Hillsboro City Auditor Gary Lewis on Tuesday morning emailed various city officials insisting that his refusal to issue a purchase order for the demolition of a building owned by Mayor Drew Hastings is not based on personal feelings.
Lewis also shared an email exchange he had Monday with an outside attorney regarding the city’s demolition assistance program, as well as noting that he is seeking a “decision” from the Ohio Ethics Commission, and concluding that “a new purchase order will not be issued for this project until Council takes action and approves the necessary measures.”
But Safety and Service Director Mel McKenzie said last week that the demolition project is an administrative program, and its funding is included in the budget approved by council.
In his email Tuesday, Lewis questioned the administration’s legal ability to front demolition costs and then assess additional property taxes without going through council.
However, records appear to show that Lewis has approved at least three purchase orders since 2017 for demolition cases similar to the one involving Hastings, when property owners asked the city to front the costs of demolition. In those cases, property owners were only required to pay back 50 percent of the costs through tax assessments, while Hastings would repay the full amount, based on an agreement he signed.
A clerk in Lewis’ office who answered a call shortly after 3 p.m. Tuesday said he had left for the day. A call to his cell phone was greeted by a message saying the voice mailbox had not been set up.
At issue is Hastings’ request to participate in a city program designed to demolish blighted properties. Under the administrative program, the city pays the upfront costs of demolition, and is then reimbursed through assessments on property taxes over the course of five years.
Despite approval from Law Director Fred Beery, Lewis has declined to issue a purchase order for demolition of the Hastings property, often called the “Armintrout building,” located at 120 Gov. Trimble Place. The building served several years as the law office of local attorney Bill Armintrout. Hastings purchased the property in 2017 and wants to tear it down to provide parking for tenants of an adjacent property, including The Times-Gazette.
In his Tuesday email, Lewis questioned whether a demolition program that includes adding assessments to property taxes is legal without council approval. But McKenzie said Lewis has never raised that question before, pointing both to the three similar examples of demolition assessments in which Lewis approved purchase orders, as well as providing a list of more than 90 special administrative tax assessments made during 2016-17 to repay the city for property cleanup costs.
In his email, Lewis indicated he has sent inquiries to three outside individuals or agencies, including:
• Brenda A. Wehmer, a partner with Dinsmore & Shohl, LLP, whom Lewis refers to as “the foremost authority in Southern Ohio – if not all of Ohio – on government financing.”
• The Public Integrity Assurance Team with the office of state Auditor Dave Yost, on the question of whether a demolition program must be approved by council. Yost’s office was the lead investigator against Hastings when the mayor was indicted on four felonies in 2016, an investigation that resulted in a trial where Hastings was acquitted of all charges.
• The Ohio Ethics Commission, seeking a “decision” on the participation of an elected official in a city program.
In his email Tuesday — which was addressed to Beery, McKenzie, council President Lee Koogler and members of city council, as well as copying The Times-Gazette — Lewis writes, “I want to assure everyone that I am not ‘out to get the mayor.’ It’s no secret that we don’t like each other. In the best of times we were only able to acknowledge each other’s existence, but under that minimal circumstance we were able to get a great deal done.”
He adds, “But I do insist that the law be adhered to. I would have scrutinized this situation even if we were best friends. As such a new purchase order will not be issued for this project until Council takes action and approves the necessary measures.”
But Lewis has issued at least three purchase orders for property demolition since 2017, according to records provided by McKenzie, apparently without insisting on the measures he is now requiring. Two involved tax assessments for demolitions of properties in 2017 on North West Street and John Street, and one this year for a property on South High Street. McKenzie said that in each case, the property owners came to the city asking to participate in the program, just as Hastings has done.
On the Hastings request, Lewis’ email on Tuesday states that he has sought the opinion of the Ohio Ethics Commission, and “when I hear back from them I will share their decision.”
The ethics commission does not issue decisions, which are the purview of the courts when challenges are filed. The ethics commission issues advisory opinions, and the commission’s website provides answers to some of the most frequently asked ethics questions, including a question on programs involving property owned by an elected official.
