Updates and Reader Comments

Updates
Gas Well Committee
As previously discussed, it appears that a majority of Council members prefer drilling in the park over arbitrating Bass Energy's breach of contract claim.
To that end, a Gas Well Committee (GWC) has been formed. Their charge? To select drilling sites in the park.
In an interesting twist, except for Councilman Scott Mills (who appears to be serving in his capacity as Council President), the rest of Council---including the majority who would rather drill than arbitrate---are steering clear of any direct personal involvement in the GWC.  I call this an "interesting twist" because, after all, Council members were elected for the express purpose of representing Highland Heights residents in making important city decisions--not to pass the job off to an honorable but hand-selected, unelected group of delegates instead.
Clearly Council members are hoping to use the GWC to provide them with a layer of political insulation---protection they need in light of residents' previously clearly expressed opinion (through their overwhelming approval of Charter § 14.07) that gas wells should be kept out of the park.

Which makes me wonder: If they are that afraid of taking the flak for participating in the CWC and selecting drilling sites for Bass Energy, maybe its time for the majority of Council that favors drilling to rethink their position. It surely would give me pause, if I was in their shoes.

As announced at the November 23rd Committee of the Whole meeting, here is the list of the GWC members:

• Mayor Scott Coleman
• Council President Scott Mills
• Park & Recreation Committee rep Tony Valentino (selected by Mayor Scott Coleman)
• Paul Byrne (selected by Ward 1 Council rep. Cathy Murphy)
• Edward Dlugos (selected by Ward 2 Council rep. Leo Lombardo)
• John Graves (selected by Ward 3 rep Bob Mastrangelo)
• David Less (selected by Ward 4 rep Lisa Stickan)

Financial Disclosure/Conflict of Interest Policy

In response to my discussion of the woefully inadequate Conflict of Interest Disclosure Form recently developed and distributed by Finance Director Anthony Ianiro, I received some thoughtful and interesting comments from a reader of this blog. I reprint some of those comments here, with that reader's permission:

"Your most recent post about the Disclosure form is spot on.    It really is disturbing that it is taking so long for this to “get done” when the fact remains that this level of transparency is pretty much commonplace today...   I think it would be in the best interest of the City to not only have this form that discloses said information related to ones business interest, but there should also be a NOTICE that goes out to all City Officials and employees that makes it POLICY that any conflict of interest needs to be disclosed immediately.     Furthermore, it is also common for organizations to send such NOTICE to their VENDORS that indicates they too must disclose such interests or potential conflicts both now or in any future business dealings. I will be passing along my comments and frustration with this outstanding matter..."

You just did.
Thanks reader! And to all my readers I say: keep your thoughts and comments coming...
The Catalano's Property
One of the reasons Council President Scott Mills has been pushing so hard to reenergize the city's Economic Development Committee (EDC) is his concern and frustration---shared by many residents---over commercial properties that have sat empty and vacant for so long in the city. One of those properties is the former Catalano's grocery store property.

I had heard that a group of investors was hoping to obtain the site for use as a Marc's store---but the corporation that owns the Giant Eagle grocery story chain nixed that deal. If you've shopped at Marc's recently you are aware of their expanded grocery and produce sections, which compete with Giant Eagle grocery stores.

Apparently there finally is some movement on the Catalano's front.
According to Mills and Mayor Coleman, Giant Eagle's corporate owner has decided not to sell the property after all. Its tentative plan---which would require voter-approved zoning changes---is to put a "Get-Go" gas station and some sort of small accessory  retail store (with a dining area) on part of the property and to subdivide the remaining space in the Catalano's building into smaller storefronts, which would be rented out to other retail businesses.
With the addition of the new Council-appointed residents and business owners, maybe the EDC will be able to shepard along development of the Catalano property--at long last.

Council Waves White Flag: Gas Wells To Be Drilled In Park By Early Spring

    The legal rulings in the Bass Energy suit basically just gave Bass Energy the right to arbitrate its claim that the city breached the drilling lease (the one that Mayor Scott Coleman rushed to sign) when Council declared that there were no safe drilling sites in the park.
The courts did not rule that a breach of contract had occurred or that the city was in any way legally liable to Bass Energy.
    Bass Energy's breach of contract claim is pretty interesting. The drilling lease explicitly gives the city the unfettered right to choose drilling sites---and Bass Energy is required to accept those choices if it wants to drill. The lease also requires the city to give its prior written approval before any drilling can begin.
    Bass's president admitted during his deposition that those conditions were highly unusual--they aren't part of the leases that Bass Energy customarily uses. Although Bass agreed to those conditions, it appears to be  trying to get around them, by asserting a breach of contract claim.
    Following the courts' rulings, Council had four choices: 1) file a legal appeal; 2) offer a cash settlement to end the litigation; 3) invest a little more time and money by going to arbitration; or 4) roll over, wave the white flag, and take orders from Bass Energy with regard to drilling in the park..

