Kasich’s executive order was political. It came shortly after Kasich took office and while he was beginning an ultimately unsuccessful attempt to strip public unions of most of their bargaining rights.

Smith said Kasich is running for re-election and while he probably won’t get many votes in heavily Democratic Lorain County, fighting the agreement might cost him some of the few votes he may get.

“He may just say, ‘Hey guys, just swallow it and bid the damn thing out and if it comes in too high, we’ll figure something out,’” Smith said. “Then we can move forward and the kids will get their high school in 2016.”

Contact Evan Goodenow at 329-7129 or egoodenow@chroniclet.com.