July 22, 2014

Elyria
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Sorting out ahead in Elyria counsel issue

Holly Brinda

Holly Brinda

Scott Serazin

Scott Serazin

ELYRIA — Two laws and two lawyers with different opinions on whether a lawyer and his law firm can both have ties to the city — as is the case with Mayor Holly Brinda’s administrative legal counsel Ken Stumphauzer and his private practice — have set the stage for a discussion that will not be easily sorted.

When bringing the matter to Elyria City Council, Law Director Scott Serazin said Section 21.04 of the city’s charter forbids the relationship because of possible personal financial gain by Stumphauzer beyond his $42,000 city salary.

He has “grave concerns over the legality of the arrangement,” he said.

However, Stumphauzer said an Ohio law makes a clear exception for lawyers and legal firms, paving the way for the kind of working relationship he now has with the city.

“This section clearly provides an exception,” he said.

City Council hopes to possibly bring in an outsider to give some direction on the situation.

In the meantime, Brinda said contract negotiations have stalled, legal matters are in limbo and she has been put in a position of publicly defending a decision she was advised was perfectly legal.

“I hire people on their merit and pick people who I think will make the best partners with the city based on an intensive interview process,” she said. “But, more importantly, we follow the law, and I was always told there is no conflict because a statute in the law clearly addresses lawyers and legal representation.”

Mayor’s side

In a detailed interview Thursday, Brinda explained how Ken Stumphauzer became her administrative legal counsel and how his former firm Stumphauzer O’Toole and now current firm Walter Haverfield came to do legal work on behalf of the city.

Brinda said her thoughts on having her own attorney have changed over the years. She came into office thinking she could eliminate the position altogether, but quickly learned it would leave her unrepresented. Serazin represents the city, not the mayor, as the city charter succinctly spells out.

“Still, I really thought I could do it cheaper than what we were doing it for in the past,” she said. “I put (former administrative legal counsel) Tom Smith on an hourly retainer and tried to give much of the work to the Law Department. But quickly I realized that just wasn’t a good arrangement.”

That put her on the hunt for an attorney.

Brinda said her first choice was attorney Dennis O’Toole. She has been familiar with him for years and the two have a long history.

Brinda said O’Toole declined the offer and recommended Stumphauzer, whom Brinda said she did not know well.

O’Toole gave $1,000 to her in 2011 for her mayoral campaign, and there were similar-sized contributions made by others in his firm, including Michael Loughman, Russell McLaughlin and Heidi McGlamery. Stumphauzer, according to Brinda’s preprimary campaign report, was not a contributor.

“I met with him and liked what he had to say,” Brinda said. “But it wasn’t a slam dunk. I still had to persuade him to take the job. I don’t regret that decision. He has done nothing but an exemplarily job for me as my administrative legal counsel.”

During that same time, Brinda said she went to Clemans and Nelson, the professional firm the city has used for years to handle contact negotiations, and explained her goal for future negotiations: make headway on eliminating or significantly scaling back longevity pay among city employees. It was not an approach favored by the company, so Brinda said she set out to find a law firm willing to tackle the long-rooted compensation program.

“This was nothing against Clemans and Nelson because they have done great work for us in the past, but we were looking for a change agent,” Brinda said.

Stumphauzer O’Toole was not Brinda’s first and only choice.

According to entries from her appointment book which she shared, Brinda met with attorneys from Wickens, Herzer, Panza, Cook and Batista on Oct. 12, 2012, as well as Squire Sanders several weeks later.

The first interview revealed a conflict as Wickens, Herzer, Panza, Cook and Batista at that time represented LifeCare Ambulance Inc., and Brinda said she knew she needed to negotiate a new vendor contract with the private company.

Squire Sanders did not want to work under the city’s proposed billing rate of $175 an hour.

Brinda met with Stumphauzer O’Toole in January 2013. The two sides signed a letter of engagement Feb. 26, 2013. It detailed a service agreement for the time period of April 1, 2013, to March 31, 2014, and was not to exceed $100,000 during that time.

According to figures from the city finance director’s office, the law firm has made a total of $72,871.50 with most, $68,821, being paid during the time of the agreement.

‘My error’

However, signing the agreement and not letting City Council know she did so, was a mistake that Brinda acknowledges she made.

“There was no secret. No one was trying to hide this relationship,” she said. “We did all the due diligence to find the right law firm, but forgot to make the referral to City Council. That was my error and I own it.”

During a meeting held nearly a week ago, tempers flared as a discussion on whether to contract with Stumphauzer’s new firm, Walter Haverfield, and Council members learned the private practice relationship with Stumphauzer preceded the newest agreement.

