CHARTER REVIEW BOARD

CITY HALL, 100 LOCKVILLE ROAD

THURSDAY, FEBRUARY 4, 2010

REGULAR MEETING

7:00 P.M.

1. ROLL CALL. The meeting was called to order at 7:00 P.M., with roll call as follows: Mrs. Chapman, Mr. McKinney, Mr. Hackworth, Mr. Gray, Mr. Holstine, Mr. Kramer, and Mr. Donathan were present. No members were absent. Others present were: Phil Hartmann, Lynda Yartin, and Mayor O’Brien.

2. APPROVAL OF MINUTES OF January 14, 2010, Regular Meeting. Mr. Kramer moved to approve; Mr. McKinney seconded the motion. Roll call was taken with Mr. McKinney, Mr. Hackworth, Mr. Donathan, Mr. Gray, Mr. Holstine, Mr. Kramer, and Ms Chapman voting “Yea.” Motion passed, 7-0.

3. COMMUNITY COMMENTS. None.

4. SCHEDULED MATTERS:

A. Review and discussion of Charter Sections 1 and 2. Mr. Hackworth stated the law director had provided a memorandum on the first two articles of the Charter for discussion. Mr. Hackworth further requested the law director provide a memorandum on Articles 3 and 4 for the next meeting. Mr. Hackworth stated he would recommend the Board review the first four articles before making any recommendations on revisions. Mr. Hackworth further stated he had spoken to the Finance Director and he has some issues with the way appropriations are dealt with. Mr. Hackworth requested Mrs. Yartin provide the Board members with the Finance Director’s memorandum regarding those concerns. Mr. Hackworth further stated he felt an open meeting regarding the proposed changes should be scheduled and questioned when that should occur. Mr. Hartmann stated that would be the Board’s decision, however, he felt it would be better to hold a public hearing after the Board has formulated the type of changes they were recommending.

Mr. Hartmann clarified that the Board would like to discuss each article prior to making any recommendations for changes or revisions.

Article I: Incorporation, Powers, and Form of Government.

Section 1.01, Incorporation. There were no questions.

Section 1.02, Powers. Mr. Hartmann stated he had some suggested changes in this section. Mr. Gray inquired what was wrong with the current wording, because if it were just something that made it easier for an attorney to read he was not sure that was a good enough reason to change something that has been in the Charter since it was first written. He stated he wanted people to know that any change being recommended was because it was substantial. Mr. Gray questioned what exactly in the paragraph has caused us not to be able to function or do what we have to do or caused people not to understand what we do as a City. Mr. Hartmann stated he was not familiar with any problem the current language has caused, and the purpose behind the changes was that there has always been some ambiguity with the construction of power and the way you read it. He stated that is why he has broken that out to say that the Charter shall be construed liberally in favor of the City. He stated that is something that wasn’t in there and if there were an argument over exactly what a certain section meant, you would have that fallback provision that it is pretty much the City’s ability to construe it as they have it to be construed. Mr. Hartmann stated that was the reason for his suggestion, just to clean up issues like that. He stated it is if the desire of the group is to go through and do a lot of changes to update the Charter or if you want to do bare bones because there are certain changes you believe in and just want to put those on the ballot. Mr. Kramer stated he had noticed that Mr. Hartmann had indicated several suggestions were to “simplify” or “clarify” and he questioned if he should then assume there was some level of ambiguity or lack of clarification on what is being said in that section. Mr. Kramer stated his concern was if there is room in the Charter for interpretation, then this Board needs to address that because the Charter needs to be as clear and concise as it possibly can be. Mr. Hartmann stated he would call these provisions the general, gloss over provisions. He stated you generally don’t go to these provisions unless you are in some debate over how you interpret some other provision. He stated the goal was to basically break it out a little clearer as to how that would be and provide more power to the attorney to do what the City wants if someone is trying to interpret it differently. Mr. Hartmann stated these are not issues that have come up to cause this; he was just trying to be proactive. Mr. Hartmann stated the exercise of powers section better exercises how the powers should be exercised in the sense that if it is not in the Charter then it is as the legislation of the City and if you don’t have legislation then you go to the powers exercised by the laws of the State of Ohio until council provides differently, which always gives you much more leeway. Mr. Hartmann stated the biggest difference is if you do not have in the Charter that the powers of the City under this Charter shall be liberally construed in favor of the City, it will generally be construed against you. He stated if there is an argument to be made for this change that would be the biggest issue. He stated you would be providing yourselves with a little more of a legal basis for a challenge of an interpretation of the Charter.

