MINUTES OF MEETING

2008 CHARTER REVIEW COMMISSION

APRIL 24, 2008

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Members Present:  Bartolozzi, Thompson, Lazzaro, Snyder, O’Donnell, Rodgers, Urban Manoloff

 

Absent:  McGovern

 

Presence Noted:     Andrew Bemer, Law Director

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Mrs. Bartolozzi opened the April 24, 2008 meeting of the 2008 Charter Review Commission at 7:00 p.m. in the Council Chambers of City Hall and said that since there were not enough people in attendance at last week’s meeting who were also present at the April 10, 2008 meeting to approve the minutes, they will approve them tonight.  She asked if anyone has any additions, corrections, or comments on the Minutes of the April 10, 2008 Charter Review Commission meeting.

 

MOTION:  Moved by Mr. O’Donnell, seconded by Mr. Urban, to approve the Minutes of the April 10, 2008 Charter Review Commission meeting.

 

5 Ayes – 0 Nays – 3 Abstain (Bartolozzi, Manoloff, Urban)      

Passed

 

Mrs. Bartolozzi asked if anyone has any additions, corrections, or comments on the Minutes of the April 17, 2008 Charter Review Commission meeting.

 

Mr. Thompson noted one correction.  The action taken on Master List item number 1, should reflect a vote of 1 Aye to 5 Nays.  The outcome of the vote does not change and the names are correct, but the number of Nays should be changed to 5.

 

MOTION:  Moved by Mr. O’Donnell, seconded by Mr. Manoloff, to approve the minutes as amended.

 

5 Ayes – 3 Abstain (Urban, Snyder, Rodgers)

Passed

 

Mr. Thompson said a question was brought up regarding the number of Ayes and Nays required for an issue to go to ballot.  The question is whether they want to require a majority of the quorum present, or a majority of the entire panel of 9 members.  He said his concern is that if there is low attendance at a meeting, a vote of just 3 ayes could place something on the ballot or not.  Mr. Bemer said if they strictly follow Roberts Rules, they will require a majority of the quorum, which means 3 ayes could send an item to the ballot.  He said it is up to this Commission to either accept that or require a majority vote of the entire panel to have items go to ballot.

 

Mr. Bemer said the issue came up because they are getting 5 and 6 members present at these meetings.  In 2002, the Commission had near perfect attendance for their discussions of Master List items, with the exception of 2 meetings where there were 7 members and 8 members.  He said the Commission may want to re-examine whether Thursday is the best night to meet.

 

Mr. Thompson said he thinks Thursday seems to be working well and said he thinks they should require a majority of the quorum to move items to the ballot.  Mr. O’Donnell said he would vote they go with Roberts Rules and require a majority of the quorum also.  The Commission decided that an action will require a majority of the quorum and if it is a close vote they can table the item and bring it back the next week when more members will be present.

 

Mr. Thompson asked if they will establish time limits for the items on the list.  Mr. Urban said that Roberts Rules say that the discussion can be closed at any time during the discussion with a Motion.  It was decided there will be no pre-set time limit for discussions.

 

MASTER LIST ITEMS

 

The Commission proceeded to discuss Master List items no. 3 and no. 7 simultaneously.

 

Master List Item No. 3 and No. 7 – Discussing Qualifications of Mayor and Council regarding Military Service.   Mr. Bemer discussed his research regarding military service.  He said there is a State statute and a Federal statutory scheme that address the absence of public employees or anyone holding a position of public service for the purpose of military service and their reinstatement.  The Federal scheme provides that failure to reinstate someone who was in the military service within 60 days is an act of discrimination.  He said the State of Ohio has adopted that section in O.R.C. 124.29, which says anyone who, at the time of holding an office or position in the public service, enters the Uniform Services is entitled to reinstatement in accordance with the Uniform Services Employment and Re-Employment Act of 1994.  He said it seems to be very clear policy that you simply cannot terminate someone because they are in military service.  With that policy in mind, he said it seems like this issue of giving the Mayor just 1 month off for military service is discriminatory.  He said they may want to consider amending that to reflect that a leave and re-employment shall be granted pursuant to the applicable State and Federal laws.  Mr. Snyder suggested they just strike the sentence because the State controls it anyway.  Mr. O’Donnell said he would be in agreement with that.

