“The election of Mayor and Vice Mayor at the special City Council meeting of August14,2017 was not proper.”
– Loveland Solicitor Joe Braun
Loveland, Ohio – Loveland Magazine obtained a legal opinion written by City Solicitor Joe Braun today that throws a monkey wrench in the selection of Angie Settell as Loveland’s new mayor and Pam Gross as vice-mayor.
In the opinion, Braun said that the special meeting called by then Mayor Mark Fitzgerald for last Monday was not a legal meeting and voids the business conducted at the meeting.
The Clerk of Council had failed to post a notice of the special meeting 12 hours beforehand as required by Loveland law. The notice was put on the bulletin board outside City Hall four hours short of the 12 hours required.
Braun said, “The day after the August 14, 2017, special City Council meeting, I was advised by Councilwoman Kathy Bailey that a resident contacted her and alleged that the City had failed to properly advertise the special City Council meeting. Specifically, the resident indicated that the Clerk of Council had failed to comply with Section 109.04 of the Loveland code of Ordinances.” Braun continued, “I cannot ignore the fact that the posting requirements of Section 109.04 of the Loveland Code of Ordinances were not adhered to by the Clerk of Council. As such, any action taken by Loveland City Council at its August 14, 2017, special meeting should be deemed without legal effect.”
Fitzgerald stepped down as Mayor at the meeting so that he could still cast votes on who would be the next mayor and vice-mayor. The votes were 4-3 in favor of Settell and Gross. After the meeting was over, Fitzgerald distributed a letter that he was resigning from Council.
Braun’s legal opinion does nothing to affect the decision by Fitzgerald to resign his seat on Council which he submitted to meet a deadline of the Hamilton County Board of Elections who gave him a midnight deadline to either resign or face a recall election in November.
Council remains a six member body. Council must begin again at a legal meeting nominating one of their own to be mayor and vice-mayor. A decision not made easy because Council is evenly divided into two camps of three members each. Braun said that Settell remains as vice-mayor is now also the presiding officer of meetings and might remain as such until November when voters fill the four open seats on the fall ballot.
A six member Council after the November election might still deadlock on a selection of mayor, vice-mayor, and someone to fill Fitzgerald’s remaining two year-term. Brauns opinion did not address that possible scenario.
Braun’s opinion at least temporarily strips Settell of her Mayoral duties and her ability to unilaterally appoint Fitzgerald’s replacement if the 3-3 divided council cannot agree on who it should be. Before Braun’s opinion, Settell had to wait for 30-days to make an appointment, but as of today, he said the decision must wait until after the November election.
Braun reached the following conclusions:
(1) I cannot ignore the fact that the posting requirements of Section 109.04 of the Loveland Code of Ordinances were not adhered to by the Clerk of Council. As such, any action taken by Loveland City Council at its August 14, 2017, special meeting should be deemed without legal effect.
(2) The election of Mayor and Vice Mayor at the special City Council meeting of August 14, 2017 was not proper. Ms.Settel should maintain her role as the Vice Mayor of Loveland and serve as the presiding officer of all City Council Meetings given the vacancy left by the resignation of the Mayor as a member of City Council.
(3) The decision to fill the empty City Council seat left by the resignation of Mark Fitzgerald vests with the remaining six members of this City Council Should those remaining six members not be able to reach a majority consensus before a new City Council is elected and seated in November 2017, then that City Council shall fill the vacancy created by the resignation of Mark Fitzgerald under Section 2.03 of the Loveland Charter.
(4) The position of Mayor of Loveland shall remain vacant until a new election takes place by the remaining members of City Council, or until an organizational meeting is held and a new Mayor is elected by the newly elected City Council in November pursuant to Section 2.05 of the Loveland Code of Ordinances.
(5) Because the resignation of Mark Fitzgerald as a member of City Council took place after the special meeting, and not during it, the resignation is still effective as of 11:59 p.m, on August 14, 2017.
Neither Settell or Gross replied to a request for comment before publication deadline.
Here you can read the full text of the Solicitor’s Opinion: LOVELAND SPECIAL MEETING LEGAL OPINION-1
This story was up-dated Friday, August 19 at 1:50 PM
Read background about the illegal meeting: