CHARTER REVIEW BOARD

CITY HALL, 100 LOCKVILLE ROAD

THURSDAY, MARCH 4, 2010

REGULAR MEETING

7:00 P.M.

1. ROLL CALL. Mr. Hackworth called the meeting 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 and Lynda Yartin.

2. APPROVAL OF MINUTES OF February 4, 2010, Regular Meeting. Mr. Donathan moved to approve; Mr. Kramer 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.

Mr. Holstine stated he had recently been notified that he was going to be deployed to Afghanistan from July through January, and he wanted to make this group aware of that. Mr. Gray stated he would be surprised if this group had not completed the review of the Charter by July and Mr. Hackworth stated once they have completed the review of the first few sections he thought the remainder would move quite rapidly. The consensus of the group was to continue with the review and Mrs. Yartin stated she would make Rules Committee aware of this as well.

4. SCHEDULED MATTERS:

A. Continue review and discussion of Charter Article II, Section 2.06. Mr. Hackworth stated they would pick up where they left off at the last meeting with Section 2.06. Mr. Hackworth further clarified that all Board members had received the information provided regarding past citizen initiatives that resulted in Charter changes.

Mr. Hartmann stated he felt Section 2.06 could be broken down first by the actions of council and then basically the initiative emergency language that was added. Mr. Hartmann stated he had provided definitions of motions, resolutions, and ordinances, and he would point out that resolutions and ordinances are identical in how they go through council. He stated this is a little different from most places where resolutions are much simpler and of a temporary nature so they are usually effective immediately and generally do not take as many readings. He stated the other issue is whether you wanted to continue on with three readings of everything. Mr. Hartmann stated he would suggest this be broken into subsections and a lot of charters have a section for the form of action by council, which basically outlines what council can do and then you have separately defining what a motion can be, what a resolution is, and what an ordinance is and how those are passed by council. Mr. Hartmann stated currently a resolution requires three readings and is effective in 30-days unless it says otherwise, the same as an ordinance. He stated that could be changed and put that within the definitions. He stated next would be the consent agenda for which he has no suggested changes, and then would be how you vote, emergency ordinances, the notice provisions, codification, adoption of technical codes, and appropriation legislation. He stated this would be his suggestion on how to have it organized to make it a little easier to follow. Mr. Kramer stated he thought that everyone agreed that this section should be split into sub-sections, and perhaps the next step would be to determine what those sub-sections should be. Mr. Hackworth stated he would also suggest that if the Board can complete Sections III and IV tonight, then next month start determining what revisions everyone thought should be made to that point. Mr. Hackworth determined that all Board members would like to have the definitions of motions, resolutions, and ordinances included. Mr. Donathan stated he thought the dollar amount for the consent agenda could be increased, and Mr. Hartmann stated one suggestion he would make is that council be allowed to establish a limit by ordinance so there is not a threshold for ten years. Mr. Gray stated anyone in the public can ask that an item be removed from the consent agenda and anyone on council can ask that it be removed. He stated they could pick a higher number, but also state that it could be changed by ordinance. Mr. Hackworth stated he thought there were some court decisions on emergency legislation and Mr. Hartmann stated there have been some court decisions where cities have passed legislation as an emergency just using general language, and the court says you need to be specific about what the emergency is. Mr. Hartmann stated it is much simpler than what is now in the charter, it would not require the four different statements, it just requires specificity about what the emergency is. Mr. Hartmann stated what you have is significantly more detailed. Mr. Hackworth stated he was looking at shortening that up if everyone would be okay with that. Mr. Hartmann stated the only non-substantive change he would suggest is that instead of saying three-fourths of council just put six members or five members if it is two-thirds, using hard numbers rather than fractions. Mr. Gray stated they had also discussed if it should say of those present, because if you are using that you do want the fraction and not a hard number. Mr. Hackworth stated if it is truly an emergency situation what you want is a super majority, but if you have to have three-fourths, and it is a hard number, you might not be able to get things done. Mr. Hartmann stated in the council’s administrative code, they have the right to abstain on any vote with no questions asked. He stated if a council member can abstain and basically control the vote, so with hard numbers and the right to abstain they are kind of at odds with each other. Mr. Hackworth stated he would like to have the Finance Director come to the meeting to address things dealing with finance. Mr. Hartmann stated there is a provision that addresses appropriation legislation and that it becomes effective immediately. Mr. Hartmann stated he has seen a charter where they defined when legislation would become effective, and we could do something similar to that. Mr. Hartmann stated as an example if you are using resolutions and they are effective immediately, depending on how you define the resolution, Dublin, for example, passes all of their contracts as a resolution so it becomes effective immediately because contracts are temporary in nature. He stated that would be one solution to avoid the 30-day wait, still have three readings if you want but make it effective immediately upon passage. Mr. Hackworth stated he felt the biggest problem with the emergency, or at least what was going on here, was with annexations, rezonings, and things like that. He stated he did not see how those types of things could ever be an emergency. Mrs. Yartin stated another issue to consider would be if items on the consent agenda could be effective immediately. She stated currently appointments to Boards and Commission, accepting donations, accepting rights-of-way, etc., can be passed on the consent agenda but there is still the 30-day wait for the effective date. Mr. Hartmann stated that would make sense and Mr. Hackworth stated in the definitions it could be included that the consent agenda items would be effective immediately. Mrs. Yartin stated there was still the provision that if anyone had any objections it could be removed from the consent agenda. Mr. Hartmann stated he just assumed they were effective immediately and he would suggest that change. Mr. Kramer clarified the consent agenda has just one reading, and questioned if three readings was a common requirement in other charters because three readings would take a month and a half, and then there is the 30-day wait for the effective date. Mr. Hartmann stated it is not very common and most places you will see two readings. Mr. Kramer stated he understood the number one reason you hear the reason for the three readings is so the public has the opportunity to be made aware and to get involved, and he understood that, but still a month and a half is a long time. He stated he felt this Board