Charter did not give Sweeney authority to secretly redraw council boundaries with Dykes
Records show consultant Robert Dykes had 2 years and still breached Triad's $175,000 contract to redraw ward lines by December 31, 2012
CLEVELAND, OH – Council President Martin Sweeney appears to be exercising an authority the council president doesn’t have to redraw ward boundaries in secret with a “consultant” instead of the task being done by the council during open meetings and in accordance with Cleveland’s charter.
Sweeney has recently generated criticism from State Senator Shirley Smith and State Rep. Bill Patmon for the way he’s hidden the reapportionment process from the very voters who approved the plan to reapportion wards in 2010. The council president has been so tight-lipped about his plan to reduce the number of wards from 19 to 17 that it’s sparked numerous rumors about which council member’s ward goes and which remain intact.
Patmon is concerned that Sweeney and consultant Robert Dykes’ delay in meeting council’s original contract terms have let the clock run out for the plan to be shared with the public and discussed in hearings. Dykes’ Triad Research Group was authorized by council to be paid up to $175,000 to handle the assignment from December 1, 2010 until December 31, 2012. The Westlake company failed to meet the terms of the agreement at the expiration of the contract period. Instead of filing a civil tort claim against Dykes’ Triad Research Group for breaching the agreement, council awarded the company an extension on January 30, 2013. After two years and now nearly three months, the plan is still not ready to meet the April 1 deadline.
Patmon said Sweeney is violating the spirit if not the letter of the law with his and Dykes’ delays and secret meetings. Smith and Patmon co-signed and released a letter that shined a light on Sweeney’s alleged plan to break-up Glenville and Forest Hills while keeping historic west side neighborhoods intact.
Patmon shared with Cleveland Challenger that Cleveland is nearly 60 percent African-American, almost 10 percent Hispanic and about 30 percent white while whites control 10 out of 9 council seats. Six Cleveland wards that are not now represented by African-Americans are majority black. Dykes’ research company drew up the last reapportionment plan. The consultant and Sweeney have been criticized for devising a plan to protect the white minority population’s control of council.
“Breaking up of neighborhoods is a violation of the Voting Rights Act. African-Americans make up huge portions of the city but not the equivalent portions of council,” Patmon said. “That’s a red flag. That needs to be talked about prior to the report. At the end of the day this is how you end up with lawsuits with that kind of behavior.”
The reapportionment plan critics believe Sweeney is advancing will call for a battle between Ward 8 Councilman Jeff Johnson and Ward 9 Councilman Kevin Conwell. Ward 11 Councilman Michael Polensek has mailed a letter to constituents with a map and a request for them to protest Sweeney’s proposed plan to divide Collinwood between him and Ward 10 Councilman Eugene Miller. Councilman Jay Westbrook’s retirement leaves no incumbent with an interest at stake in the division of Ward 16 between Ward 15 Councilman Matt Zone and Ward 17 Councilwoman Dona Brady.
Council has to reduce its size by two members no later than April 1 according to Section 25.1 of the charter. If not the authority transfers to Mayor Frank Jackson and gives him a 15 day timetable to complete the task. Unlike ordinances that are controlled by council, the charter functions in the same manner as a constitution for the city of Cleveland that can only be altered by the city’s voters or overturned by the courts and general assembly.
Smith is not happy about Dykes’ failure to complete the terms of Triad Research Group’s agreement with Cleveland’s taxpayers in more than two years and of Sweeney’s hijacking the process. The state senator called Sweeney’s 11th hour tactics unfair and possibly illegal after Cleveland Challenger sent her copies of Cleveland’s charter, relevant Ohio law sections and the ordinance that authorized the Clerk of Council to enter a contract with Triad. She said Sweeney is a public servant and the money council spent with Dykes belongs to the city’s taxpayers.
“The taxpayers and voters are paying Bob Dykes $175,000 for the map and they’re not allowed to see it?” Smith said. “That’s absurd and totally ridiculous. Sweeney and Dykes can’t break up historical communities and play political football with people’s careers, and then not give the voters and council a chance to debate or say the plan in front of them is what they want or not. ”
The section of Cleveland’s charter that governs the issue of “reapportionment” has been in effect since May 4, 2010 when a change to reduce the body’s size was approved by the city’s voters. The plain language of charter section 25.1 states that “the Council no later than April 1 prior to the next regular municipal election shall reapportion the wards of the City.” When Cleveland voters approve the insertion of the word “shall” in any section of the charter it gives elected and appointed officials no other options but to perform the duties as the electorate spelled them out.
City prosecutors appointed by mayors and working under the supervision of law directors routinely fail to enforce Cleveland’s “dereliction of duty” ordinances against elected officials and public employees. 615.12(E) of Cleveland’s codified ordinances makes it a second degree misdemeanor for elected officials and the city’s employees to fail to perform the duties of an office or to exceed the authority of the public offices they hold.
Nothing in the charter section transfers the authority of “the council” to the council president, whose official duties are created by Ohio law, Cleveland’s charter and more defined by council’s rules. Under Section 30 of Cleveland’s charter, the council president’s duties for the last 81 years have been limited to “presiding at meetings of the Council and perform such duties as presiding officer as may be imposed upon him by the Council.” All elected officials and public employees are “creatures of statute” according to numerous court decisions. They can’t perform anymore duties than the law authorizes.
Various subsections of council’s Rule 14 give the council president authority over committee assignments and the authority to remove members from committees.
