Hillsboro Mayor Drew Hastings on Monday provided city council with copies of an email exchange between him and Gary Lewis, the city auditor, in which Lewis stated that in his opinion Hastings’ firing of an assistant law director four years ago and his hiring of a replacement “may have been an unlawful act.”
Hastings’ response questioned why Lewis was bringing up the issue four years after the fact.
The Times-Gazette requested and received a copy of the exchange following Monday’s council meeting.
The city law director, Fred Beery, said Tuesday that while he was not happy with Hastings’ decision to terminate Kathryn Hapner four years ago and replace her with attorney Laura Curliss, he did not regard it as unlawful.
“No,” said Beery when asked if he had told Hastings that the move was against the law. Instead, he said he told Hastings that he wanted the mayor to have confidence in the legal advice he received, and asked, “How can I help?”
In his email to Hastings, dated Friday, on which he copied a number of other city personnel, Lewis said he was responding to an inquiry from Hastings “last month” regarding whether the 2016 budget included “sufficient funds for the purpose of acquiring outside legal counsel for various issues that may arise within the city.”
Lewis said that after “doing some research,” he concluded that “you are not permitted to contract with outside legal counsel, for the purpose of conducting City business, without the express written consent of the director of law.” Lewis included a number of passages from state code in his response.
Lewis stated that the law director must be included in such decisions, and that Beery should make the determination if outside legal help is needed.
Lewis wrote, “Finally, you do not have the authority to hire any personnel for the purpose of acting as an assistant director of law. On this last point,” he added, “it is my opinion – and my opinion only – that your firing of Kathryn Hapner during your first term and the subsequent hiring (albeit for a limited time) of Laura Curliss to act as assistant law director, may have been an unlawful act.”
Lewis concluded his email by stating, “Further, the Auditor’s office will not process employment forms for any employee employed by anyone other than the director of law (and affirmed by City Council if required by law), for the purpose of acting as an assistant law director.”
Lewis was often at odds with former Hillsboro Mayor Dick Zink, but he has generally been a defender of Hastings, both at council meetings and on social media platforms. He attended a re-election victory celebration for Hastings on election night last November.
Hastings was recently the subject of a civil complaint alleging malfeasance. That complaint was dismissed Friday. A criminal investigation that became public on Dec. 16 is ongoing, looking into allegations of forgery and theft in office after the refund of a $500 vacant property fee issued to Hastings by Lewis, based on a document approving the refund and containing the stamped signature of Todd Wilkin, the safety and service director.
According to an affidavit filed with a search warrant, Wilkin has told law enforcement personnel that he did not authorize the refund. Investigators are also looking into the alleged use of a city dumpster by Hastings for personal debris, according to the affidavit. Sources say the investigation is also probing additional allegations.
In his response to Lewis, emailed Monday, Hastings wrote, “It is distraction enough – to impede city business by diverting resources away from serious efforts – when it is caused by a small group of hateful sore losers (the dismissed civil suit) – but when it’s one of our own who jumps on the bandwagon and fans the flames of vigilante politics, I have to respond.”
Referring to the termination of Hapner shortly after he took office in 2012, Hastings wrote, “What is troubling is that your assertion is one that has no basis in reality. Nobody involved in the matter has ever discussed the termination or had concerns about – in the 4 years since the event – until you wanted to make it a lightning rod for my detractors.”
The mayor stated, “Your email was an unsolicited legal opinion that neither I, or anyone else, had ever even inquired about. By creating a problem where there was none you have also left the door open for our Law Director to be enmeshed in any dissection of this termination.”
Hastings wrote that Lewis is aware he has an “open door policy,” and “you walk by my office four times a day. You could have easily brought up any concerns or disagreements to me directly. But you didn’t.”
Hastings wrote that voters are “tired of ‘politics as usual’ and power plays and ‘gotcha’ which is what the intent of your email was.”
Hastings wrote that “Fred Beery will tell you – that he is a part-time Law director,” also representing four or five other communities. “So Fred knows and I’m sure is in agreement that at times the city reaches out to other legal sources if something is, say, time sensitive. I am well aware that Fred has final review of any matter and I believe, thus far we have always complied with that.”
Referring to Lewis’ comments about approving the hiring of an assistant law director, Hastings wrote, “The result is that you are holding the city hostage by taking the stance that you are the determinating factor in hiring. The natural question that this begs is: where does this stop with you?”
Hastings noted that the city is preparing to replace Randy Barr, the water/sewer and streets manager who is retiring soon, and a new code officer approved by council recently.
“Dare I ask what if you decide that you don’t care for our hiring plans or decision in that area?” wrote Hastings. “Will I see another email from you containing your ‘cut & paste’ citations and accompanying legal opinion?”
Hastings wrote that he “wholeheartedly” agrees “that there should be checks and balances between our Executive, legislative, legal and financial departments,” but added, “there are boundaries to be respected. I think we all agree on that, but I consider much of your effort to be a severe overreaching into administrative affairs.”
The mayor wrote that “if there is a legal concern or opinion to be directed at my office it should come from the Law Director’s office.”
Hastings concluded his response by stating, “There is much positive work to be done in this City and I would like to have you on board with the effort.”
Lewis said Tuesday that his email to Hastings was prompted in part by a conversation he had with Hastings in December, when the mayor asked about funds available for outside attorneys and indicated “he didn’t want to use Fred in 2016.” He said Beery and Hillsboro City Council President Lee Koogler both questioned that position.
He said he mentioned the Hapner dismissal in his email because of “what I now know” about the Ohio Revised Code’s mandates on the role of law directors. He said his email was designed to provide a record for everyone involved on how he plans to proceed in the future when the issue of hiring outside counsel comes up.
Hastings said Tuesday that he understood how Lewis was left with the impression that he planned to use other counsel aside from Beery “99 percent of the time.” But he said he has always realized that Beery has to sign off on legal work involving the city.
“It was not carte blanche,” said Hastings. “But under a number of circumstances, we wanted to have options,” said Hastings.
As part of his role as law director, the law required Beery to represent the five plaintiffs who filed the civil suit against Hastings last month, in essence making Beery the prosecutor against Hastings in the case.
Beery said Monday that while he is a part-time law director, he is on call full time.
“I disagree that it’s a burden,” he said, adding that he is always available when issues arise. Beery said he agreed with Lewis that the auditor can determine not to approve a purchase order to pay an assistant law director unless he authorizes it.
“I can approve the application for a P.O.,” Beery said.
Beery said that his attitude is to work with the mayor when Hastings wants to employ outside counsel. He said he has not expressed any concerns to Hastings that the mayor has engaged in any unlawful activity in regard to employing such counsel.
At Monday’s city council meeting, Hastings said he was sharing the email exchange with council members because “transparency works best.” He did not elaborate on the emails or even mention who the exchange was with during Monday’s meeting.
“Read at your leisure,” he told council.
Reach Gary Abernathy at 937-393-3456 or on Twitter @abernathygary.