GREEN City of Green officials, an attorney from the Cleveland-based Walter Haverfield law firm and several members of City Council have said on numerous occasions throughout the past year that they never explored the possibility of overturning Issue 14, a contentious charter amendment narrowly passed by voters in November 2018.
Information obtained through public records request and numerous interviews over the past seven months show that doesn't appear to be the case and in consequence the law firm hired by the city to help implement the charter amendment used taxpayer money to examine legalities surrounding the charter amendment.
On Sept. 26, the Suburbanite obtained a copy of the complete, unredacted, seven-section legal opinion report compiled by Walter Haverfield. Within the final three sections, Walter Haverfield's research found:
• Section V: Ohio Courts may examine the constitutionality of a charter amendment;
• Section VI: Unlawful aspects of a charter amendment can be challenged through a declamatory judgment action;
• Section VII: City Council cannot take unilateral action to repeal or otherwise invalidate the charter amendment; however, the Ohio Constitution’s procedure for amending charters remains a viable avenue for amending the city charter.
Issue 14, which was spearheaded through a grassroots campaign by the Political Action Committe Citizens for Responsible Green Government, would change the law director position from an appointed to an elected official. With more than 11,000 votes casted, the amendment was just 27 votes ahead on election night, triggering a four-plus hour recount in December 2018 where it officially passed by 24 votes.
In December 2018, weeks after the Summit County Board of Elections certified the amendment, Mayor Gerard Neugebauer entered the city into a $10,000 contract with Walter Haverfield to provide legal services in regard to Issue 14. Since the contract was $10,000 or less, City Council approval was not needed.
Then during the city’s Feb. 26 regular meeting, City Council approved a contract with Walter Haverfield that included the initial $10,000 and capped total payments at $30,000. Language was added that limited the scope of Walter Haverfield’s work to providing legal advice on “the implementation of Issue 14 … and not to assist in any effort to overturn Issue 14.”
The copy of the Walter Haverfield report the Suburbanite obtained, which was sent from Walter Haverfield attorney William Hanna to Neugebauer, was dated Feb. 25, the day before council approved its contract.
In the city’s original contract with Walter Haverfield dated Dec. 29, 2018, the scope of the work to be performed is defined as reviewing the city’s charter, the charter amendment and potential implementing legislation; performing legal research; and providing comments and legal analysis concerning the amendment and how it relates to and integrates in the charter.
The contract goes on to state any work beyond the initial scope would be performed if authorized by the city. It remains unclear whether the city asked for additional work to be completed through another contract or if it was all done under one contract.
The Suburbanite reached out to Chris via email on Oct. 4 with questions about how sections V, VI and VII fit into the scope of the contract with Walter Haverfield and also asked why City Council approved the Feb. 26 contract with Haverfield after its report had been finished. He did not answer either question in a response email.
During a May 14 City Council meeting, Hanna spoke before City Council and provided a two and a half-page memorandum summary of the legal opinion prepared by the law firm.
At that meeting, Councilman Matthew Shaughnessy asked Hanna if Walter Haverfield was charged with looking at ways to overturn Issue 14.
Hanna said “no.”
“I appreciate how some would want to view it to fit a specific political narrative, but the idea that the city was using Walter Haverfield to come up with a plan to defeat issue 14 is a fallacy,” Chris said. “Assuming you have a copy of the report, you should read it with a neutral view and not skewed to meet a false narrative. Your analysis is simply incorrect, and the actions of the city since that time are living proof.”
Chris said Issue 14 is being implemented and was fixed to a workable form by the Charter Review Commission.
“You have been told on multiple occasions by the city and Walter Haverfield that the false narrative was not part of their given task yet you continue to suggest otherwise,” Chris said. “It appears clear that you are not interested in the truth.”
Councilman’s questions never answered
In June, The Suburbanite filed a public records request for communication between Interim Law Director William Chris, Neugebauer, all members of City Council and all members of the City Charter Review Commission and Walter Haverfield. That resulted in 2,026 pages of documents, many of which were blacked out, at an original cost of $200. The city of Green initially refused to let The Suburbanite review the documents until payment was made in full.
When told that the city was in violation Ohio Sunshine Laws, it allowed The Suburbanite to view the records before payment was made for pertinent documents.
Within those records is a Feb. 26 email – which was the same day as council passed its contract with Walter Haverfield – from Councilman Stephen Dyer to Chris, the city Law Department’s Administrative Coordinator Lisa Sexton and all members of City Council in which Section V of the Walter Haverfield report is referenced. Dyer questions who, if anyone, asked Walter Haverfield to determine whether Ohio courts could examine the constitutionality of charter amendments, or if the firm did so on its own.
“Section V, VI and VII seem to go bit far afield from trying to see how to integrate the charter amendment in the charter,” the email reads. “They seem to be answering specific questions raised by someone about different legal strategies to undo the charter amendment.”
Dyer goes on to state in the email that section VII in the report appears to be determining whether City Council could undo the charter amendment.
Dyer said he still has not received an answer to those questions he asked more than seven months ago.
“My concern remains that taxpayer money was spent to examine ways to overturn a charter amendment that voters had approved just weeks before — an amendment the mayor helped raise money to oppose and the law director donated money to oppose,” Dyer said.
In an Oct. 8 email, Chris said, "Mr. Dyer’s email was merely his speculation and there was no reply."
Chris, who does not live in the city and once Issue 14 passed became ineligible to run for the full-time law director position, donated $200 to the anti-Issue 14 campaign prior to last year’s election. He told The Suburbanite he didn’t believe that to be a conflict of interest.
“I have grown increasingly concerned that city officials who openly opposed the charter amendment have gone to great lengths to hide from the public whether the law firm was asked to examine ways to overturn the amendment,” Dyer said.
The Feb. 26 email, which Dyer sent to seven other people also only showed up once in the public records request. What appeared to be the other copies of the email were blacked out with Chris claiming privileged information.
“When a council member requests an opinion from their attorney, that request is privileged, and should be blacked out,” Chris said. “The privilege grants client’s ability to be fully candid with legal counsel.”
More records requests
In March, the city refused the Suburbanite’s initial public records request for the release of the Walter Heaverfield report. It again refused to release the report to the public in April when asked during a meeting by a resident, claiming attorney/client privilege, with Chris saying it is in the best interest of the city “now and in the future” not to release the report.
On Sept. 2, Chris responded to an additional public records request for any and all communication from the mayor, law director and city council members in regard to overturning Issue 14.
Chris said in response to the request, “please be advised that we have reviewed your public records request of Aug. 27 and made an inquiry within the city. While the records requested are privileged communications, no such documents exist within the city.”
The Suburbanite contends that Dyer’s email would fall under the scope of that request. The Suburbanite also inquired with several members of City Council and the council clerk about the request and at least two council members said they were never notified about it, which also would be in violation of Ohio Sunshine Laws.
In a follow-up interview, Dyer said he still has concerns about the report.
Shaughnessy, who is running against Neugebauer for mayor, also said he shares the same concerns as Dyer. Shaughnessy added that he didn’t see anything in Dyer’s email that was not accurate.
“Upon receiving the opinion, I became immediately concerned about how the opinion differed from the scope of the firm’s work,” Dyer said. “I expressed that concern in an email and asked for clarification about who if anyone at the city authorized the examination into ways the initiative could be overturned in several different sections. I was especially concerned about a section that examined whether City Council could unilaterally undo the charter amendment.”