 

Mr. Manoloff asked about the meaning of the sentence saying that a member of Council shall not hold any other compensated public office or public employment of the City of Rocky River.  He asked whether it means a compensated public office of the City, public employment of the City, or compensated public office anywhere.  He wonders if the reference “of the City” is meant to apply to both public employment and compensated public office because, he said, the two could be different.  He said other Charters make it very clear that they are talking about just with the City.  Mr. O’Donnell said he reads it as just the City or the Board of Education.  Mr. Thompson said that is how the Commission interpreted it the first time they reviewed the Section.

 

Mrs. Bartolozzi said it is different for the Mayor and asked if they would want to specify that the Mayor cannot serve other public employment.  Mr. Bemer said the Mayor can be a county or state employee and still be Mayor of the City of Rocky River.  Mr. O’Donnell said it surprised him that a person can work for the County and also be the Mayor of Rocky River.

 

Regarding item number 3, the issue of Military Service and the Mayor, Mr. O’Donnell moved to strike the language with regard to Military Service in Article II, Section 2.  Mrs. Bartolozzi seconded.

 

8 Ayes – 0 Nays

PASSED TO THE BALLOT LIST

 

Mr. Manoloff moved to strike the language with regard to Military Service for Council Members in Article III, Section 3.  Mr. Urban seconded.

 

8 Ayes – 0 Nays

PASSED TO THE BALLOT LIST

 

The Commission then discussed the residency requirement for the Mayor and for Council.  It is currently required that they be a resident for 1 year.  The issue from earlier discussion was whether they should make the residency requirement longer.  Mrs. Bartolozzi said that it was determined that anyone who wanted to run for Mayor or Council who had not been a resident for more than 1 year, would most likely have difficulty being voted in.  The Commission asked for any arguments in favor of a longer residency requirement.  Mr. Manoloff said that Fairview Park and North Olmsted have 2 year residency requirements, Lakewood has a 1 year residency requirement, and Westlake has an 18 month residency requirement.  He did not know how long the terms for the Mayors of those Cities are.  Mrs. Bartolozzi said Westlake is a much larger City and they need more time to make themselves known.  In order to be elected in our community, she said a candidate will have to be known.  She said she feels that having the 1 year residency requirement in Rocky River does not do any harm to the City.  Mr. Bemer said he thinks it is necessary to be a resident at the time a candidate files a petition, which adds a few more months to a candidate’s residency.  In that case, he said residency approaches 18 months in practical application.

 

Mr. Snyder moved to remove the residency requirement for the Mayor in item number 3 from the Master List of Items for further discussion and not pass such item to the Ballot list.  Mr. Urban seconded.

 

8 Ayes – 0 Nays

Removed from Master List – Item NOT PASSED to the Ballot List

 

Mr. Manoloff moved to remove the residency requirement for members of Council in item number 7 from the Master List of Items for further discussion and not pass such item to the Ballot list.  Mr. Urban seconded.

 

8 Ayes – 0 Nays

Removed from Master List – Item NOT PASSED to the Ballot List

 

 

Master List Item No. 8.  Procedure for posting of special meetings, Article II, Section 10.

 

Mr. Rodgers said that the issue for this item is whether or not posting the notice in the lobby of City Hall as required in the Charter is up to today’s standards of notice.  The Commission discussed the fact that notice is published on the City’s website and decided that method, along with the usual posting in the lobby, is sufficient.  They do not find it necessary to put this issue on the ballot.

 

Mr. O’Donnell moved to remove the discussion of the posting of special meetings from the Master List of items for further discussion and not pass such item to the Ballot List.  Mrs. Bartolozzi seconded.

