In a Sun Messenger Letter to the Editor this week, a Lyndhurst Councilman pointed a finger at me, claiming that I engaged in an improper and unfair personal attack on Mayor Scott Coleman when I addressed Council on March 13th.
I hadn't intended to publish my speech---because I was really just talking to Council---but since the content of my speech has been questioned, I figure it's appropriate to post it.I encourage readers to decide for themselves whether what I said constitutes fair and legitimate discussion about matters of public concern or if, as Mr. Gambatese claimed, it was inappropriate commentary.
You can contact me to share your thoughts by using the email link in the right panel of this blog.
Here goes:
So have we convinced you yet?Residents have been told during every council meeting for the last 6 weeks that tonight was that night that Council would vote on the new drilling resolution.March 13th has arrived and instead of taking a vote, you have pulled Resolution 6-2012 off the agenda.I hope you understand how very bad that looks.I’d buy your excuse for postponing the vote except for the fact that you’ve known about the wetlands issue for over 4 years.A December 6, 2007 letter to the editor pointed out that one of the original drilling sites was sitting in a wetlands. That’s essentially the same site that you’ve chosen as well site # 1, the one next to the park parking lot.The gas well committee discussed the wetlands a year ago. After that discussion only Mayor Coleman and two others voted to drill in that spot. A majority of the committee members didn’t think drilling there was a good idea at all.You have discussed the wetlands too. During a January 2011 committee meeting you heard the city engineer recommend undertaking a formal delineation of the wetlands.After ignoring the issue for more than four years, Council is suddenly concerned about the wetlands?I’m sure having a chamber full of angry residents has nothing to do with it----right?Residents have come here as witnesses, to see for themselves just who among you has the temerity to vote to put gas wells in the Community Park.There are so many things wrong with Resolution 6-2012 that’s it’s hard to know where to begin.There is a saying that goes like this: if you find yourself in a hole, stop digging.You’re in a hole, and your plan is to dig deeper.Three ultra vires acts led us here tonight.If you pass Resolution 6-2012 you will be committing a fourth ultra vires act.Ultra vires---what do I mean? Ultra vires is an exercise of power in excess of authority. Ultra vires acts cannot be ratified or made legal and they can be challenged in court.Council does not have the power or authority to ratify or legalize the prior ultra vires acts that brought us here tonite.What are those acts? Let me tell you.
Ultra vires act #1: Council passes a resolution in 2007 that conditionally authorizes the mayor to sign two drilling leases, one for the Community Park and one for the Municipal Complex.In adopting that resolution, Council ignored Highland Heights Ordinance § 733.20(d)---an ordinance that bars gas wells from the city park.Law Director Tim Paluf later--and quite properly---concluded that although the state took away the city’s power to issue drilling permits, Ordinance 733.20(d) was still binding on the city in its role as a municipal property owner.So Council’s 2007 drilling resolution is ultra vires act #1.
Ultra vires act #2: Mayor Coleman’s execution of the original drilling lease for the park.Council is allowed to limit the mayor’s authority to execute contracts, and contracts aren’t valid if the mayor doesn’t have authority to sign them.By law, it’s up to the people who do business with the city to make sure that municipal contracts are properly authorized and validly executed.Council’s 2007 drilling resolution didn’t take effect as soon as it was adopted. In fact, it never took effect because a precondition imposed by council---namely that the parties agree on 3 well sites first—was never met.That’s what Common Pleas Court Judge Eileen Gallagher meant when she stated that the mayor had “no power” when he signed the drilling lease. He had no power because the resolution authorizing him to sign drilling leases hadn’t yet taken effect.The mayor’s act in signing the original drilling lease before he was authorized to do so is ultra vires act #2.
Ultra vires act #3: the former city engineer’s selection of well sites for Bass Energy.The city didn’t hire Bass Energy as a contractor to drill gas wells in the park. The drilling deal, instead, was an arms length transaction between two independent entities with potentially conflicting interests.As city engineer, Andy Blackley was supposed to work exclusively for the city, but he admitted under oath that he worked for Bass Energy too. Bass paid him to select drilling sites and to produce the site map that Bass used to get drilling permits for the park.Blackley didn’t tell Council what he was doing, and he didn’t get written approval of the well sites from the city as required by the lease.That’s ultra vires act #3.Resolution 6-2012 authorizes the mayor to sign a new drilling lease for the park, and the target drilling sites that you have selected are the same ones that Bass Energy paid Mr. Blackley to select.That’s not a fluke. The inclusion of those wellsites clearly demonstrates that your new drilling resolution is nothing more than an improper and invalid attempt to ratify and legitimize the prior ultra vires acts of Council, of Mayor Coleman and of Mr. Blackley.If you pass Resolution 6-2012, residents will have no choice but to file a O.R.C. § 733.59 suit, to prevent your ultra vires resolution from taking effect. Residents don’t want to have to take such a terrible, terrible step. Please, please don’t make us do that.It’s absolutely incomprehensible that Council would pass a resolution allowing gas wells to be drilled in the park when, in 2008, residents overwhelming adopted a new Charter provision that bans gas wells from the park.While the original drilling lease predated that vote, your new drilling lease does not.Resolution 6-2012 violates § 14.07 of our city Charter.It’s hard to believe we are even having this discussion when residents are so clearly and adamantly opposed to drilling gas wells in the park.The only excuse I’ve heard is that Council is afraid to go to arbitration as ordered by Judge Gallagher because it might result in a money judgment against the city.
You justify drilling as a responsible act--one taken to protect the public purse.I want to remind you of something.It’s not YOUR money, its OUR money.Residents are the ones who pay the taxes and fill the city coffers—and those residents decided four years ago to take drilling in the park off the table.If your intent is to protect the public purse, I’ve got to say you’re doing a pretty lousy job there too.Steubenville just agreed to a drilling deal that includes a $5,400 per acre signing bonus and a 19% royalty payment.Your drilling deal, which involves 40 acres of city parkland, will bring in a $10,000 spud fee and 12.5% royalties. That’s it. You sure know how to be fine protectors of the public purse.Bass Energy will be laughing all the way to the bank.We are very fortunate in this city. The city has close to $7 million sitting in its bank account and the finance director expects that we will operate in the black again this year. A judgment for Bass---in the unlikely event that Bass actually prevailed in arbitration---isn’t going to bankrupt us.The city is also fortunate to have thoughtful, engaged residents. In 2008, 3,607 of those residents voted to protect the Community Park from gas wells. There couldn’t be any clearer expression of residents’ wishes than that.Residents don’t deserve to be ignored or treated with contempt. Council need to obey their wishes and the rule of law in our city.
If you pass Resolution 6-2012, you will fracture the city.For your sakes and for ours---Please don’t fracture the city by allowing frac gas wells to be drilled in the park.Stop the madness.You’ve taken Resolution 6-2012 off the table tonite. Now go one step further and throw it in the garbage can where it belongs.Thank you.
