to hire a law director
Opposing sides face off at voter
By Kevin Kelley
Published Oct. 20, 2004
"To elect or
not to elect, this is the question. Whether 'tis nobler in the mind
to suffer the slings and arrows of outrageous fortune, or to take
arms against a sea of troubles and opposing end them?"
and opponents of two proposed charter amendments that would make
the position of law director elected by voters rather than appointed
by the mayor met Monday night to debate their positions.
law director post from an appointed to elected position would threaten
the effective and efficient management of Westlake that has made
the suburb the envy of most of Northeast Ohio, Mayor Dennis Clough
But Carol Corpus,
a proponent of electing the law director, said the process would
bring needed accountability to the post.
The two spoke
during a forum sponsored by the League of Women Voters at Porter
Public Library. Westlake voters will decide the fate of two linked
proposed charter amendments -- Issues 106 and 107 -- which would
change the law director position from an appointed to elected office.
Joining the mayor at the forum in support of keeping the law director
appointed were Council President Michael Killeen and Ward 1 Councilman
Edward Hack. Speaking with Corpus in favor of the proposed amendments
were I'm A V.O.T.E.R. member Joseph Kilbane and Westlake School
Board member Joseph O'Malley.
current Law Director David Harbarger, who was appointed in 1998,
has given the city poor legal advice that ended up costing the city
money. And Kilbane criticized the outsourcing of legal work to Harbarger's
private law firm, Roetzel and Andress, in the city's civil case
with businessman Charles Shimola. While Mayor Clough has described
the Shimola case as a unique and extremely complex property maintenance
case that spiraled out of control over the decade it was in litigation,
Kilbane said it was not complicated at all and should not have cost
the city as much as it did in legal fees.
an arbitration panel ruled that the city had to pay $560,000 in
damages Shimola, who had sought $48 million in damages before the
arbitration panel. In 1998, a common pleas jury found in favor of
Shimola and awarded him $2.5 million. But the judge threw out the
award amount, calling it excessive. From 1999 through July of this
year, Westlake paid $830,775 in legal fees and expenses to Roetzel
and Andress in connection with the Shimola case.)
"We need an
elected law director so that he or she would be accountable to the
taxpayers of Westlake and not be dependent on the pleasure of the
mayor who appoints him or her," Corpus said.
effective management of the city is the mayor's responsibility,
and successful management is best achieved by filling department
posts with qualified professionals not limited by residency or political
electability. After the mayor and other administration officials
have reached a consensus on who to hire, city council votes on the
appointment after interviewing the applicant. Because the law director
is required to represent both the administration and council, Clough
said, it is imperative that council maintains an active role in
that selection process.
law director appointed by the mayor and confirmed by council "assures
that only professionally qualified candidates are chosen and then
held accountable to the administration and your elected council
representatives," Clough said.
the argument that an elected law director would save the city money
was ridiculous. The city's decision to hire a litigation attorney
from Harbarger's law firm for the Shimola case was unanimously approved
by council after reduced rates were agreed to, he said. In contrast,
an elected law director could make decisions about hiring outside
counsel unilaterally from the mayor and council.
indicates two politicians will be more expensive than one, "Killeen
said. "Arguing an elected law director will save money can only
be based on wild conjecture, not the historical facts."
said the majority of persons circulating the amendment petitions
were Democrats, thus suggesting the ballot issue was a partisan
assault on Westlake's elected Republican government.
during the question and answer period why the only attorney interviewed
by the city for the Shimola case was from Harbarger's law firm instead
of another qualified local law firm, Clough said the city expected
to take a recommendation from its law director.
"If you don't
have trust in the individual that's serving as law director, then
I guess you would go lawyer shopping," Clough said. But the mayor
said the city did have faith and trust in the law director's recommendation.
In addition, he said the attorney hired from Roetzel and Andress
-- George Rooney -- was a qualified litigation specialist and needed
to work closely with Harbarger because all administration department
heads had been subpoenaed in the case.
what would prevent an elected law director from feeding legal work
to his private law firm, O'Malley answered "the power of the people."
throw him out," he added.
noted there is no provision in the proposed amendments that would
prevent an elected law director from hiring his own law firm for
legal work. The claim that having an elected law director could
save the city money is false, Clough said.
"With my accounting
and business background I can assure you that this is not the case,"
Clough said. "In fact, the opposite is true. Hundreds of thousands
of dollars have been saved by not having to go lawyer shopping."
backers of the proposed amendments do not presently have a candidate
lined up to run for law director should the amendments pass.
League of Women
Voters moderator Janice Patterson overruled several audience questions
having to do with specifics of the Shimola case -- including a statement
by Charles Shimola himself -- saying they were not pertinent to
the ballot issue. But Kilbane told the audience the city had an
opportunity to settle with Shimola for as little at $40,000 in 1997
(prior to Harbarger's appointment as law director) but didn't.
"Yes, we could have settled this case. If we had an elected law
director he would have stood up and told the community we can settle
this case for $40,000. Instead city council and the mayor rejected
said the city lost the Shimola case because city officials acted
in bad faith and are therefore liable for damages and fees incurred
by the city. "Will an appointed law director or an elected law director
seek restitution from people who acted in bad faith and caused us
all this damage?" he asked.
if the case could have been settled it would have been. And Killeen
said the statements about a potential settlement in 1997 were "playing
fast and loose with the facts. The $40,000 is a nice idea; it wasn't
the way it happened."
School's television station, WHBS-TV, videotaped the forum and will
broadcast it next week on its cable channel. Check WHBS's
schedule for time and date.