 

8 Ayes – 0 Nays

Removed from Master List – Item NOT PASSED to the Ballot List

 

Mr. Manoloff said that since he was not here for the initial discussion of the posting of special meetings, he would like to have the opportunity to discuss it now.  With regard to Article X, Section 6, on open meetings, he said he is curious to know whether a discussion was held to consider changing the reasons Council can go into Executive Session.  He said the language reflects the Ohio Revised Code, but one thing they discussed at length during the Charter Review Commission in the City of Lakewood, was to change the particular provision regarding conferences with an attorney for the public body concerning disputes involving the public body that are the subject of pending or imminent Court action.  They proposed that the Charter should provide that Executive Sessions of Council should be permitted for communications with legal council constituting attorney client privileged communications.  He said that under the Public Records Act, attorney client communications are shielded from public disclosure, which makes sense.  However, when it comes to meetings, a client cannot talk to his attorney.  They can go back and forth in writing and those written communications are protected from public disclosure, but they cannot talk in Executive Session unless it pertains to a pending or imminent Court action.  He feels this does not make any sense and there is a disconnect between the Public Records Act and the open meeting law.  He said that Council should be able to go into executive session and talk to council’s attorney and not just put it in writing.  He said that ultimately that recommendation was not approved by Lakewood City Council and it did not make its way into the second amended Charter of the City of Lakewood.

 

The Commission discussed this issue briefly, and decided that this would not be added to the Master List of items for further discussion.

 

Master List Item No. 9.  Notification by Certified Mail, Article III, Section 13(3).

 

Mr. Lazzaro said this item has to do with the cost of certified mail and with regard to Certified Mail that is undelivered.  Mr. Urban said the requirement is that there has to be notification to the property owners.  The City sends the notice via Certified Mail but some are being returned unclaimed.  He said they discussed using a procedure the U.S. Postal Service offers, which is regular mail with verification.  In other words, regular mail would be prepared and the Clerk of Council would take the proof of mailing certificate to the post office in exchanged for a stamped receipt that proves she mailed the article on that date.  That would be a way to prove that she mailed it to a property owner on a certain date and would also eliminate the cost of Certified Mail.

 

Mr. Rodgers asked Mr. Bemer how often there is a rezoning issue.  Mr. Bemer said he recalls that they have had 2 rezoning issues in the last 2 years.  Mrs. Bartolozzi said that when a condominium is involved every resident in the complex must be notified, which encompasses a lot of people.  She suggested the Clerk of Council be given the option to notify residents one of two ways, whichever is more cost effective. 

 

Mr. O’Donnell said he feels it is not enough notice to send something by regular mail even with the verification.  He said that if there is a rezoning, he thinks it is the City’s responsibility to make sure that a resident is aware of it.  The question is whether the notice has to be received by the resident.  Mr. O’Donnell said the whole point of Certified Mail is to prove that someone received it.  If it comes back to the City as undelivered and they simply drop it in regular mail, he thinks that is a waste of money because there is no proof that the person actually received it.  He feels there is no point in sending a notice Certified Mail if there is no concern about whether it is received.  Mr. Snyder said that Certified Mail is verification that they made an effort to deliver it.  Mr. Rodgers said he agrees with Mr. Snyder that sending something Certified Mail is proof that you have made the effort and he is not sure that the City has responsibility beyond that.  Mrs. Bartolozzi asked what the law says is the minimum they have to do with regard to notifying.  Mr. Bemer said his opinion is that the Charter should provide for receipt or delivery acknowledged because that is the point of Certified Mail.  There would be no reason for Certified Mail if you didn’t specifically want proof of receipt.  He said the whole point is due process and the burden is on the City to establish that it provided due process to contiguous property owners.  Mr. O’Donnell said he agrees with Mr. Bemer and when a property is being rezoned the City owes the contiguous owners due process.  He feels that sending the notice by regular mail would not be due process.  He said Certified Mail would be an example of due process.  Mr. Snyder asked if the Charter should include anything more than what is already there.  It was determined that they should table this item for further discussion to give Mr. Bemer an opportunity to look into this further.

 

Mr. Thompson moved to table the discussion of Notification by Certified Mail, Article III, Section 13(3) for further investigation by Law Director Bemer.  Mrs. Bartolozzi seconded.

8 Ayes – 0 Nays

Tabled for more information from Law Director Bemer

 

Master List Item No. 10.  The suggestion of making the Department of Recreation and the Department of Senior Services Charter Departments, Article IV.