“It was disturbing to learn so much work was going on without a contract that we knew of,” said Councilman Mark Craig, I-4th Ward.

In an effort not to let history repeat itself, Brinda said she brought the Walter Haverfield contract to Council as soon as possible. She said it was after the firm started to work for the city, but that was only because the agreement with Stumphauzer O’Toole was prematurely terminated due to dissolution of the law firm, and the three main attorneys working for the city — Stumphauzer, Susan Anderson and Margaret O’Bryon — shifted to Walter Haverfield.

Around the same time, Serazin raised his concerns about the relationship and weeks of talks have ensued.

“This whole debate over the law has taken three months,” Brinda said. “The legal services of the city are basically on hold while this is sorted out.”

Brinda said she doesn’t fault Serazin for doing his job by voicing his concerns.

“I admire people who take their jobs seriously,” she said. “I want to work with colleagues that take city matters seriously and care about the city.”

Brinda stopped short of saying she is willing to sever ties with Walter Haverfield to quash any perceptions of a conflict of interest. The firm has done exemplary work that speaks for itself, she said.

Avoiding conflicts

Still, potential conflicts of interest are a gray area some seek to avoid.

Lorain Law Director Pat Riley, also a partner of Riley, Resar and Associates, before being elected to his post had done considerable work negotiating labor contracts for employee groups in the county. Yet even with extensive prior experience, Lorain Mayor Chase Ritenauer said he uses an outside firm to handle contract negotiation. He also doesn’t throw work to Riley’s private practice partner, Kenneth Resar.

The configuration of Lorain’s Law Department is not the same as Elyria’s. Ritenauer doesn’t have an attorney, and Riley provides counsel to many of the city’s elected officials, boards and commission. When conflicts arise — such as if Ritenauer wants to go up against the Civil Service Commission, which Riley represents — Ritenauer picks an attorney to hire for his representation.

“Pat’s our law director, so I would not for that very reason,” Ritenauer said. “We don’t want the conflict.”

Contact Lisa Roberson at 329-7121 or lroberson@chroniclet.com. Follow her on Twitter @LisaRobersonCT.

  • Sis Delish

    The City Charter… must be a clause in there which commands a Democrat Mayor to only consider law firms who vote Democrat or contribute to the campaign of a Democrat running for office in the City of Elyria? Counter-Point: What Republican would want to defend the actions of “The Clique”?

    SECTION 21.04 PERSONAL FINANCIAL INTEREST.

    An officer or employee of the City who has a substantial financial interest, whether direct or indirect, or by reason of ownership of stock in any corporation, in any contract with the City, or in the sale of any land, material, supplies or services to the City or to a contractor supplying the City, shall make such interest known, either in a writing filed with the Clerk of Council or orally at a meeting of Council, and shall refrain from voting upon or otherwise participating in his capacity as a City officer or employee in the making of such sale or in the making or performance of such contract. Any officer or employee of the City who willfully conceals such a substantial financial interest or willfully violates the requirements of this section shall be guilty of malfeasance in his office or position and shall forfeit his office or position upon the conviction thereof by an affirmative vote of two-thirds of the members of the Council. The accused officer or employee shall be notified in writing of the charge against him and given an opportunity to be heard in person or by legal counsel. Such hearing shall be open to the public. The Council and the accused officer or employee shall have the power to subpoena witnesses and the production of evidence. The Clerk of Council shall have the power to issue subpoenas for witnesses and the production of evidence on behalf of the Council or the accused officer or employee and shall have the power to administer oaths. Upon the required vote to remove such officer or employee he shall forfeit his office or position of employment and such office or position shall become vacant and shall be filled in the manner provided by this Charter. Any person removed from office or employment under this section shall not be eligible to become a candidate for or hold any office in or employment with the City for a period of five years after his removal. A member of Council accused of malfeasance under this section shall not vote upon the question of his removal, and the vote required for removal of such member shall be two-thirds of the remaining members of the Council.

    In the event an administrative officer or employee of the City is prevented from participating in any sale or contract by this section and this Charter or the ordinances of the City require action by the person holding his position to effect such sale or contract, or the performance thereof, the Council, by motion, may designate another officer or employee of the City to act in his place in order to effect such sale or contract, or the performance thereof.

    Violation of this section with the knowledge express or implied of the person or corporation contracting with or making a sale to the City shall render the contract or sale voidable by the Council.

    It is intended by the Charter Commission and the electors of the City, by their approval of this Charter, that this Charter shall be the only limitation upon financial interests of officers and employees of the City in contracts with and expenditures by the City, and that the general laws of the State of Ohio, whether pertaining to removal from and forfeiture of office, criminal offenses, or other related matters, shall not be applicable to officers and employees of the City.