Unfortunately, residents discovered at last night's Committee of the Whole meeting, that Council (or at least a majority of Council members) have chosen option # 4: roll over, wave the white flag, and take orders from Bass Energy with regard to drilling in the park.

    The majority of Council made that decision even though residents have very clearly indicated that they do not want gas wells in the park ( 73 % of Highland Heights voters approved a Charter Amendment to protect the park in November 2008).

    Certainly the idea of going to arbitration using the same attorney who litigated in court would not be appealing.  He  gave up significant legal ground at the outset by conceding that the drilling lease was valid and binding on the city---even though, as Judge Gallagher stated in her ruling, Mayor Coleman had "no power" to do so when he signed the lease.  And the attorney apparently also never argued the doctrine that those who do business with cities do so at their own risk, with the understanding that the transaction might not be legally binding if all proper procedures are not followed.
    The good thing is that you start fresh in an arbitration. The city could assert all those arguments. And there are also lots of other attorneys out there. Council has the right to change attorneys at will.
   But it seems that a majority of Council would rather cut and run.   
   So folks, it now looks like we'll all be hearing the sound of drilling rigs--- 24/7---early in the spring. A committee, hand-selected by Mayor Coleman and Council, will apparently decide where those rigs will go.

    Why the rush? Bass Energy, apparently, has decided that it wants to drill before the baseball season begins. And what Bass Energy wants, a majority of Council is willing to give. I hate to think what other demands Bass Energy has made...or about the toxic fracking fluids that are going to be unleashed underground where our children play.

I acutally know a perfect place for the gas wells: Mayor Scott Coleman's backyard.

Since he's responsible for them, he should have to live next to them.
That makes perfect sense, don't you think?

Updates

The Old Church Building is gone.
It is amazing how great the property looks---even with a pile of rubble still sitting on the ground.
I get really excited when I think of the potential that now exists for making a beautiful gateway to our lovely municipal complex area.

My last blog posting.I heard from a long-time reader that my discussion in my last blog about Finance Director Anthony Ianiro’s “Conflict of Interest Disclosure Form” was a bit confusing.
I always appreciate getting feed-back like that. Thank-you!
Let me try again:


Item Four: Ethics/Conflict of Interest Disclosure Form
Status: Quiet Rebellion?


Financial disclosure is a critical part of state and local ethics law. As explained by the Ohio Ethics Commission (OEC):

"The purposes of the financial disclosure requirement are to remind public officials of financial interests that may conflict with their duties and to assist citizens and the three ethics agencies in monitoring the areas of potential conflict of interest of public officials. Public disclosure serves as a deterrent to public officials considering activity that may result in a conflict."


"In an era of rapid communication and broader awareness of use of tax dollars, it is useful for taxpayers, and all citizens, to be aware of safeguards Ohio's Law affords the public. It is also important to know that differences may exist between a variety of permissible private sector practices (like exchanges of gifts or business incentives or family favoritism) in contrast to the expectation of Ohio Law that there be no personal conflict when public monies are expended."

According to the OEC, financial disclosure requirements serve several specific purposes:

1. Remind public officials of those financial interests that might impair their judgment on behalf of the public;
2.  Inform the public of those interests; and
3. Assist in instilling confidence in the actions of public officials.

http://www.ethics.ohio.gov/

Council has been anxious to address the issue of financial Disclosure since being blind-sided and learning that former Park & Recreation Commission Chair Tony Valentino’s company acted as the city’s exclusive HVAC service provider for three years beginning in May 2006---an arrangement that Mayor Scott Coleman approved of, but that council was unaware of.


Not only did Valentino’s doing business with the city raise serious ethical questions, it also violated city financial laws.


HHts Ordinance § 117.04(b) requires that Council officially approve business dealings between the city and any elected or appointed city official before any business transactions take place.  That law was violated in Tony Valentino's case. Not only did Council not pre-approve the hiring of W.F. Hann & Sons, as required by § 117.04(b), it didn’t even know that Valentino had a business interest in that company or that the company was doing business with the city.


The Valentino situation raised a huge red flag with regard to the city’s financial controls. In addition to referring the Valentino matter to the OEC, Council responded by asking Finance Director Tony Ianiro to come up with a public disclosure of financial interests form, to be filled out by everyone covered by state ethics laws.


L&F has been waiting since July to receive a draft of that disclosure form from Ianiro,  for discussion and review.

For whatever reason, the idea of financial disclosure seems to make the Finance Director nervous.

