MINUTES OF THE REGULAR MEETING OF THE COUNCIL OF THE CITY OF AVON, OHIO, HELD TUESDAY, MAY 26, 1998 IN THE COUNCIL CHAMBERS OF THE MUNICIPAL BUILDING AT 7:30 P.M.
The Chairman called the meeting to order.
PRESENT: Council Members: Council-at-Large - Shaun Brady; 3rd Ward - Shirley Doss; Council-at-Large - Ted Graczyk; 1st Ward - Niels Jensen; 2nd Ward - David Kaiser; 4th Ward - Jack Kilroy; Council-at-Large - Ed Krystowski; Mayor - James A. Smith; Finance Director - Robert Hamilton; Safety Director - Robert Jackson; Service Director - Gerald Plas; Law Director - Daniel Stringer; Clerk of Council - Patricia Vierkorn
MINUTES OF THE REGULAR MEETING OF COUNCIL - MONDAY, MAY 11, 1998
Mr. Kilroy offered two corrections to the minutes: On page 8 under the audience comments, the last paragraph for Mr. Ken Demsey identified him as Dakota Sioux, but it should be Lakota. In Item #3 under comments by Mr. Kilroy, the fifth paragraph from the bottom it said if you review the rules and it should be if you view the rules instead of review.
A motion was made by Mr. Graczyk and seconded by Mrs. Doss to amend the minutes as requested by Mr. Kilroy. The vote was: Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Kilroy, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
A motion was made by Mr. Graczyk and seconded by Mr. Jensen to accept the minutes as amended. The vote was: Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
Mayor Smith commented on the following correspondence received:
1) Avon Building Department Monthly Tally Sheet showing total permits issued this year as 264 and last year to date was 214. The difference in growth showed last year's evaluations at this time to be $15,430,833 and this year to date is $29,710,867, almost twice the evaluation for the same period.
2) Avon Fire Department Report for April, 1998 showing 39 ambulance calls and 16 fire calls.
3) The cost for the engineering and inspection for the Northbranch Interceptor and suggested a meeting should be called by the Sewers and Drains Committee to discuss this matter.
4) Had met with Sharon Barnes from Barnes Nursery regarding the use of Avon's fly ash dump at S.R. 611 and Miller Road. He had some proposals from different cities on how they had proceeded and would forward the information on to Council if there is interest in working with that parcel of land.
5) Awarded a Certificate of Appreciation to June Mitchell for twenty years service to the City.
Clerk of Council received the following correspondence:
1) Received a letter on May 12 from JWA Properties to confirm and clarify their commitment to providing the City of Avon with funds to assist in necessary repairs the City will be making to Schwartz Road in the future. This letter was distributed to Council.
2) Letter dated May 13 from Gary Smitek requesting Ordinance No. 61-98 - To Authorize Subdivider's Agreement for Highland Park Phase 3 be included on the agendas of the Work Session on June 1 and the Council meeting on June 8.
3) Letter from Herb Brandt of 37455 Chester Road again stating his position on the question of rezoning Chester Road from R-3 to R-1. This letter was distributed to Council.
4) Letter dated May 20 from Paul Pustay to withdraw the request for rezoning on the corner of Moore and Chester Roads.
5) On May 20 no bids were submitted for the lease of 25 Acres of City Park Land for Agricultural Purposes.
6) One bid was submitted on May 20 for the Sale and Removal of the Structure Located on City Owned Property which was distributed to Council.
7) Letter requested by Carol Ladikos to be read into the minutes as follows:
"I would like to really know, how many times does Mr. Garrett have to be told he is not allowed to sell boats on residential property? ...
ADDITIONS AND DELETIONS TO THE AGENDA
There were no additions or deletions to the agenda
ORDINANCE NO. 92-98 - REAPPROPRIATIONS
The Clerk read Ordinance No. 92-98 by title only, entitled:
AN ORDINANCE TO AMEND AND SUPPLEMENT APPROPRIATIONS ORDINANCE NOS. 38-98, 68-98, AND 82-98 AND DECLARING AN EMERGENCY
A motion was made by Mrs. Doss and seconded by Mr. Graczyk to suspend the rules and act on Ordinance No. 92-98. The vote was: Mr. Graczyk, "aye"; Mr. Jensen, "aye"; r. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
A motion was made by Mr. Graczyk and seconded by Mr. Jensen to adopt Ordinance No. 92-98. The vote was: Mr. Jensen, "aye"; Mr. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
ORDINANCE NO. 93-98 - TO HIRE LABORER FOR STREET DEPARTMENT
The Clerk read Ordinance No. 93-98 by title only, entitled:
AN ORDINANCE AUTHORIZING THE EMPLOYMENT AND COMPENSATION FOR A LABORER IN THE STREET DEPARTMENT AND DECLARING AN EMERGENCY
A motion was made by Mrs. Doss and seconded by Mr. Graczyk to suspend the rules and act on Ordinance No. 93-98. The vote was: Mr. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Krystowski, "aye". The Chairman declared the vote to be 7 to 0 and the motion passed.