Mr. Hartmann stated he would like to go back to Section 1.01 briefly. He stated although it was not in his memo, he did suggest removing the sentence that reads, “No territory shall be detached from the municipality nor shall the municipality be annexed to any other municipality without the consent of the majority of the electors voting on such question.” Mr. Hartmann stated that has been struck down by the Supreme Court, the detachment laws have been considered General Laws and you cannot change what the Revised Code has and the way a person can detach a piece of property has to go by the three methods in the Revised Code. Mr. Hartmann stated currently the Charter would have a provision in it that is in conflict with State law. Mr. Gray stated that was the type of change that made sense to him, because there is a reason to change it. Mr. Hartmann stated that is a substantive change he would suggest because it is in conflict with the current law of the State. Mr. Hackworth clarified that detachment is a “de-annexation.” Mr. Hartmann stated this does not come up a lot, but there have been a couple of major cases on it in the past two or three years and it has become more and more an issue where people are upset with the City and they want to take their property out of the City and annex to another City. He stated there was a Supreme Court case that said the City cannot change the detachment procedure because that is a General Law of the State, it is uniform and a detachment procedure must follow the Revised Code. Mr. Donathan clarified that Mr. Hartmann would add this change into his proposed recommendations the Board would review. Mr. Hackworth further clarified a Charter cannot change the annexation procedures either, but you have that covered under the General Laws.

Section 1.03, Form of Government. Mr. Hartmann stated he did not have any suggestions for this section. Mr. Hackworth stated he felt this would be a major issue and this Charter has been around for 26 years but he has not heard anyone say they wanted to change the form of government. Mayor O’Brien stated he would like to let the Board know from an historical perspective that this form of government was chosen by a citizen’s initiative, it is not something that was just dreamed up, but was requested by the citizens. Mr. Hackworth stated there were some initiatives in the past, one dealing with the supervision of the manager and the other dealing with emergency legislation. He requested Mrs. Yartin include information on those initiatives in the next packet so the Board would be aware of what had been requested by the citizens in the past. Mr. Hackworth stated he felt this form of government section would be one they would be talking about a great deal. Mr. Hartmann stated he would suggest continuing the review and then coming back to this section after completing the articles.

Section 1.04, Definition of Elected Official. Mr. Hackworth inquired why we had to define what an elected official was and Mr. Hartmann stated he was not sure why this was included as it is defined in the Revised Code. Mrs. Yartin stated the last Charter Review Board had added this language to clarify that an individual appointed to Council was considered the same as an individual who had been elected to Council.

Article II: Council.

Section 2.01, Number and Term. Mr. Hartmann stated this section is fairly self-explanatory and it would be where you would get into whether you want to change how the seven members are elected; if they are at large or if you were interested in looking at Wards. Mr. Hackworth stated wards have been discussed in the past, but he did not feel we were at the point where we need to do wards. Mr. Gray stated while he does not feel strongly about wards one way or another, there are some upsides and downsides to them. Mr. Gray stated it is a lot less expensive to run a campaign in a small ward so you would open it up to people who have less ability to fund a campaign, but have the ability to put in a lot of work. He stated the city is so big now, that it is getting more difficult to run a campaign without financing. Mr. Gray stated a downside could be that someone could hold that seat for a long time. Mr. Hartmann stated generally wards are in cities where you have distinct barriers and he did not see that in Pickerington. Mr. Hartmann further stated wards also add a layer of politics when it comes to voting on council. Mr. Kramer inquired if with a ward system what would happen if there was no candidate for a specific ward, and Mr. Hartmann stated something could be added to the Charter regarding this or perhaps council would fill the vacancy, but he has never seen that. Mr. Gray stated if he had to vote on this right now he would be in favor of keeping it the way it is. Mr. Hartmann stated this would also be the section that would provide term limits if the Board desired to include that.