should look at reducing that requirement to two readings at the most. Mr. Hackworth stated he would argue the other way because some items don’t get covered by the press and the public doesn’t learn of them right away. Mr. Kramer stated he understood that, but he learns about issues by reading the minutes on the city’s web site and short of putting the meeting minutes in everyone’s mailbox he did not see what else could be done. He stated he did not see dragging on a process that is lengthy already to almost three months in order to get something done. Mr. Gray stated from his standpoint it depended on what direction they took. He stated currently council can choose as a group to have three readings in one night, which is the same as having one reading, and they have to do that by the super majority of six. He continued that if this group were to recommend making it a majority of those present, if it made sense that group of people who were elected could always just knock it out by suspending the rules and moving it on. He stated it would only become a hindrance if you are holding to that hard six number and you have people absent. Mr. Gray stated if it were changed to those present, then the council members can be accountable for moving something along if they want to. He stated if we would continue to have that hard number he could see the importance of two readings, but if they were given the ability to move it along by procedure, and they are willing to vote on it and do that by a majority of those present, then he might feel differently and he might want it to remain three readings because a super majority of those present could move it along because it is that important. Mr. Kramer stated by doing something like that he felt it was becoming more and more common already to do three readings in one night. Mr. Hartmann stated it has become a lot more common in the last four years. Mr. Hackworth stated to suspend the rules it takes six votes and he would be open to making that a majority of the number of people present because there are situations where you need three readings. Mr. Gray stated if they are allowed to put those on the consent agenda, it sounds like they will have a mechanism where things are unanimous; they would have the ability to vote on it once and have it done immediately. He stated once that is done, government would have been speeded up to an incredible pace. Mr. Hackworth stated they didn’t want to make it so easy this would not be passed. Mr. Gray stated if it is on the consent agenda it means everyone is okay with that and even a citizen can have it taken off the consent agenda. He stated he did not know how you could get much more protected than that, any citizen could require them to take it off and vote on it separately, and any council member can have it taken off the consent agenda. Mr. Gray stated as dynamic as our council is, when you have unanimous support it is probably something that the community is supportive of as well. Mr. Hartmann stated further the consent agenda is used sparingly, it is definitely written broader than it is used. Mr. Hartmann stated another issue is that council currently votes on each reading and that is not very common. He stated he did not know if the Board wanted to address that in a charter revision. Mr. Hartmann further stated council members can vote any way they want on the first reading, and if it is voted down in the first reading, it is gone and there is no support for that in the charter or the administrative code as to why that occurs. He stated that has been a custom that has gone on for a long time. Mrs. Yartin stated council has stated they will support something on a first reading to allow them time to do more research and investigation before the final reading. Mr. Kramer stated that was correct and many times when there is a change of vote during the readings. Mr. Hartmann stated in most cities you read it by title and go to the next one. Mr. Holstein inquired if there was discussion after each reading and Mr. Hartmann stated generally not, the discussion is usually at the final reading. Mr. Hackworth stated his perspective from being on council is that a number of issues come through and on the first reading you get a view of how everyone stood on it, and a lot of people would support it but there were other things they wanted to check out before the final vote. He stated the other part of that is that during discussion someone will bring something up that you have not thought about and that could change your vote or cause it to be tabled. Mr. Kramer stated basically you could have a reading, no discussion, no vote, and you could literally have an entire council meeting of nothing but the Clerk reading the titles. Mr. Gray stated from a political standpoint it is nice to know where people stand because that helps in a lot of ways and is a good indication of where people will be. Mr. Kramer stated he agreed, without having the vote on each reading it seemed rather pointless. Mr. Hartmann stated if that is the desire he would not mind putting it in the charter to codify it and have the charter conform to what we are actually doing. Mr. Hackworth stated he felt this section was an odd place for the reference to codifications, and Mr. Hartmann stated that would be part of the sub-sections he had listed earlier. Mr. Gray stated section 2.06 states that any member of council or the mayor may introduce any ordinance or resolution at a regular or special meeting which shall be in written form and shall contain a concise title. He stated this does not happen very often, but this implies that you can force a vote. If you have a motion and a second you can force discussion, for it tabled, or have some sort of action. He stated in the past everything had to have some sort of committee action and this implies that you can have a committee of one. Mr. Hartmann stated the way he reads that is that something can be introduced for a first reading, but it has to go to committee. Mr. Gray inquired where in the charter it said it must go to committee and Mr. Hartmann stated it doesn’t, but the administrative code requires all legislation go through a committee unless there is a councilmanic waiver, and if there is no waiver it has to go to a committee at some time. He stated the committee action must occur prior to the final reading. Mr. Gray stated the point was it could stay in committee without anything happening. Mr. Hackworth stated as he recalled the administrative code used to allow something to remain on the table for one year and that was changed to six months. Mr. Donathan inquired how the administrative code was done because it seems in what they are talking about relative to the charter you need an understanding of the administrative code and know how it is going to work out in the end. Mr. Hartmann stated that was true and the administrative code is passed pursuant to section 2.08 in the charter that says council shall pass rules that shall conform with the charter. Mr. Hackworth stated the administrative code is online on the city’s web site; it is chapter 220 of the codified ordinances. Mr. Hartmann stated matters must go from the committee to council whether the committee agrees with it or not, it would just go as not recommended if the committee does not concur. Mr. Hartmann stated further if you have that in the administrative code the Board may want to consider putting something in the charter that if something comes from the committee as not recommended it would require a super majority of council for approval or something of that nature. Mr. Donathan clarified that items sent to committee can be amended by the committee.