A motion was made by Mr. Graczyk and seconded by Mrs. Doss to adopt Ordinance No. 93-98. The vote was: Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Kaiser, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
ORDINANCE NO. 94-98 - POOL CREDITS
The Clerk read Ordinance No. 94-98 by title only, entitled:
AN ORDINANCE AUTHORIZING SWIMMING POOL CREDITS TOWARDS SANITARY SEWER FEES AND DECLARING AN EMERGENCY
A motion was made by Mr. Graczyk and seconded by Mr. Jensen to suspend the rules and act on Ordinance No. 94-98. The vote was: Mr. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Krystowski, "aye". The Chairman declared the vote to be 7 to 0 and the motion passed.
A motion was made by Mr. Graczyk and seconded by Mrs. Doss to adopt Ordinance No. 94-98. The vote was: Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Kaiser, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
RESOLUTION NO. R-28-98 - TO APPOINT CHARTER REVIEW COMMISSION
The Clerk read Resolution No. R-28-98 by title only, entitled:
A RESOLUTION TO APPOINT MEMBERS TO THE CHARTER REVIEW COMMISSION AND COMMISSION SECRETARY AND DECLARING AN EMERGENCY
A motion was made by Mrs. Doss and seconded by Mr. Graczyk to suspend the rules and act on Resolution No. R-28-98. The vote was: Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
A motion was made by Mr. Graczyk and seconded by Mr. Jensen to adopt Resolution No. R-28-98.
Discussion: Mr. Kilroy requested the names be read so the people in the audience know who is being appointed. The Clerk to read the following: Anthony Discenza, Thomas Downs, Kathy Herbst, Ronald Keller, David Marinac, David Mast, Ted Rink, John Smitek, Craig Witherspoon, and Alternates: Steve Schafer and Ellen Young.
The vote to adopt Resolution No. R-28-98 was: Mr. Jensen, "aye"; Mr. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mrs. Doss "aye"; Mr. Graczyk, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
RESOLUTION NO. R-29-98 - TO APPOINT MEMBERS TO RECORDS COMMISSION
The Clerk read Resolution No. R-29-98 by title only, entitled:
A RESOLUTION AUTHORIZNG THE MAYOR TO REAPPOINT PRESENT MEMBERS TO RECORDS COMMISSION AND DECLARING AN EMERGENCY
A motion was made by Mrs. Doss and seconded by Mr. Graczyk to suspend the rules and act on Resolution No. R-29-98. The vote was: Mr. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
A motion was made by Mr. Jensen and seconded by Mrs. Doss to adopt Resolution No. R-29-98. The vote was: Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Kaiser, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
RESOLUTION NO. R-30-98 - TO ADVERTISE FOR BIDS TO SELL USED CASE TRACTOR
The Clerk read Resolution No. R-30-98 by title only, entitled:
A RESOLUTION AUTHORIZING THE ADVERTISING FOR BIDS FOR THE SALE OF A CITY-OWNED CASE TRACTOR AND DECLARING AN EMERGENCY
A motion was made by Mr. Brady and seconded by Mrs. Doss to suspend the rules and act on Resolution No. R-30-98. The vote was: Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
A motion was made by Mr. Graczyk and seconded by Mr. Jensen to adopt Resolution No. R-30-98. The vote was: Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
RESOLUTION NO. R-31-98 - TO ADVERTISE FOR ASSISTANT CLERK OF COUNCIL
The Clerk read Resolution No. R-31-98 by title only, entitled:
A RESOLUTION TO ADVERTISE FOR THE EMPLOYMENT OF ASSISTANT TO THE CLERK OF COUNCIL AS A TEMPORARY PART-TIME POSITION AND DECLARING AN EMERGENCY
A motion was made by Mr. Graczyk and seconded by Mrs. Doss to suspend the rules and act on Resolution No. R-31-98. The vote was: Mr. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
A motion was made by Mr. Graczyk and seconded by Mrs. Doss to adopt Resolution No. R-31-98. The vote was: Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Kaiser, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed.
ORDINANCE NO. 86-98 - SUBDIVIDER'S AGREEMENT FOR STONEBRIDGE
The Clerk read Ordinance No. 86-98 for the second of three readings by title only, entitled:
AN ORDINANCE TO AUTHORIZE A SUBDIVIDER'S AGREEMENT FOR STONEBRIDGE CREEK SUBDIVISION NO. 1
The Chairman declared this to be the second of three readings of Ordinance No. 86-98.
