Huber Concerning Walton

PICKREL, SCHAEFFER AND EBELING A LEGAL PROFESSIONAL ASSOCIATION 2700 KETTERING TOWER 40 NORTH MAIN STREET

DAYTON, OHIO 45423-2700 937/223-1130 FACSIMILE 937/223-0339 www.pselaw.com

MEMORANDUM To:

Mayor Ron Fisher Council Members: Judy Blankenship Mark Campbell James C. Ellis Roger Hensley Karen Kaleps Jan Vargo Roshawn Winburn

From:

Alan B. Schaeffer

Date:

May 1, 2009

Re:

Brian Walton

Dear Mayor Fisher & Members of Council: At Monday’s night’s Council meeting Councilman Walton advised the remaining members of Council that on or about June 1st he will be taking a job that will result in his being sent to either Iraq or Afghanistan for 12 months. He requested that Council support his desire to keep his position open for the one year that he is overseas. Councilman Walton indicated he wanted to keep his seat. He did not want to resign. He wanted Council’s blessing. I was asked by all of Council to look into this matter to see if there is some guidance to assist Council and Brian in making a decision. I have thoroughly researched local law, state law and the Huber Heights Charter. It should come as no surprise that there is no guidance in the Huber Heights Charter directly on point. Similarly, neither state law nor federal law deal directly with the subject. In other words there is no law that requires a position to remain open at the choice of a public official, nor is there any statutory law that gives guidance to local or state governments concerning the same.

20359364.doc

The few cases that are around simply touch upon the issue, but there are no cases we have found that specifically state a councilmember has an absolute legal right to hold his/her position open while on an extended absence or any requirement that a council must adhere to such a request. The Huber Heights City Charter does give us some indirect guidance. •

Under Section 13.8 if a councilmember is absent for three consecutive unexcused absences Council may remove that councilmember. The obvious inference to be made here is that the Charter expects councilmembers to participate. I would point out that recent experience with our former mayor would suggest that Council has been sensitive to the reasons why a councilmember might be absent for an extended period of time, and would want to work with that councilmember. At the same time, the former mayor was also faced with the possibility that Council would not grant him additional excused absences. The timeframe was much less than one year. Council was never faced with the need to not excuse absences of the former mayor as he resigned for health reasons. Those health reasons were well known by Council. The hope was that the health reasons would stabilize or improve. They did not, and in fact, his health continued to deteriorate resulting in his ultimate resignation from Council, because in his own estimation he could not serve, and it would be unfair to ask that he be allowed to finish out his term which had a little less than a year to go. The Charter sets forth the form of government that the residents of the City chose back in the early 1980’s when Wayne Township became Huber Heights. The form of government is a city council/city manager form of government, with eight members of Council and a Mayor. Under this form of government the mayor, although the titular head of the City Council only votes when there is a tie.

With one member of Council absent for a 12 month period of time the whole structure of the form of government provided for by the City Charter is changed, not by vote of the people, but simply by the absence of a councilperson. Council really becomes a group of seven and the Mayor’s vote counts for nothing, because he only votes to break a tie. Again, however, with only seven councilmembers in position to vote, in theory, there is never a tie. This situation allows a group of four, then, to dominate all action at their will. In addition under the City Charter action requires a majority of all councilmembers. Under the Charter a majority of council is five. In some cases a super majority of six is required. In both situations a minority of at least four would be required to block any action. With one councilmember absent from voting for a year a minority of three could block any action. In effect, the whole dynamic of the City Council legally changes. This is not to say the change is good or bad. It puts a not what the voters originally voted for or intended.

20359364.doc

It is my understanding that Brian is running unopposed. As I further understand it, notwithstanding the fact that he is running unopposed the Ohio Revised Code allows for a write in candidate who otherwise meets all requirements to get on the November ballot. The point is that in theory at least, there is no guarantee that Brian will be reelected, even though he is running unopposed, because of the write in possibility. I have made every effort to turn over every stone in my analysis. If it appears that the information I am providing is not very supportive of Brian’s request, it is because principally our Charter never contemplated such a situation. An eight cylinder engine is built to run on eight cylinders. The engine is not designed to run on seven cylinders, although, it can, but not for very long. The ultimate decision, of course, is Brian’s. His decision, whatever it is, will then dictate Council’s response. This is an issue that should be settled among the parties, not for their own personal satisfaction but because the decision is the right thing to do for the 40,000 residents’ of Huber Heights best interests. ABS:njk

20359364.doc