Section 2.07, Officers. Mr. Hartmann stated his only recommendation would be for clarification purposes that if the mayor is temporarily absent and the council president takes over running the meeting, they still retain their right to vote as a member of council. Mr. Kramer inquired if they would have the same veto power that the mayor does and Mr. Hartmann stated they would. Mr. Kramer stated then they could vote and also veto. Mr. Kramer stated his point was that just because the mayor was absent it did not mean the council president was acting mayor. He stated he agreed they should have the right to vote, but he did not feel they should have the veto power. Mr. Donathan stated in theory they could veto something before the mayor who liked the legislation could come back. Mr. Hartmann stated that was correct. Mr. Kramer inquired if Mr. Hartmann had any examples of how other cities handle the absence of the mayor for a single meeting where the council president takes over. Mr. Hartmann stated he did not. Mrs. Yartin stated if the mayor cannot attend a meeting and the council president presides over the meeting, that did not mean they were the acting mayor. Mr. Gray stated in past practice, they are not the acting mayor unless the mayor has told them they are. Mrs. Yartin stated past practice has been if the Mayor is appointing an acting mayor, it is done in writing providing the dates that person is appointed for and filed in her office. Mr. Donathan stated he saw this as a problem that could happen so it should be fixed. Mrs. Yartin stated the charter does state the acting mayor is appointed when the mayor is absent from the municipality. Mr. Hartmann stated that was correct, so basically the mayor would have to be out of the city. Mr. Hartmann summarized that, for example, should the mayor be absent because he is sick, then the president of council will take over the meeting, run it and still vote. He will not have the power to veto because the mayor is still in the city, so basically they run the meeting, that’s it. He stated, however, if the mayor is out of town then that is a different story because the person will be the acting mayor and the debate would then be if that person still retained their right as a council member to vote. Mr. Hartmann stated that seems to be a gray area in the charter. Mr. Gray stated his opinion is if the office has been empty, the council president has the right to choose not to take that seat. Mr. Hartmann stated he read it as they did not have a choice because the charter states they “shall” become the mayor. Mrs. Yartin stated the issue of a vacancy in office is addressed in Section 8.05. Mr. Kramer inquired if that section could be moved into another part because it seems repetitive. Mr. Hartmann stated he would look at that.