ORDINANCE NO. 91-98 - SUBDIVIDER'S AGREEMENT FOR AVON COMMONS
The Clerk read Ordinance No. 91-98 for the second of three readings by title only, entitled:
AN ORDINANCE TO AUTHORIZE A SUBDIVIDER'S AGREMENT FOR AVON COMMONS SUBDIVISION
The Chairman declared this to be the second of three readings of Ordinance No. 91-98.
ORDINANCE NO. 85-98 - DEVELOPER'S AGREEMENT - KOPF
The Clerk read Ordinance No. 85-98 for the third of three readings by title only, entitled:
AN ORDINANCE APPROVING DEVELOPER'S AGREEMENT WITH KOPF CONSTRUCTION CORP. FOR A SANITARY SEWER ON JAYCOX ROAD EXTENDING ON CHESTER ROAD NORTH TO THE CITY LIMIT AS CONSISTENT WITH REVISION OF THE SANITARY SEWER MASTER PLAN AND DECLARING AN EMERGENCY
A motion was made by Mrs. Doss and seconded by Mr. Graczyk to adopt Ordinance No. 85-98. The vote was: Mr. Brady, "aye"; Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Krystowski, "aye". The Chairman declared the vote to be 7 to 0 and the motion passed.
REPORTS AND COMMENTS:
Mayor Smith commented:
1) We put the Schwartz Road Park Improvement out for bid but did not receive a bid. Times are very good and we did not receive a bid. Mr. Plas stated he received a memo from Mr. Bramhall this afternoon requesting extension on it and has a reply memo to extend the bid date to June 11. Mayor - it's a very worthwhile project with grant money involved and we will be looking for more bids. We're not getting the bids because there's so much work out there.
2) We have some comments on the front entrance to The Fields Subdivision and I think that Mr. Krystowski had stated the only thing we can do on that it is to remove the trees and put that back into grass. That is basically the only answer to the question - nobody wants to take care of the trees and everything so the best thing we can do as a city is remove those. Mr. Krystowski commented that it is not the city's responsibility to remove them. It is the responsiblity of the builder that put them in. Mayor Smith - they would be removed one way or the other and that would just be a grass area.
3) Council has received a letter from Chief Root of the Fire Department on some of the trees being planted in the new subdivision across from Century, silver maples, etc. that are real close to the wires and we have always had problems over the years with the old ones. Might not be a problem next year or the year after, but in 10 - 12 years those maples grow and might be all the way up into the wires again just like everywhere else. This is something the Chief felt should be brought to attention and would like some direction. The concern of the Chief is that we should probably keep to a certain type of trees that close to wires.
4) We will receive our money from last year's CDBG for the Northgate drainage improvements.
5) In response to Ms. Ladikos' letter Mayor Smith stated that Mr. Garrett did receive a citation and is going to Avon Lake court for his dog.
Stated there is a particular issue again that I would like to clear the air about. Since day one of my announcing that I was a candidate for City Council I have been under scrutiny by some members of Council because of my occupation and how it relates to the elected position. Prior to the filing of my petitions for Council and since being elected I have spent a lot of time reviewing my ethical responsibilities with the Ethics Commission. I have since learned that ethics were not always a top priority of some of these same Council members. And for a body of government to have selective vision by overlooking incidents that seem so obvious to the Ohio Ethics Commission is totally inappropriate.
At the request of some Council members to provide proof or "shut up" I think that it is only appropriate to discuss a report that was issued on May 15, 1998 by the Ohio Ethics Commission. The report is based on facts provided by Mr. Krystowski and Mr. Stringer to the Ohio Ethics Commission which states: "A private developer is engaged in substantial residential and commercial real estate development within the City and the Council member is the owner of a business that you have stated sold over $50,000 worth of equipment to this developer. It goes on to refer to Revised Code 102.03 (D) (E) which cover the conflict of interest prohibitions.
Under D it says: "No public official or employee shall use or authorize the use of the authority or influence of office or employment to secure anything of value or the promise or offer of anything of value that is of such a character as to manifest a substantial and improper influence upon the public official or employee with respect to that person's duties." Under E it says: No public official or employee shall solicit or accept anything of value that is of such a character as to manifest a substantial and improper influence upon the public official or employee with respect to that person's duties." The report goes on to say how certain other precendents pertain to this circumstance. Under the application of precendent which is basically how this all applies to the situation that's in front of us, it says "this is a substantial amount of business between the Council member and the developer.