 

Mr. Lazzaro said that from the discussion they had previously, he feels it would be difficult to remove the Department of Recreation and the Department of Senior Services if there was a financial crunch.

 

Mr. Urban moved to remove the discussion of making the Department of Recreation and the Department of Senior Services Charter Departments, Article IV, from the Master List of items for further discussion and not pass such item to the ballot list.  Mr. O’Donnell seconded.

8 Ayes – 0 Nays

Removed from Master List – Item NOT PASSED to the Ballot List

 

Master List Item No. 12.  Qualifications of the Law Director, Article IV, Section 2.

 

Mr. Urban said their previous discussion was whether or not the Charter was too limiting with regard to who could be Law Director.  Mr. Snyder said that right now, he would be eligible to run for the Supreme Court of the United States but he cannot be the Law Director in the City of Rocky River.  Mr. Urban said he has been a practicing attorney for over 30 years and according to the current qualifications, he would not be eligible to run for Law Director.  The amendment in 2002 added the qualification of 3 years prior municipal attorney experience for the Law Director.  Mr. Snyder suggested they add the phrase “; or a licensed attorney in the State of Ohio with 5 years of general experience” to the end of the current qualification.  Mr. O’Donnell said that this addition would help make more people qualified for the position of Law Director.  Mrs. Bartolozzi said she feels that more choice is better and to open it up to more candidates would be a good thing.   Mr. Bemer said he feels that the qualifications as stated are overly broad and vague.  As he said in earlier discussions, it is possible to have someone with 30 years experience in general law who has collective bargaining, real estate transactions, employee relations and land use experience, but if they do not have municipal attorney experience, that person would not be qualified for the position of Law Director.  However, someone who has been out of law school for just 3 years and worked as a prosecutor would be qualified.  He feels there should be a legitimate and valid qualifier included in the Charter.

 

It was determined that since a person can run for Judge with 5 years as a licensed attorney, a person should be able to run for Law Director in the City of Rocky River with the same experience.  Mr. Bemer suggested that the qualification of being duly admitted to practice law for 5 years should be added to the beginning of the list of qualifications in Article IV, Section 2.

 

Mrs. Bartolozzi moved to clarify and improve the language of Article IV, Section 2 with regard to the qualifications of the Law Director to reflect that a person may run for such position with 5 years of experience as a licensed practicing attorney.  Mr. Urban seconded.

8 Ayes – 0 Nays

PASSED TO THE BALLOT LIST

 

Master List Item No. 13.  Qualifications of the Finance Director, Article IV, Section 3.

 

Mr. O’Donnell said Director of Finance, Michael Thomas, mentioned that he didn’t think the current qualifications are a problem.  He said the fact that it states the Finance Director should have a Bachelor’s Degree with a major in Finance or Accounting is not a problem because most people who are in his position have those.  Mr. Snyder said that these qualifications are not limiting because the person who is Finance Director will have one of those two majors.

 

Mr. Rodgers moved to remove the qualifications of the Finance Director from the Master List of items for further discussion and not pass such item to the Ballot List.  Mrs. Bartolozzi seconded.

 

8 Ayes – 0 Nays

Removed from Master List – Item NOT PASSED to the Ballot List

 

Master List Item No. 14.  Discussion of adding language specifying a “passing score” and procedures if there are not 3 qualified candidates in Article V, Section 2A.

 

Mr. Urban moved to table the discussion of adding language specifying a “passing score” and procedures if there are not 3 qualified candidates in Article V, Section 2A in order to give the Mayor or anyone interested in Article V - Civil Service Commission the opportunity to be present during this discussion.  Mr. O’Donnell seconded.

8 Ayes – 0 Nays

Tabled for notice to those interested in discussing this item

 

Master List Item No. 15.  Discussion of adding the Civic Center to the list of items that are excluded from the Parks and Recreation Commission and include it under the duties of City Council in Article VI, Section 4(c)(3).