Rather than providing L&F with a draft form to discuss, Ianiro apparently decided to end-run Council on the issue. Displaying his trademark prickliness, Ianiro informed an astonished L&F on Tuesday night that he had already begun distributing what he titled a “Conflict of Interest Disclosure Form”---a Form that he chose not to share or discuss with L&F beforehand and which he insisted should be returned directly to him, rather than to the Clerk of Council---thereby keeping the disclosed information from Council.


Ianiro’s decision to bypass Council is disturbing enough, but his supposed disclosure Form is even more troubling. L&F members expressed several significant concerns about the Form. Among them:

• Issue One. Ianiro decided that only elected and appointed city officials should be required to fill out his disclosure Form---even though state and local ethics laws apply to both city employees and city officials.
• Issue Two. Ianiro’s Form is extremely limited in scope—much too limit to serve its intended purpose.
  Inairo does not require city officials to disclose all of their significant business interests upfront. He only requires them (as of the date the Form is filled out) to disclose business interests and/or affiliations with persons or entities that are “currently transacting or may enter into a transaction with the city.”
  Basically no financial information has to be disclosed unless: 1)  an official is already doing business with the city;  or 2) the official thinks, at the time he or she signs the form, that they “may” do business with the city at some time in the future.
  How is an official supposed to know if they “may” do business with the city? Who knows. That disclosure requirement is based entirely upon an official’s self-prediction about the future. There is no requirement that the prediction be right. Obviously this amounts to a huge loophole. All an official has to say--to justify nondisclosure--is that they didn’t think that they might be doing business with the city when they filled out the form--and they are off the hook.
  It is clear that Ianiro’s Form simply doesn’t do the job Council intended it to do. Still not convinced? Think of the Valentino situation.
  W.F. Hann & Sons’ first invoice was processed by the city on May 31, 2006. That means that Valentino’s business dealings with the city began in or around May 2006.
  If he had received Ianiro’s Form to fill out in January 2006, after P&R Commission appointments were made, Valentino would have stated that he had absolutely nothing to disclose—he would not have been required to disclose his business interests in W.F. Hann & Sons because the company had not yet begun doing business with the city, and Valentino could claim that he did not anticipate that his company would start doing business with the city five months later.Valentino’s first disclosure of his business interest, therefore, would not have occurred until January 2007, when he filled out Ianiro’s disclosure Form again, for the next year. By that time the disclosure of his business interests would come too late---W.F. Hann & Sons would already have been doing business with the city (without the required pre-approval by Council) for seven months.
• Issue Three. Ianiro’s Form does not require that officials make additional disclosures each time their financial situation changes. The cover letter that Ianiro wrote to accompany his Form states: “Should any situation change for you, you may of course complete another form.”
  Anyone with an ounce of common sense knows there’s a huge difference between “may” and “must.” The “may of course” language takes the disclosure obligation even further away from a requirement.

The whole idea of disclosure is to require employees and officials to list all of their business interests: 1) so that any potential conflicts can be discovered and avoided before they occur; and 2) to make sure that HHts. Ordinance § 117.04(b) is complied with. Ianiro’s disclosure Form won’t necessarily accomplish either of those things.


Mayor Scott Coleman, who attended the L&F meeting, kept quiet and expressed no concerns about or dissatisfaction with Ianiro’s disclosure Form.

Finance Director Tony Ianiro’s “Conflict of Interest Disclosure Form” has nothing to do with real disclosure, transparency or honest and open government. It amounts to little more than a false show of concern for our city’s ethics and finance laws. It certainly doesn’t reflect any real commitment on the part of either Mayor Coleman or Finance Director Ianiro to improve the city’s financial controls. It appears to be nothing more than a smoke and mirrors cover for conducting business as usual.

And so it goes. ...

Quietly Rebelling AND Conducting Business As Usual

There is so much going on in the city, it can be easy to let things slip through the cracks.

One group that has done a good job of staying on top of things is Council’s Legislative & Finance Committee (L&F), composed of Councilman Leo Lombardo (chair) and Councilwomen Cathy Murphy and Lisa Stickan.
Unfortunately, L&F doesn’t always receive the cooperation from city administrators that it deserves.
That’s a real shame because the city—and city residents---are best served when there is good communication and collaboration between Council and the administration.
More on that below.


City Watch

Item One: Old Church Building (OCB) Demolition
Status: Asbestos Abated. Knock-down scheduled for Nov. 11thCity Engineer Steve Hovancsek reported that all of the asbestos materials had been removed and that Ace Demolition would start demolishing the building on Thursday November 11th. Now you see it, now you don’t…

 Item Two: Legislation Covering the Use/Marking of City-Owned Vehicles
Status: L&F is still waiting to receive a copy of the proposed legislation.
Although L&F didn’t have a draft ordinance to review, it agreed that the ordinance (and city policy) should be guided by, and follow, IRS rules.
That means Police Chief Cook, Fire Chief Turner, and the top executive officer in both the police and fire departments will be allowed to take their city-owned vehicles home, without any restrictions on use, because their vehicles qualify as safety service command vehicles.
Service Director Thom Evans will also be allowed to continue to drive his city-owned vehicle home (as he has done for many years), but he will have to pay tax on his commuter-related use of the car and only “de minimus” personal use of the vehicle will be allowed.
Other employees, such as Building Commissioner Dale Grabfelder, will have access to city-owned vehicles while at work, but generally will not drive those vehicles home.



Item Three: Legislation Reconfiguring the City’s Economic Development Committee
Status: Still undergoing some final revisions, but council gave it a second reading. It will be ready for passage once Law Director Tim Paluf finishes tweaking it.
Two final changes were discussed. The number of citizen members has been increased to a maximum of five (from the original three) and the term will be for two years.
Council President Scott Mills reported that he’s had “lots of good interest” expressed by residents interested in serving on the Committee.



Item Four: Ethics/Conflict of Interest Disclosure Form
Status: Quiet Rebellion?

L&F has been waiting since July to receive a draft disclosure form from Finance Director Anthony Ianiro.
Council has been anxious to address the issue since being blind-sided and learning that former Park & Recreation Commission Chair Tony Valentino’s company acted as the city’s exclusive HVAC service provider for three years---an arrangement that Mayor Scott Coleman approved of, but that council was unaware of.
It’s not just ethics laws that are at issue. A city financial ordinance, HHts Ordinance § 117.04(b), requires Council's formal approval before any goods or services are purchased from, or supplied by, any elected or appointed city official. That didn’t happen in Tony Valentino's case. In fact, Council was apparently unaware that Valentino had a business interest in W.F. Hann & Sons or that the company was doing business with the city.
That’s where the disclosure form is supposed to come in. The best and most practical way to make sure that the ethics and financial laws are followed---and to avoid a repeat of the Valentino situation---is simply to require that city officials and employees annually disclose any business interests and affiliations that they (or their family members) have. That way everyone---Mayor Coleman, Finance Director Tony Ianiro, and Council----will be put on notice as to whether the special pre-approval requirements of § 117.04(b) apply.


A draft of that kind of disclosure form was what L&F expected to receive from Finance Director Tony Ianiro. Unfortunately, that is not what L&F got.


Ianiro apparently decided to completely bypass (i.e. end-run) Council. Displaying his trademark prickliness, Ianiro informed an astonished L&F on Tuesday night that he had already begun distributing what he titled a “Conflict of Interest Disclosure Form”---a Form that he chose not to share or discuss with L&F beforehand and which he insisted should be returned directly to him, rather than to the Clerk of Council.


Ianiro’s decision to bypass Council is disturbing enough, but his supposed disclosure Form is even more troubling. L&F members expressed several significant concerns about the Form. Among them:

• Ianiro decided that only elected and appointed officials should be required to fill out the disclosure Form, even though state and local ethics laws apply to both city employees and city officials.
• Ianiro’s Form is extremely limited in scope---so limited, in fact, it will not prevent a repeat of the Valentino situation. Rather than requiring employees and officials to list all of their business interests, so that any potential conflicts can be discovered and avoided before they occur, Ianiro’s Form only requires disclosure of business interests and/or affiliations with persons or entities that are “currently transacting or may enter into a transaction with the city” on the date that the Form is filled out. It is too late---way too late---for disclosure if an official is already doing business with the city.
  And it is patently absurd to base the duty of disclosure on an official’s self-prediction as to whether they “may enter into a transaction with the city.” Whoops! Wrong guess? Never mind.
• Ianiro’s Form also does not require additional disclosures as new business interests are acquired.
  The cover letter that accompanies the Form states: “Should any situation change for you, you may of course complete another form.” Anyone with an ounce of common sense knows there’s a huge difference between “may” and “must” . The “may of course” language takes the disclosure obligation even further away from a requirement.

Mayor Scott Coleman, who was present during the discussion, keep pretty quiet and expressed no dissatisfaction with Ianiro’s disclosure Form.

The “Conflict of Interest Disclosure Form” distributed by Finance Director Tony Ianiro has nothing to do with real disclosure, transparency or honest and open government. It amounts to little more than a false show of concern for our city’s ethics and finance laws. It certainly doesn’t reflect any real commitment on the part of either Mayor Coleman or Finance Director Ianiro to improve the city’s financial controls. It appears to be  nothing more than a smoke and mirrors cover for conducting business as usual.

And so it goes. ...