It also goes on to say that given the facts and circumstances in this situation, the relationship between the City Council member and his customer is such that the Council member's objectivity and independence of judgement could be impaired when considering the interests of his customer. Therefore in the instant situation Revised Code 102.03 D prohibits the City Council member from using the authority or influence of his office with respect to land use matters that affect the interest of his customers. Under conclusion it says: "As explained above, under the circumstances that you have presented, the city Council member is prohibited from participating in matters pending before city Council that affect this developer." And then it goes on to cite the sections of the Ohio Revised Code, Chapter 102. And Sections 2921.42, 2921.421 and 2921.43 of the Revised Code that this is in violation of.
I am convinced that this report is just the start of findings that will prove that there are Council members who have broken the law. Meanwhile their puppets have launched attacks on those of us members of Council who are trying to do the right thing and making Avon's government open and accountable. I will post a copy of this report with the Clerk of Council and the Avon Public Library for those of you who wish to read it.
1) Commented on Item #13 it has written revisions to the Subdivider's Agreement for Stonebridge to be available on 5-26. Mr. Stringer replied the revision is what the Clerk of Council presently has. He had discussed the revised edition and all the changes have been made.
2) A letter that started out in August, 1997 from Bob Hamilton with the question about the Eagle Creek sidewalk bond. That was brought up again and on May 8th he had written again about the status. Did we know the bond was still in place. Mr. Stringer replied the bond is still in place and he has written a letter two or three weeks ago to the developer, Mr. Andreano, and has not had a reply. In his letter he had indicated that Mr. Andreano had a responsibility and if we didn't hear from him we would be in touch with his bonding company and make a claim against the bonding company to cover our costs on the sidewalks. He will follow up on the situation again.
3) Received two memos today from Bramhall Engineering regarding a problem over at the Schwartz Road Park. A problem that involves the enclosure of a ditch along the north property line behind the park and also the encroachment of a fence that's on private property that needs to be moved. And with the Natureworks project hopefully starting shortly, I would like to add a Finance Committee meeting after the Sewers and Drains Committee meeting on Thursday evening and asked Mr. Hamilton and Mr. Bramhall to be there so we could possibly find approximately $20,000 to get this project underway. He recommended that this all be done at the same time.
4) Finance Committee held a meeting last Wednesday evening and there were quite a few items on the agenda. The first one was miscellaneous water bills and water legislation. I'm still waiting for Dave Conrad to get back with me. There are a few water bills that have been in dispute for over ten years and what the City is going to do with these. It takes more time and money to keep them on the books and keep reviewing them. He's going to supply a list. Also, the problem when the outside meters are being replaced, they are not calibrated according with the inside meters which are more accurate; the outside ones we read. So he was going to get with Mr. Stringer as to what could possibly be done. Some of these outside meters have thousands of gallons of water difference. Should it be charge to the resident or what. Dave Conrad will get with you on that. Mayor Smith stated he had a meeting scheduled the following morning to discuss this item and others.
5) Chief Vilagi gave a quick overview on the renovation and improvements to the Police Department. The dispatch area on the upstairs of the Police Department. He is well within the $50,000 budget he thought it would take to make it livable for the dispatcher in the upstairs so the front doors can be opened. He will give a further report later.
6) The road resurfacing projects - the roads that hopefully will be resurfaced with different types of overlay, chip and seal, Doovy's, Eaton, Stoney Ridge, Pear, Cherry, Willo, Riegelsberger, Jaycox, Nagel and Chester. Some of them are in more detail and some are just overlays. Some are chip and seal for Pear, Cherry and Willo. The total approximate cost is $255,000, a little bit higher than the appropriated money of $150,000. Mr. Biro commented that Mr. Bramhall is going to advertise for bids for the paving and they are putting everything together right now. The possibility of a short-term low interest loan was discussed at that time. When the bids numbers come up they will let us know and we will have another meeting and go forward and see what Mr. Hamilton suggests we do with that.
7) The Service Director asked that a full time secretary/helper for the Water Department be added to his department. We received daily routine items that this person would be in charge of which is just too much for the current secretarial staff to handle and the recommendation from the committee was to bring that forward to a Work Session.
8) The Finance Department announced the resignation of a part-time employee who is moving out of state and asked that this position be filled with a full-time position. I am asking that be put on the Work Session also next week. This was a positive recommendation from the Finance Committee also.
9) Stated: "I have been publicly accused of violating both the Sunshine Law and the Ethics Law. I have in front of me a memo from the Law Director, Dan Stringer, which in his final conclusion states that there was no violation of the Sunshine Law. And, also according to Saturday morning's Journal, though I'm not quite sure how they found out before I did, since I received an Ethics Committee ruling today in the mail, that the Ethics Board ruled that I cannot vote on Avon Commons Development, a fact that I have always been well aware of. But according to the Ethics Board the only conflict that exists between myself and Avon Commons is my relationship, like it or not, to my brother who has a land interest in this development. So since I have never taken part in discussion involving this issue, nor do I intend to vote on this issue, I have not violated my ethics either. And I would hope that in the future all members of Council, before they make slanderous accusations, would check their facts first."
Mr. Graczyk commented:
1) On the next Work Session I would like to have a discussion on Schwartz Road. The developer over there has given the City $18,000 to try to make repairs to the road. I drive the road on a daily basis and something must be done. The people living there have their cupboards rattling when trucks go down the road so we must do something with it. I realize $18,000 is not enough to make a permanent fix, but it's going to have to do to get something done there. Mayor Smith stated it is an $80,000 fix for the road. The only reason the City will be getting a loan is because we will be taking some of the money we normally have in the budget and paying some of these grants off. We have to pay those things ahead of time and when the grant comes in the money comes in. The only reason we will be doing this is because we have to pay up front for the contractor from some of the grants that we do have and the money will roll back in. I don't want anybody to get under misconception and go borrowing money to fix the roads; it's actually moneys that we will have at the end of the year and don't want to get out of the paving season. So we're going ahead of time and bring back money; it's an $80,000 fix and $18,000 is not much towards the cost.
2) On road repair items: the intersection of Jaycox Road and Detroit Road where the tavern is - there have been a number of accidents there from people pulling out of the tavern across Jaycox Road to go out onto Detroit Road. I talked to the Police Chief about it and he agreed the situation needs to be addressed and I'm suggesting that we look at that and put up some guard rail to stop that shortcut into the intersection. It's like having an exit from a business at the corner of two streets going two different ways and there is a bad situation there. Last year there was an accident caused by that and the man was in the hospital for some time and I think we need to address it.
3) The intersection at Detroit Road and Nagel Road where the paving comes together on those two streets, there's a rather large hole between the paving that needs to get patched. It looks like the way the paving was done on Nagel Road caused that problem.
Mr. Jensen commented:
1) The retention basin for the high school is now finally done. The engineer needs to check it out and make sure everything is right where it's supposed to be.
2) Asked if Mr. Dave Eubank could come here and explain to us what he can do about the road impact fee. Mr. Stringer replied he had spoken with Mr. Eubank and learned he is available June 1 and would be willing to come to that Work Session and also Mr. Bramhall has sent him information he can review before coming here such as our Master Plan, Master Sanitary Sewer Plan and Thoroughfare Plan and other pertinent information. He would be willing to come and June 1 would be fine. He did tell me he would charge a consulting fee, not for travel time, strictly for time he spends with this Council. He felt he could probably keep it to an answer to make a presentation and answer questions. He has an impressive background like Mike Bramhall mentioned. Before he became an attorney he was a City Planner for 14 years and he said it's important to have a City Planner and a Traffic Engineer that can do the preliminary studies and he is able to be available under those conditions, either June 1 or 8.
Mr. Krystowski stated it was the request at the last meeting that we have him come as soon as possible, so he should be scheduled on the next Work Session and Planning Commission should be invited to be here also. Mr. Graczyk asked if that would be paid for out of Council's budget and Mr. Krystowski replied he is not sure there is a charge. He would be giving a presentation to us to see if Council would eventually be interested in hiring him. In essence he would be selling his wares that evening.
Mr. Stringer added when he spoke to Mr. Eubank he indicated he would come up and spend an hour or two, or how much time would be required, his travel time would not be included in that but he had to go by the hour for that initial consultation. I can call him back and see if he is willing to waive it, but I would think this would be a legitimate expenditure out of General Fund. If he is working strictly by the hour, he charges $225 per hour; if it's a full day then that day would be reduced. I think he was anticipating coming up here and then spending about one hour of actual billable time addressing Council and answering questions. I think before we take the next step we definitely need a person with his unique background. The things he has been able to assemble at least at this point has been approved by Court; it's in the Court of Appeals. He feels secure that the Court of Appeals will affirm the lower court and they approved the impact fee. It's probably a good investment to have him come here and we intend to pursue this further.
Mr. Krystowski- I believe June 1 was the date we had tentatively scheduled Alan Weinstein to come back and we'll need to look at the agenda to see how much is on it to see whether or not we will be able to get everything in one evening.
3) Had a call from Mr. and Mrs. Repas of 37102 Hunter's Trail complaining about the light from the high school that shines in their window all night long. Mr. Jackson said he would check into it.
4) A call from Joe Lobins, 37546 Detroit Road, right across from the high school and when they built the high school they put a telephone pole almost in his front yard. It is possible that it is on City property but is right in front of his house and he doesn't have too much frontage. I thought those lines were all going underground when the school is completed.