Section 2.02, Compensation. Mr. Hartmann stated the only suggestion for this section is to add language that outlines that nonmonetary benefits include health insurance. He stated the only purpose for putting that in is because currently there is an Attorney General opinion that states health insurance shall be considered a monetary benefit to a council person, and according to the AG opinion, the city cannot change health insurance policies. Mr. Hartmann stated this would hamstring a whole city negotiating a health insurance policy because a council member cannot change it in term since it is considered a monetary benefit. He stated he would suggest putting this language in just to safeguard should there be any lawsuit.

Section 2.03, Meetings. Mr. Hartmann stated currently the Charter requires Council to meet at least once a month and a majority is considered a quorum. He further stated special council meetings may be called by the Mayor or three members of council. Mr. Hartmann stated this also secures council’s rights to go into executive session as outlined in the Revised Code. Mr. Hartmann stated other reasons that are not included in the Revised Code can be added, for example, some municipalities put in that they can go into executive session to discuss economic development opportunities because a lot of times you do not want to talk about that in public if you are trying to work out a deal. He stated that is not currently covered in your Charter. Mr. Hartmann stated this is merely a suggestion and it might be something that might be a volatile issue for the public. Mr. Hackworth stated he felt that executive sessions were very important, not to hide things, but there are certain things that council must discuss in private. Mr. Donathan inquired if it would be possible to get a summary of what is considered applicable for executive session at this point, and Mrs. Yartin stated she would include it in their next packets. Mayor O’Brien stated he did not recall any executive sessions council had held that were not attended by the law director to ensure they stayed to the intent of the executive session. Mr. Holstein clarified that council can go into executive session to discuss an issue, but they cannot vote or take action while in executive session. Mr. Hartmann stated to go into executive session, a motion must be made specifically stating which section they are going in under the Revised Code, and there must be a roll call vote. In coming out of executive session they must reconvene in open session and a motion can be made for any action if necessary. Mr. Holstein clarified then that the discussion in executive session is private but the subsequent vote is done in an open meeting.

Mr. Gray stated a quorum of council is four and if a quorum is present, to pass an ordinance does it require four votes or is it a majority of members present. Mr. Hartmann stated under the current Charter it would still require four votes. Mr. Gray stated at times that can be a problem, especially if you need to suspend the rules because that requires the vote of three-fourths of council. He stated if you had to have an emergency meeting and two members were on vacation, the five members could not dispense with that business because you need six votes to suspend the rules. Mr. Hackworth stated that has happened in the past and they had to call consecutive special meetings to get all three readings. Mr. Hartmann stated further under the current council rules a council member can abstain on anything without giving a reason, so a person could basically control the vote without voting. Mr. Gray stated he felt that having three-fourth’s vote was a good number, but it should be of the members present. Mr. Donathan requested the law director provide a clear meaning on the second sentence in this section regarding “a lesser number may adjourn by majority vote from day to day…” Mr. Hartmann stated this is common language in Charters, but he would look into that and provide a clearer definition.