 

Mrs. Bartolozzi said that in their previous discussions, it was determined that it makes sense to specify that the Civic Center and indoor pool be added to the list of things excluded from the Parks and Recreation Commission and include them under the duties of City Council.  Mr. Lazzaro said that it states that at anytime by Ordinance, City Council can place it under the Parks and Recreation Commission.  It was not clear whether the indoor pool is included in the Civic Center or not.  Mr. Thompson said that if they specify Civic Center it would include everything inside it, including the indoor pool. 

 

Mr. O’Donnell moved to add the Civic Center to the list of items that are excluded from the Parks and Recreation Commission and include it under the duties of City Council in Article VI, Section 4(c)(3).  Mr. Rodgers seconded.

 

8 Ayes – 0 Nays

PASSED TO THE BALLOT LIST

 

Master List Item No. 16.  To discuss the budget timeline in Article VI, Section 4(c)(3) for Parks and Recreation Committee.

 

Mr. O’Donnell said that this Section of the Charter calls for the budget to be reviewed on the first day of June.  It was clear from the Mayor and from Mr. Patterson at their earlier discussion that the way the fiscal budget works, it would make more sense to make the date the 1st day of December of each year.  Mrs. Bartolozzi said she does not think they need to include a specific date, but they should say the review and recommendation should be in line with the budget process. 

 

Mr. Urban moved to remove the first day of June and replace it with the appropriate language in Article VI, Section 4(c)(3).  Mr. O’Donnell seconded.

 

8 Ayes – 0 Nays

PASSED TO THE BALLOT LIST

 

Master List Item No. 17.  Discussion of changing the name of the Design and Construction Board of Review to the Architectural Review Board in Article VI, Section 5.

 

Mr. Thompson said he recalls discussing the fact that if they were to do this, it would cause a ripple effect because they would have to change every document they have within the City that mentions this Board.  Mr. Snyder said that Mr. Milloy had some concerns about liability because of the word construction in their name.  It was determined there is not a liability issue with leaving the word “Construction” in the name of the Board.

 

Mr. Urban moved to remove the Discussion of changing the name of the Design and Construction Board of Review to the Architectural Review Board in Article VI, Section 5 from the Master List of items for further discussion and not pass such item to the Ballot List.  Mr. Snyder seconded.

8 Ayes – 0 Nays

Removed from Master List – Item NOT PASSED to the Ballot List

 

Master List Item No. 18.      Discussion regarding increasing the size of the Design and Construction Board of Review to 5 regular members in Article VI, Section 5.

 

Mrs. Bartolozzi said the Design and Construction Board of Review has some issues because they only have 3 members and the Board of Zoning and Building Appeals and Planning Commission both have 5 members.  Mr. Rodgers recalled that Mr. Milloy suggested they change it to 5 members with 2 alternates.  The Commission asked the Secretary, Kate Straub, to confirm that the Design and Construction Board of Review has 2 alternates. Ms. Straub responded that they currently only have 1 alternate.  Mr. Rodgers said that the Design Board is the only one that clearly defines that there are supposed to be 2 alternates.  Mrs. Bartolozzi said that in order to act on any matter, the Design Board must have at least 2 sitting members present at a meeting. 

 

It was determined that 3 regular members of the Design and Construction Board of Review seems to be working well and is sufficient.

 

Mr. Snyder moved to remove the discussion regarding increasing the size of the Design and Construction Board of Review to 5 regular members in Article VI, Section 5 from the Master List and not pass such item to the Ballot List.

 

8 Ayes – 0 Nays

Removed from Master List – Item NOT PASSED to the Ballot List

 

Master List Item No. 19.  Discussion to strike the word “construction” from of Article VI, Section 5(b).

 

It was determined in their earlier discussion that there would be no liability issue if they leave the word “construction” in this section.

 

Mr. Rodgers moved to remove the discussion to strike the word “construction” from Article VI, Section 5(b) from the Master List and not pass such item to the Ballot List.  Mr. Urban seconded.

 

8 Ayes – 0 Nays

Removed from Master List – Item NOT PASSED to the Ballot List

 

Master List Item No. 20.  Add language consistent with the State in Article VII, Section 3. 