Mr. Krystowski- the line is going back too and would be underground but within in the right of way, was it The Fields Subdivision they have to have poles to service the development in the old original right of way. We can send a letter to CEI and ask them to review it, but so far we have not been successful getting them to do anything.
Mayor Smith - we will check on that and see what can be done.
5) I would like, once and for all, put it to rest with the Sunshine Law we were accused of violating. We got a letter from the Law Director and I would like him to explain it to everybody. First of all there is three criteria that have to be present: a prearranged meeting, a majority present, and discussion of public business.
Mr. Stringer replied - I think my memorandum pretty much speaks for itself. I did take the time to contact the Attorney General's office and was updated on some recent decisions on the Sunshine Law and I also did my own research. There are certain criteria that have to be present in order to have a violation of Sunshine Law. The first one it has to be a meeting and it has to be prearranged, that's the one that will generate the most question as far as fact is concerned if someone were to challenge it - what is a prearranged meeting and how is a gathering that might be spontaneous or impromptu that might deteriorate into a prearranged meeting, which can happen. You have to have a majority present and there is no question about that one; either you have a majority or you don't; if you have four there you have a majority. And then discuss public business is pretty broad as far as public business is concerned.
I think the only one that really creates a problem and it created a problem for me when, at the request of the Mayor, he asked me to look into this and I did, that was the one that created the most problem for me what was alleged to occur as a prearranged meeting. There was a majority present and there was discussion, at least what I think could certainly be loosely related to as public business. But whether or not it was a prearrange meeting, I really didn't feel there was sufficient facts that I could gather that would lead me to believe that this meeting was by design. Without that element present I felt that you're getting into an area now where I just didn't feel based upon the information that I gathered with those present that I could conclude that there was a violation of the Sunshine Law.
What I think as a general rule people should follow is if you're going to err on the conservative side, but don't be so paranoid that when you meet in the grocery store or you meet casually anywhere that you can't talk a little bit about what's going on in the city and express your views. But certainly if there are four members of Council present and it might be a golf outing or a luncheon or whatever and if four members continue discussing City business over any period of time, then the argument can be made and persuasively made that was originally a social gathering or impromptu meeting has now becomea a prearranged meeting and would be in violation of the Sunshine Law if the elements were all present. In my memo I suggested that there is a lot of gray area in this whole area of law and I would just recommend that without being paranoid and treating each other like lepers that if there is a majority present I think the first thing that should be on your mind is we have to avoid any type of a situation where we're actually discussing business. And its just the discussion of the business; it doesn't have to go to discussion and taking action or threatened action.
So my memo speaks for itself; and it's not just City Council, it's Planning Commission, Civil Service, any board, Charter Review Board and any public board is charged with the Sunshine Law. So any majority of that board that gathers together, either by design, by just an impromptu situation has to be very careful that they don't get in discussion of City business.
Mr. Kaiser commented:
1) A Sewers and Drains Committee meeting has been scheduled for May 28 for discussion on the drainage problem on Lorie, Caroline] or Lake Drive in Northgate. Some public input is needed and Mrs. Doss added that Mike Bramhall has also asked to attend the meeting.
2) My opinion, based on the Law Director's letter about the Sunshine Law. This whole thing started because four people were waiting for a radio on election day to listen to results of an election on May 5. There was no talking of anything when I was in the room. The two members who are accusing the four of us of conducting this meeting, Mr. Kilroy and Mr. Brady were not even present or in the building. So it's beyond me, I would just like to know who is your puppeteer.
Mr. Kilroy commented:
1) I'm a little bit surprised by the comments of some of my colleagues who are patting themselves on the back and congratulating themselves because they were in the gray area of whether or not they violated the law. And that's what Mr. Stringer's memo clearly states. It doesn't say it clearly was not a violation; it says it was a gray area. I conclude that it falls within the gray area mentioned above. It also says: however, if such a gathering of members takes on discussion of public business among the majority of the public body, it could be considered a violation. Now, we heard different people comment on that and Mr. Jensen admitted that there was a discussion of public business. This was not people at a golf outing; this was not people bumping into each other in a grocery store. This was four members, a majority of this body, meeting in the Council caucus room. I don't know how that could be anything but prearranged; I don't think they co-incidentally happened to be there. But I don't think anybody should believe that it was clearly not a violation. It was described by Mr. Stringer as a gray area. I don't think people should be happy about operating in gray areas of the law.
