How to hire a law director
Opposing sides face off at voter forum
By Kevin Kelley
Westlake
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?"

Proponents 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.

Changing the 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 said.

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.

Corpus said 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.

(In September, 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.

Clough 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.

Having the 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.

Killeen 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.

"Simple logic 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."

Killeen also 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.

When asked 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.

When asked what would prevent an elected law director from feeding legal work to his private law firm, O'Malley answered "the power of the people."

"They would throw him out," he added.

But Clough 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."

Kilbane said 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.

O'Malley added: "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 that offer."

Kilbane also 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.

Clough said 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."

Westlake High 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.