In 2011, Beery warned Lewis to carry out duties or face mandamus action


Lewis clashed with Holt over $1,979 purchase order

By Gary Abernathy - gabernathy@timesgazette.com



Beery

Beery


More than six years ago, after Hillsboro City Auditor Gary Lewis refused to issue a purchase order authorized by the safety and service director at the time, he relented after the law director sent a letter advising him of his duties under state code and suggesting that a mandamus action could be filed against him.

Similarly, Lewis is currently refusing to process a purchase order from the safety and service director for the demolition of a property owned by Hillsboro Mayor Drew Hastings, and a court filing seeking a mandamus remedy is looming. A writ of mandamus, when granted by a court, compels a public official to carry out his or her duties.

In November 2011, according to a letter obtained by The Times-Gazette, city Law Director Fred Beery informed Lewis that he was facing a mandamus action for refusing to process a $1,979 purchase order submitted by then-Safety and Service Director Ralph Holt for the purchase of duty pants and job shirts for part-time and volunteer firefighters.

An email attached to the letter from Lewis to Holt, dated Nov. 1, 2011, shows Lewis initially responded, “Nearly $2,000 for part-timers? I don’t think that’s called for. I’m not approving that.”

That reply prompted Beery to send Lewis a nearly 5-page letter reminding Lewis of the duties and limits of his role as auditor, saying Lewis’ refusal to process the purchase order “would appear to exceed the statutory authority for the City Auditor.” Beery’s letter cited state code in regard to the duties of the auditor, as well as case law on the subject.

“The Supreme Court has applied these statutes since 1995 as setting forth ministerial functions of the city auditor, not giving or granting discretion in the approval of expenditures,” Beery wrote.

Beery added, “Since discretion for the expenditure is imposed by law upon the Safety and Service Director, once he has made that determination, the case law is clear: the bill must be paid by the City Auditor.” Beery added, “The remedy allowed by law is mandamus,” which Beery outlined by copying mandamus-related statutes.

“As you can see, in mandamus the law provides that ‘the loser pays’ and is liable for any damages,” Beery wrote. The law director also copied additional sections of state code in regard to the subject of “frivolous conduct,” explaining, “That section provides that a person may not contest a lawsuit with defenses that are not supported by the law or a good faith extension of the existing law.”

Beery concluded, “The point to this lengthy letter is more than simply to explain the law. In suits involving recovery for damages for frivolous acts, some weight has been given to memoranda supplied by the aggrieved side explaining their position to the defendant and requesting that they follow the law. Where the defendant does not heed the warning, he may lose his ‘good faith’ exception. Therefore, on behalf of the Safety and Service Director, I am requesting that you approve the purchase order or cite a lawful reason for failing to do.”

Contacted Tuesday, Beery recalled the incident and said that following his letter, Lewis approved the purchase order.

Lewis did not return calls seeking comment Tuesday.

Hillsboro City Council’s April meeting came and went Monday with no mention of Lewis’ recent insistence that council must approve the assessments connected with a demolition assistance program before he approves a purchase order submitted by Safety and Service Director Mel McKenzie to tear down a building owned by Hastings.

In a March 27 email to council members and other city officials, Lewis wrote that “a new purchase order will not be issued for this project until Council takes action and approves the necessary measures.” But neither Lewis nor any council members raised the issue during Monday’s council meeting.

Last week, Hastings – who has applied to the demolition assistance program as a private citizen and property owner — said he had retained a Cincinnati law firm to pursue a mandamus action against Lewis, who has processed other purchase orders for similar demolition projects.

Under the demolition assistance program, designed to help rid the city of blighted properties, the city fronts the cost of demolition and then adds an assessment to property taxes over a five-year period to recoup the costs. Others who have participated in the program are only being assessed 50 percent of the costs, but Hastings signed a document agreeing to repay 100 percent through tax assessments.

Hastings wants to demolish a property he owns at 120 Gov. Trimble Place, commonly called the “Armintrout building.” He said the building has become blighted and beyond reasonable repair, and he plans to create parking spaces for tenants of an adjoining property, including The Times-Gazette.

Lewis’ refusal to process the purchase order for demolition of the Hastings property came despite Beery’s approval. City council President Lee Koogler, who did not attend Monday’s council meeting, earlier said that if Hastings is treated “like every other citizen, he should be afforded the same opportunity through the city.”

But Lewis said recently he has no confidence in Beery’s legal opinion. He has been consulting instead with Brenda Wehmer, a Cincinnati-based bond attorney. He also said in emails that he is consulting with the Ohio Ethics Commission and the office of state Auditor Dave Yost.

Normally, it would be Beery’s responsibility as law director to defend Lewis against Hastings’ mandamus action. But Beery said last week that because Lewis has expressed no confidence in him, he would seek an outside attorney to represent Lewis.

Beery said Tuesday that because Koogler was absent Monday and only the council president, or three members of council, or the safety and service director can introduce legislation, that path wasn’t pursued.

But Hastings argues that action by council is not necessary and that tax assessments for blight cases are the purview of the administrative branch of city government.

Hastings said Tuesday that he had hoped for some kind of resolution at Monday’s council meeting, but since that didn’t happen he expects that his attorneys, representing him as a private citizen, will proceed with the mandamus action this week.

Reach Gary Abernathy at 937-393-3456 or follow on Twitter @AbernathyGary.

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https://www.timesgazette.com/wp-content/uploads/sites/33/2018/04/web1_Fred-Beery-CMYK-web.jpgBeery
Lewis clashed with Holt over $1,979 purchase order

By Gary Abernathy

gabernathy@timesgazette.com