2) In regard to Mrs. Doss' impression that she was accused of anything or that she was slandered in any way, I have the minutes of that meeting in front of me and it doesn't appear that Mr. Brady mentioned Mrs. Doss' conduct and the only conduct that was mentioned was mentioned by myself. And I'll quote, it says: "I have noticed from time to time when I've been at Planning Commission where the issue of Avon Commons has come up, Mr. Jim Piazza announces he has a conflict of interest in that matter, relinquishes the chair and usually leaves the room. I would assume that Mrs. Doss has the same conflict and I would like to know how she could justify intervening in the Avon Commons law suit." That's not an accusation; it's a question. And I think if people in this body can't answer legitimate questions that arise out of their conduct, the problem is with them and not with slanderous accusations. The question is not slander, especially when you have ample time to respond to it as you did that night.
The syllabus of the advisory opinion by the Ethics Commission, as an independent body indicates that, and I'll read it not to give my own slant, but to give the exact words: "As explained above, R.C. 102.03 prohibits a public official or employee from participating in matters that will affect the financial interests of parties with whom he has a close family relationship. In the situation you have presented, you would be prohibited from participating, as a city Council member, formally or informally, with respect to land use decisions affecting property bordering or near your brothers' property because the land use decision could have a definite and direct beneficial or detrimential financial impact upon your brother's property."
The court is going to make a land use decision that affects the value of your brother's property. That's the basis of the question and that's the basis of the exact words of the Ethic Commission's Advisory Opinion. I've been looking at a pamphlet produced by the Ohio Ethics Commission titled: "Ethics is Everyone's Business" and I've reflected and a cloud of unethical conduct puts a cloud over the integrity of this whole body. It reflects on the desirability of the City of Avon as a site for new business locations, and it reflects on the values of the entire community.
I had a number of calls over the holiday weekend over the Ethics Commission findings or advisory opinions that were reported in the newspaper and I was not able to really research it, but I would like to ask Mr. Stringer to comment on a section of this pamphlet by the Ethics Commission that I'd like to read and it says:
" All of the provisions of the Ethics Commission are criminal prohibitions. Most of the prohibitions, including the conflict of interest prohibitions are first degree misdemeanors, punishable by a maximum fine of $1,000, maximum prison term of six months, or both. However, certain provisions of the public contract prohibitions are fourth degree felonies, punishable by a maximum fine of $2500, maximum prison term of 18 months or both. I would like to ask Mr. Stringer whether the report by the Ethics Commission provides probable cause that an offense has been committed. And, if so whether the City Prosecutor would be pursuing it or the County Prosecutor would be pursuing it, or whether because the City Prosecutor is funded by this body, whether there would be a provision made for a Special Prosecutor.
Mr. Stringer replied, the section that probably would relate, if it does relate at all, would be the Section 102.03(D). I believe that's a first degree misdemeanor and in that section of the code it refers to concurrent jurisdiction of enforcement from the County Prosecutor or the City Prosecutor. At this point, quite frankly I just read the report today; it was kind of lost in City Hall and people were calling me about a report that was directed to me that I had not read yet. But I did read it today and it is my intention to gather further information and once I gather further information, both factual and also case law, I then will determine whether this matter should be referred and I would think, in my judgement at this point, if such referral was made for further investigation, then it would be to our Prosecutor unless the administration or Council feels that it is of such a nature that only an independent prosecutor, which I don't like to use that expression too much because we all read the papers and know that independent prosecutors sometimes can do to that, control it to a certian extent, mainly run up a big fee among other things. But that's what I would do.
At this point I don't look at this as being sufficient for me to establish probable cause because the opinion was the result of a hypothetical question that was asked over a year ago. That question was asked and it has taken them a year in which to respond to my inquiry and at this point I am not going to rush into a judgement of any type of probable cause without further facts and further information on a law. But I assure you it is not something I will ignore and I will take action to gather further information I think is necessary.
Mr. Kilroy asked: Given the time that's already passed is there any problem with statutes of limitations?
Mr. Stringer replied he is not sure what the statute of limitations is on this first degree misdemeanor. It could be. Again, I believe that what they are saying here could have occurred more than a year before the question was even asked. So, if that was the case, I believe you could have a serious problem. We could have had a problem even when the question was asked about the statute. Because at this point I don't have specific dates as when this could possibly have taken place. I was told it was done, but I was told it was not done at any specific time in the past. I have to look into it. Those are the kind of things I think I should do before I really determine what could be done. I'm not going to drag my feet on it and will give you an answer within a week.
... I would like to offer this to Council: "After much thought, effective midnight, May 26, 1998 I will resign my position as City Council President and Councilman-at-Large. My announcement is in no way a reaction to the latest article in the Morning Journal. I have been considering this announcement for a while and within the last two weeks have discussed this with the Law Director and another Councilperson, indicating that I was specifically going out of town with my family this past weekend to make a final decision.