 

Mr. Urban said at an earlier meeting, the Finance Director asked for the language to be consistent with the State because he is restricted on the City’s investments based on our Charter.

 

Mrs. Bartolozzi moved to change the language in Article VII, Section 3 to conform the investment of City funds to State law. Mr. O’Donnell seconded, and said he recalls that Finance Director Thomas said we loose about 1 percentage point and on $10 or $15 Million, that is a significant amount of money.

 

8 Ayes – 0 Nays

PASSED TO THE BALLOT LIST

 

Master List Item No. 21.  Increase the expenditure limit from $15,000 to be consistent with the State in Article VII, Section 4.

 

Mrs. Bartolozzi said that this is the item that would enable Safety Service Director, Jim Linden to go out on the open market to get things.  The State’s current expenditure limit is set at $25,000 and discussion was had regarding revising our expenditure limit to be consistent with the State.  Mr. O’Donnell said that he feels tying it to the State makes a lot of sense because then they would not be amending the Charter every time the State changes their expenditure limit.  Mrs. Bartolozzi said that as a result of the last Charter Review, it was recommended that the amount be amended from $10,000 to $15,000 to be consistent with the State.  About 1 year after that amendment, the State raised its expenditure limit to $25,000.

 

Mr. O’Donnell said the State may provide for cities much larger and his concern is that we would increase ours along with the State which may be a big expenditure for us.  Mr. Rodgers said the Charter will be reviewed in 6 years again, so if they increase the expenditures to $25,000 now, that amount could be revised at the next Charter review.  Mrs. Bartolozzi said there are other controls on the expenditures, as well, so if the money is not in the budget, the expenditure would not be made.  Tying it to the State would give the Safety Service Director the option to go out on the open market rather than take it to bid, which can take a while.  It would give the Safety Service Director more leeway in getting the equipment and maintenance items he needs sooner.

 

Mr. Bemer said the whole point is not the integrity of the bidding process, but it is the time element involved in the practical application.  Mr. Urban said there is currently a Board of Control and every expenditure over $500 must go through that Board.   Mr. O’Donnell said that this does not mean that the Safety Service Director can write a check for any amount he wants.  He said it has to do with the threshold of bids.  Mrs. Bartolozzi said that even if that amount is amended to be consistent with the State, City Council is still there to put some controls on it.

 

Mr. Snyder moved that the expenditure limit be amended to be consistent with the State’s expenditure limit in Article VII, Section 4.  Mr. O’Donnell seconded.

 

7 Ayes – 1 Nay (Rodgers)

PASSED TO THE BALLOT LIST

 

Master List Item Nos. 22 through 24.

 

Mr. Urban moved to table Master List Items 22 through 24.  Mr. O’Donnell seconded.

 

8 Ayes – 0 Nays

Items 22 through 24 tabled until the next meeting.

 

The Commission decided that the Thursday, May 1, 2008 meeting will be cancelled because 3 members are not able to be present.  They will meet again on Thursday, May 8, 2008.

 

It was determined that, including those items that were tabled this evening, the following items will be discussed at the May 8, 2008 meeting.

 

Master List Item No. 9.  Notification by Certified Mail, Article III, Section 13(3).

 

Master List Item No. 14.  Discussion of adding language specifying a “passing score” and procedures if there are not 3 qualified candidates in Article V, Section 2A.

 

Master List Item No. 22.  The discussion of adding the County Board of Elections’ function with regard to Recall in Article VIII, Section 2.

 

Master List Item No. 23.  Discussion of a revision to specify the date of primary elections to be no later than the second Tuesday of September in Article IX, Section 2.

 

Master List Item No. 24.  Changing the due date of a candidate’s declaration of candidacy from 60 days before the primary election to 75 days before the primary election and the clarification of “same political party” in Article IX, Section 3 and Section 5.

 

There being no further business, the meeting was adjourned at 9:00 p.m.

 

 

                                                                                                                                               

Date                                                     Linda Bartolozzi, Co-Chairperson

                                                            Greg Thompson, Co-Chairperson

 

 

 

 

                                                                                                                                               

                                                            Kate Straub, Secretary