The opinion – number 92-019, using the example of a city council member – states that while an official cannot be involved in the decision-making process or use his or her influence as an elected official, nothing in the law prohibits an elected official from taking advantage of programs “so long as he pursues a course of action that is available to any other citizen” who is not an elected official.
That’s in line with what Beery advised in his opinion earlier this month, as well as a comment made by Koogler last week when he told The Times-Gazette about Hastings’ participation in the program, “If he is treated like every other citizen, he should be afforded the same opportunity through the city.”
McKenzie said last week in an email to city officials that he “dotted every ‘I’ and crossed every ‘T,” adding, “I do not care what situation it is, who it involves (regardless of last name or title), I will treat everyone fairly and by the letter of the law.”
Lewis said in his Tuesday email that the response he received Monday from Wehmer, the Dinsmore-Sholh attorney, was “pretty clear and succinct.”
“Please read the first sentence of Brenda Wehmer’s opinion that she gave when I presented her with the question at hand,” Lewis wrote in his Tuesday email, adding that Hillsboro is a “statutory municipality.”
Wehmer’s first sentence reads, “I have reviewed the standard assessment provisions (Ohio Revised Code Chapter 727) and under those provisions in order to levy a special assessment Council must take legislative action.” Her next sentence states, “However, charter provisions if applicable, can override the statutory special assessment provisions.”
She adds, “Most communities prepare formal nuisance abatement policies and procedures that are codified and then administered by staff… It would be useful to know if Council has adopted any nuisance abatement programs/policies in the past and exactly what they cover and what procedures are required to implement them.”
Hillsboro has at least two ordinances dealing with nuisance or dangerous properties. City ordinance 93.04 deals with “dilapidated, decayed, or filthy buildings” and provides a means for the city to abate the nuisance at the expense of the city, recouping such costs through property tax assessments. City ordinance 150.05 deals with “dangerous property,” and also allows for the city to remove the structure and assess the cost to property taxes.
In his email on Tuesday to Wehmer, Lewis wrote that initially, “after speaking with Mr. Beery, I reluctantly issued a purchase order. However, I later learned that the Mayor’s property taxes was (sic) going to be assessed for a period of five years in order to pay for the demolition. This immediately raised more concerns about special assessments.”
Lewis then cites Ohio Revised Code 727, which “appears to me to state that the legislative authority is the one that approves things like this through a resolution. However, no resolution was presented to City Council for approval.”
Lewis writes that he contacted “the former safety-service director who was there until November 2016” and “he told me that no such program existed during his tenure. I therefore cancelled the purchase order until I could research this further.”
Lewis could not be reached Tuesday to respond to questions about why he did not raise similar concerns over tax assessments when he apparently approved previous purchase orders for property demolitions which included tax assessments.
On Tuesday, McKenzie also provided a copy of an email Lewis sent last Thursday to McKenzie, Beery, Koogler, members of council and his clerk, Annette Black, where the auditor focuses on the fact that the demolition involves a property owned by Hastings, rather than on questions involving the authority to issue tax assessments. Lewis writes in that email that McKenzie’s previous response was “to say the least, underhanded.”
“This is property owned by the mayor. The City is essentially financing its demolition with what is equivalent to an interest-free loan,” writes Lewis. “You didn’t think that would raise huge big red flags not only with me but with the state auditors!!? We must be completely transparent, not only with each other, but with the public when it comes to things such as this.”
McKenzie responded that same day, “I’m not sure what was ‘underhanded’ about my actions… Gary, if you think you understand the law better than our Law Director and have just cause within your power to stop the PO then by all means have at it. If Fred felt this was an issue that should have been brought before Council then by all means, I would have done just that… You and Fred can hash that out and decide who is right.”
Contacted Tuesday, Hastings said the opinion of the law director should be what matters.
“As far as I’m concerned, this has already been determined by our law director. That’s his function,” said Hastings. “Apparently, the auditor didn’t get the answer he wanted. This should never have gone beyond the law director. That’s who you defer to.”
Reach Gary Abernathy at 937-393-3456, or follow on Twitter @AbernathyGary.