I have always maintained that if and when my family decided to develop any family land I would step down from my position on Council, as I firmly believe, a builder/developer cannot have an unbiased opinion on city matters in a city that is growing as fast as Avon. Though my family does not have any immediate plans for land development, my decision to resign has been quickened by the recent disunity between Council members. For the first time in nearly the 20 years I have served Council and Planning Commission, I find Council unable to carry out their elected duties. I have experienced intimidation by attorneys along with rumors and lies being spread around town, all in an attempt to render me ineffective in my elected position. As I have been under such scrutiny, I feel my only choice is to resign and allow Council to redirect their energies to the sworn duties representing the citizens of Avon and the best interest of the City." I have placed a letter on the desk of the Clerk of Council along with my Codified Ordinance book, Charter and city keys. To the people of Avon who voted for me in this past term I have to say I'm sorry. Again, I would like to challenge this Council to roll up their sleeves and do the job they were elected to do.
Mr. Plas asked if it would be possible to bring a representative to next week's Work Session to discuss the job on Moore Road.
Mr. Ken Demsey representative of North American Cultural Center, stated the file number of Avon Commons with the Army Corps of Engineers is 98-502-006. They are also known as First Interstate Corp. He is here again and requesting that a Phase 1 archeological survey be made to protect the native Americans that are within an encampment that is located within the Avon Commons Subdivision. He called the Army Corps of Engineers to ask for some information on these permits, impact statements, impact studies and the lady in charge was not there but the gentleman looked into the records and said that this is called scrub land. He asked if the developer knew it was known as scrub land. What we're looking at here is a wooded area with a lake that is not claimed and a stream. There's got to be hundreds of trees that have to be timbered out of there. They need a permit to cut down those trees. But if they say it's scrub land, that means a raped land. Nothing but bushes. So I think what we're going to do is try to get to the bottom of how these applications were presented to the Army Corps of Engineers and to make sure that everything is where it should be. But again, as a Native American, the people that are buried within those encampments have a right to stay there. And all we want this Phase 1 archeological survey do is to show the developer where they are so they're not disturbed. We're not looking at a real great area, only talking two acres at the most.
Jackie Scott, 2955 Mapleview Lane, I had something written up that I was going to read but in view of what you said Mr. Krystowski, I'm just going to say what I think. And before you point fingers and call me a puppet, nobody tells me to think or what to say. I think this is a very sad day when the city loses somebody who has put this much hard work into this city like Mr. Krystowski has. These five members of Council that were accused of things have done a lot of good for the City. You could have accomplished the same thing by simply asking the Law Director to look into these charges and then bringing them to the public's attention. But instead you chose to just make accusations. It's dirty politics is what it is. People like you destroy and don't do anything for Avon. ... Mr. Krystowski has not made one dime for being on this Council. He is in the business to sell equipment. That's what he does. If he actually was cheating, I am sure he would have just sat back and let the rest of you vote because his vote wasn't even needed. The only way this city is going to go in a positive way is if you people work together and you work together positively, not by throwing dirt at each other.
Mrs. Joan Bukovich, of Joseph Street, stated: "I too think it's sad what is happening in city Council and what I think is happening in Avon. I don't think that the solution to this problem is to accuse one another and to make accusations at one another and to continue to say criticisms to each other. I think that Mr. Brady and Mr. Kilroy both were asking questions because they had questions. I too wondered about some of the questions that they asked, and I know that other members of the community wondered about those same things. I know that it's possible that there probably might have been other ways to handle it, but I don't think it's right to criticize them for asking questions when there are questions that arise with how City Council members handle themselves. Making derogatory comments to one another and saying these things is very negative to our city and to the workings of our city. I hope that we can all put this behind us and continue forward; and when we do have a question, I think it's good to ask those questions. I have probably called all of you at some time or another and have asked questions. I think that's okay. We need to put this behind us and not accuse one another and criticize one another. Thank you."
A motion was made by Mrs. Doss and seconded by Mr. Jensen to adjourn the Regular Meeting of Avon City Council. The vote was: Mrs. Doss, "aye"; Mr. Graczyk, "aye"; Mr. Jensen, "aye"; Mr. Kaiser, "aye"; Mr. Kilroy, "aye"; Mr. Brady, "aye"; Mr. Krystowski, "aye". The Chairman declared the motion passed and adjourned the meeting at 8:45 P.M.
Addendum to the Minutes -- Remarks by Leonard Piazza regarding the LAKE around which Native Americans supposedly camped:
"... my recollection of the existing pond on the Bennett parcel located in the southeast corner of the parcel.
This pond was dug in the fall of 1936 by myself, Mr. Frank Pickering and Mr. Schmetzer the owner at the time. The pond was dug to provide a reservoir for the irrigation of Mr. Schmetzer's Nursery and Christmas Tree stock. ...