Section 2.08, Organization and Rules. There were no questions or recommendations.

Section 2.09. There were no questions or recommendations.

Article III, Mayor.

Section 3.01, Term. There were no questions or recommendations.

Section 3.02, Legislative Powers. Mr. Gray stated the only thing he thought of with regard to veto was if we wanted to give the mayor the ability for a line item veto. Mr. Hartmann stated a line item veto could be pretty powerful with appropriations.

Section 3.03, Judicial Powers. Mr. Kramer clarified that the Ohio Revised Code outlines how Mayor’s Courts can operate and hire magistrates.

Section 3.04, Other Duties. Mr. Hackworth questioned what the word liaison meant in this context. Mr. Hartmann stated the mayor should be the city official and the one voice that meets with all the different elected leaders. Mr. Gray stated he thought this was originally put in the charter because the people wanted it to be understood that the mayor would be the person doing that, not the city manager. Mr. Hartmann stated it could be changed to have the language “the mayor or his designee” so that would give the mayor the ability to have the city manager take care of some things.

Section 3.05, Compensation. Mr. Hartmann stated he would recommend adding the language to guard against that health care issue.

Article IV, Administrative Officials and Departments

Section 4.01, Oath of Office. There were no questions or recommendations.

Section 4.02, Conflict of Interest. There were no questions or recommendations.

Section 4.03, Appointment of Manager. Mr. Hartmann stated the mayor has a lot of power here in the sense that he gets to choose the city manager that gets put before council for a vote. Mr. Kramer questioned if there was any language that limited the amount of time a city manager’s contract could be and Mr. Hartmann stated that would be more specific than what you would see in a charter. Mr. Hartmann further stated the length of the appointment and contract would be things that would be negotiated. Mr. Hartmann stated he did not see anything that needed changed in this section.

Section 4.04, Manager’s Qualifications. Mr. Hartmann stated the residency requirement should probably be removed from this section as that was found unconstitutional by the Supreme Court.

Section 4.05, Mayor or Council relation to Manager. Mr. Hackworth stated he felt this was in a strange place in the charter and Mr. Hartmann stated he would also suggest it be put somewhere else. Mr. Kramer stated he felt it needed to be made very clear here that the City Manager does report to the Mayor. Mr. Hartmann stated it is his understanding that if the manager is being directed by four members of council to do something, and the mayor does not want it done, the puts the manager in a difficult position. Mr. Gray stated that if council passes an ordinance, the manager must uphold that ordinance. Mr. Gray further stated he felt the way the system was supposed to work is if a council member wanted the manager to do something, they could vote and tell them they had to do it. He stated where the problem was is that you do not want a council member telling the receptionist what to do, telling the people in the tax office what to do, that should go through the manager who will then decide what should be done. Mr. Donathan inquired if an evaluation was done on the city manager and if so, by whom. Mr. Gray stated when he was mayor he had always done a review of the manager. Mrs. Yartin stated Rules Committee has now developed a performance evaluation for the employees of council. She stated the manager would be reviewed by the mayor with the input of council. Mr. Hartmann stated, however, this section is mainly for the protection of city staff and as Mr. Gray had stated there is no reason any elected official should be directing the employees. Mr. Hackworth stated the elected officials should go through the city manager with the exception of the Municipal Clerk or employees of council. Mr. Hartmann stated this is strong language and is a great protection for your employees and has some teeth to it.

Section 4.06, Manager; Powers and Duties. Mr. Hartmann stated he would suggest separating this section out to create more clarity, but he had no suggestions or recommendations for change.

Section 4.07, Manager; Absence or Disability. Mr. Hartmann stated he felt something should be included in this section to address the issue of an interim manager should there be a termination or resignation so someone is automatically put into this position. He stated this would cover the situation of someone resigning effective immediately, or whatever. He stated currently there is no mechanism for someone to sign off on the day-to-day checks, the payroll, etc. Mr. Hackworth inquired if there should be a time limit on such an appointment and Mr. Hartmann stated perhaps it should include something like the mayor appoints an interim manager and council shall approve it within 30 days. Mr. Hackworth stated he felt it should be at least 60 days, and Mr. Gray stated he would not want to limit it to 60 days because when that 60 days is up he did not want the mayor to lose the ability to continue to recommend people. Mr. Gray stated perhaps it should state at 60 days council would need to approve additional time for that person or the mayor would have to appoint someone else. Mr. Hartmann stated what needed to be safeguarded was that there was always a manager and the appointment would always be by the mayor, and he would prepare some proposed language for the Board to review.

Section 4.08, Removal of the Manager. Mr. Hackworth stated he had requested everyone receive the section from the personnel manual that deals with disciplinary actions and that tied in with this section. Mr. Donathan stated it appeared from the personnel manual that there had to be a reason to terminate someone so if council did not like the way the manager did his job they couldn’t just terminate him. Mr. Hartmann stated generally in the actual contract itself is that they are “at will” and can be terminated “at will.” He stated depending on what the Board determined that could be cleaned up because it is certainly should be an “at will” position.

Section 4.09, Duties of the Municipal Clerk. Mr. Hackworth clarified the Municipal Clerk is not an employee of council, but is appointed by the manager, and Mr. Hartmann stated this is very unusual. Mr. Gray stated he felt it was nice for there to be a good working relationship between the manager and the clerk, and one advantage of this is that the clerk’s position could be filled very quickly in a very non-political nature, and he felt the clerk’s job needed to be a non-political position. Mr. Donathan clarified the clerk is usually a council position and Mr. Kramer stated it would then be appointed by council but directed by the manager. Mr. Hartmann stated that was correct.

Section 4.10, Duties of Director of Finance (Treasurer). Mr. Hackworth stated Mr. Schornack was going to attend the next meeting and he could provide information to the Board. Mr. Hackworth stated this position is appointed by council and he felt it should be left that way.

Section 4.11, Law Director. Mr. Hartmann stated some charters provide the law director be appointed by the manager and others provide the appointment by council. He stated he had no recommendations on this and it would be a policy decision.

Section 4.12, Engineer. Mr. Hackworth stated currently the engineer is appointed by council and he felt that worked well. Mr. Hartmann stated it is not commonly seen that the engineer is appointed by council, but he did not see a problem with it.

Mr. Hackworth stated the next section might take some discussion so this seemed to be a good place to stop this evening.

5. CHAIRMAN. Mr. Hackworth stated at the next meeting the Board would complete the review of Article IV. He further stated Mr. Schornack, the Finance Director, would attend the next meeting and he would provide a memo with his concerns for the Board. Mr. Hackworth stated also if Mr. Hartmann could provide the Board with a red-lined version that organized what the Board had discussed to date. Mr. Hartmann stated he would have that done to include in their packet.

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

7. ADJOURNMENT. There being nothing further, Mr. Gray moved to adjourn; Mr. Donathan seconded the motion. Mrs. Chapman, Mr. Donathan, Mr. Hackworth, Mr. Holstine, Mr. Gray, Mr. Kramer, and Mr. McKinney voted “Aye.” Motion carried, 7-0. The Charter Review Board adjourned at 9:04 P.M., March 4, 2010.

RESPECTFULLY SUBMITTED:

_______________________________

Lynda D. Yartin, Municipal Clerk