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Starr vetoes Middleburg Heights City Council’s hiring of special counsel; attorneys debate validity of veto

September 4, 2018

Starr vetoes Middleburg Heights City Council’s hiring of special counsel; attorneys debate validity of veto

MIDDLEBURG HEIGHTS, Ohio -- Mayor Gary Starr informed City Council members Aug. 29 that he is exercising his veto power to negate their hiring of special counsel.

Council passed a motion Aug. 21 by a 4-3 voice vote that enabled attorney Joe Diemert to be hired to help members get access to un-redacted legal documents and invoices associated with ongoing city litigation and Starr-initiated investigations. The mayor has been engaged since January in a lawsuit filed by former Police Chief John Maddox.

An Aug. 22 e-mail from Diemert to Law Director Gary Ebert requested specific legal documents. Diemert wants access to “the confidential settlement agreement with former safety director Sandra Kerber,” whom Starr fired last summer. Council members had not seen the document.

Diemert also said he has been informed of “the possibility that there is a taping of executive sessions” occurring, which is forbidden. He asked Ebert to verify with Starr whether or not such recordings have happened, and, if not, he wants a denial submitted in writing.

As for the mayor’s veto, Diemert and Ebert disagree about its validity.

Ebert, who was appointed by the mayor as law director in April, said in an Aug. 28 memo to Starr that, based on case law, council cannot hire special counsel “unless the law director is unable to do the work or is biased.”

He emphasized that City Council “does not have the authority to hire additional counsel to represent it in this matter ... and there is no reason for disqualification.”

Diemert responded in an Aug. 31 e-mail to Ebert that he found “significant errors” in Starr’s veto letter.

“It seems very discouraging to my clients (i.e. City Council) that the administration would work so hard to prevent them from being informed,” Diemert said. “It is hard for anyone to disagree that council has the right to investigate departments, finances and expenditures. If they have to do that through the power of subpoena, they are prepared to do so.”

He disputed the veto, citing case law that indicates “mayoral veto power cannot be exercised against administrative action taken by a legislative authority.”

Diemert contends that council hired him for administrative purposes, not legislative. He went on to say that Middleburg Heights’ city charter does not permit Starr to veto administrative acts.

“Furthermore, the charter clearly limits the mayor’s power to interfere with internal matters of council,” Diemert said, calling Starr’s action “an invalid veto.”

City Council’s next regular meeting is scheduled for 7 p.m. Sept. 11.

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