Section 2.04, Roll of the Mayor and Veto Powers. Mr. Hartmann stated this is a matter of the Mayor’s veto power and the role of the Mayor and he had no suggestions on this section. Mr. Hackworth stated he felt this was out of place and should be in Article 3 under the Mayor. Mr. Hartmann stated in discussion with Council they had discussed moving this under an article on the Mayor and creating a new article for the City Manager. Mr. Kramer stated he felt this section made it very clear that the Mayor supervises the City Manager, however, he felt it left room for interpretation later on in Article 3, and he felt this should be clarified. Mr. Hartmann stated this is a not a normal provision and he has not seen it in any other Charter. Mr. Hartmann stated the concern comes up when a Mayor is requesting the Manager to do something that he does not feel has the support of Council. Mr. Hartmann stated on a day-to-day basis this could create a conflict. Mayor O’Brien stated the Manager takes direction from two sources, the Mayor and the majority of Council. Mayor O’Brien stated if council requests the Manager to do something in the form of a motion, a majority vote of council would be the Manager’s direction. Mr. Kramer stated he agreed with the Mayor and in the past he felt some council members have lost sight of the fact that if they want to provide direction to the City Manager then they should make a motion at Council, otherwise the Manager will take direction from the Mayor. Mr. Gray stated with regard to motions, he thought it was very clear they were for elections and things of that nature. He stated he felt for Council to actually give direction it would have to be done with a resolution or an ordinance because the Mayor should not lose his right to veto. Mr. Hartmann stated he agreed and a motion should only be used, for example, if the law director is getting calls from one council member to do special work, so a motion with the support of four members would provide direction to the law director. Mr. Gray states this section also refers to the Employee Relations Manual and if you were going to discipline the Manager he thought you would want it to be the same as when you discipline other employees. He questioned if the wording here should be clarified. Mr. Gray stated he thought the concept was to make it all the same and it should be clear that if the Mayor were going to supervise and discipline, he should have the ability to do just that. Mr. Hartmann stated he agreed this is something that should be cleared up and wording such as “The Mayor has the right to discipline the Manager in accordance with the Employee Relations Manual as the Manager can discipline department heads” or something like that should be added.

Section 2.05, Powers. Mr. Hartmann stated this just basically outlines the power the City has vested in Council.

Section 2.06, Ordinances and Resolutions. Mr. Hackworth stated this section talks about emergency ordinances and in the past there was an abuse of this action. He stated when an ordinance is passed as an emergency the citizens no longer have the right to run a referendum because it becomes effective immediately. He continued that if residents disagree with an ordinance passed by Council they do have a right, in most cases, to run a referendum and submit it to the City. Mr. Hartmann stated Mr. Hackworth is correct that there have been some abuses by some Councils, and there is case law that if you are passing something by emergency there must be a specific reason as to what the emergency is in the ordinance. Mr. Hartmann stated the interesting thing in this section is that ordinances and resolutions both require three readings and they both require a 30-day wait period unless they are appropriations. He stated this is not common and in most places resolutions are usually effective immediately because they are of a lesser nature, they can’t be of a permanent nature. He stated further most communities have lessened the number of readings required to two readings. Mr. Hackworth stated in looking through the Charter the definition between ordinance and resolution is not very clear. He stated he would request the law director provide a clear definition as to what a motion is, an ordinance is, and what a resolution is. Mr. Hartmann stated he did feel that three readings were excessive since it also goes through committee. Mr. Gray stated three readings are required and if something needs to be passed more quickly, you just suspend the rules, and this just requires a higher majority vote. Ms Chapman stated she agreed that more specific definitions on ordinances and resolutions would ensure that the residents knew exactly what was being considered. Mr. Gray stated there were major protections on the consent agenda with the ability of any council member, the Mayor, or any citizen being able to request an item be withdrawn from the consent agenda and included on the regular agenda. He stated this would allow things to move along more quickly and that would be nice at times. Mr. Kramer stated he thought this section was very important and required a lot of discussion. He stated until he receives more information on what a motion, ordinance, and resolution are he would like to continue this discussion until the next meeting so he would have time to really look at the content and understand what it actually meant.

5. CHAIRMAN. Mr. Hackworth stated he agreed with Mr. Kramer and he would like to continue the discussion of Section 2.06 at the next meeting along with Articles 3 and 4. Mr. Hackworth further clarified that Mrs. Yartin would provide information on the past initiative actions, the discipline section from the Employee Manual, definitions on ordinances, resolutions, and motions, and Mr. Hartmann’s memorandum on Articles 3 and 4. He further stated Mr. Hartmann would address the meaning of the language in Section 2.03 for the Board as well.

6. OTHER BUSINESS: No other business was brought forward.

7. ADJOURNMENT. There being nothing further, Mr. Kramer moved to adjourn; Mr. McKinney seconded the motion. Mr. Hackworth, Ms Chapman, Mr. McKinney, Mr. Kramer, Mr. Holstine, Mr. Gray, and Mr. Donathan voted “Aye.” Motion carried, 7-0. The Charter Review Board adjourned at 9:05 P.M., February 4, 2010.

RESPECTFULLY SUBMITTED:

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Lynda D. Yartin, Municipal Clerk