Chapter 733 of Ohio’s revised code makes the council president the body’s executive authority, giving Sweeney the power to sign documents on behalf of council. That Ohio law is mirrored by council’s Rule 49.
Elected officials who have failed to master the exact and unambiguous language of the documents that govern their conduct routinely add non-existent interpretations and phrases to charter provisions and laws in order to justify their wrong acts. The manipulated information is then fed to reporters who rely on the spoken words of elected officials to share with their readers and viewers instead of the written words in the governing documents that rules their conduct.
Council Communications Director James Kopniske verified for Cleveland Challenger that Section 25-1 is the governing authority for the reapportionment process. The newspaper asked Kopniske to cite the law or rule that gives the council president the legal authority to draw ward boundaries with a consultant. Kopniske’s answer is lifted directly from the email he forwarded to Cleveland Challenger.
“As Council President, it is part of his duties to lead this process, much like his other duties with committee assignments, etc.,” Kopniske wrote. Cleveland Challenger underscored and boldfaced the words “lead this process.”
The preamble of Ord. 1610-10 that council approved on December 1, 2010 to give Dykes’ Triad an agreement valued at $175,000 reads, “An emergency ordinance authorizing the Clerk of Council to enter into an agreement with TRIAD Research Group, Inc. for professional services to assist City Council in the redrawing of the boundaries of statistical planning areas, neighborhoods, and wards in the City of Cleveland.”
The same language is repeated in Section 1 of the ordinance, but adds a very ambiguous statement that leaves its interpretation to anyone’s guess. “… and of such other areas as may be requested by the Council President or his designee.”
What’s clear, however, is that the charter and the language of the initial ordinance that awarded Triad Research Group a $175,000 agreement, and another ordinance extending that agreement past its December 31, 2012 deadline, spelled out that the intent of the voters and the legislation approved by council, was for the council and not the council president to redraw ward boundaries.
While Sweeney may have decided on his own to usurp the authority of the entire council, the limits on the council president’s authority would have given him no more authority other than to preside over the meetings where the plan was being discussed. Even as council president Sweeney only has one vote and is not “the council.”
Patmon said his control over council’s political war chest and the $133,000 he’s raised from contractors doing business with the city for his own campaign fund has intimidated lesser-funded council members into giving him what he wants. Many council members fear losing his financial support and are terrified that Sweeney could use his campaign funds to finance their opponents.
Since Section 28 of Cleveland’s charter spells out that all meeting of council are to be public, the idea of Sweeney conducting the city’s business not only away from the public, but without the input of council as well, does not appear to be the intent of the charter section the voters approved in May 2010, or the ordinance council approved with Triad eight months later.
Even in Kopniske’s explanation of Sweeney’s duties, the plain language of his email to Cleveland Challenger confirms that the council president can only officially “lead the process.”
Public records and media reports show Sweeney has recently engaged in activities that have sought to expand the council president’s authority based on his faulty assumptions and manipulation of the language of Cleveland’s charter and council’s rules.
Sweeney questionably evoked a subsection of Rule 14 to relieve Ward 2 Councilman Zachary Reed of his committee assignments after the elected official’s third “driving under the influence” arrest. Sweeney told reporters he did so to give Reed an opportunity to fight his legal battle and deal with his personal issues.
The rule says Sweeney can only remove council members from their committees “for cause.” It doesn’t say just because. Reed is not known for having an attendance problem or failing to perform his duties as an elected officer of the city. “For cause” is a legal term that is generally defined as “having a valid legal action.”
Sweeney also approached Reed about resigning his council seat after the council president lobbied to remove him from office under section 29 of the charter. Individuals who know the charter understood he was bluffing and misinterpreting it to his favor.
All the information Sweeney and the two-thirds of council who backed his empty threat needed to know about removing one of their colleagues is free online at Cleveland’s website. Section 29 of the Charter is included below.
“The Council shall determine its own rules and order of business and shall keep a Journal of its proceedings. It may punish or expel any member for disorderly conduct or violation of its rules. No expulsion shall take place without the concurrence of two-thirds of all the members elected nor until the delinquent member shall have been notified of the charge against him and been given an opportunity to be heard.”
The reason for removing a council member is contained in one 15 word sentence. It’s not a paragraph or a dissertation. It’s one sentence that Sweeney needed the director of law to explain to him and the two-thirds. In reality, Sweeney got hung up on two words: “disorderly conduct.”
Instead of reading the entire sentence together and including the words “for violation of its rules,” Sweeney ignored those five words, and the other eight, and focused only on the two words “disorderly conduct.” Sweeney then expanded the interpretation of the two words to include Reed’s off-duty DUI arrest at 2:30 a.m. That’s what he sold to the public through reporters who did not challenge his faulty conclusions.
City lawyers had to explain to Sweeney that the only time council can expel a member is for violation of its rules during the performance of his or her official duties during its proceedings. Cleveland’s voters can recall any elected official or file misconduct in office charges against them under Ohio Revised Code 3.07. Council, however, two-thirds or not, doesn’t have the unilateral authority to use whimsical misinterpretations of its rules to remove an officer who’s been duly elected in accordance with the city’s charter and Ohio law.
Sweeney’s been on council since January 1997. He’s in his 16th year. He’s council president and gets paid an extra $10,000 a year to master and enforce council’s rules, and to ensure that the mayor and city employees are complying with and enforcing Cleveland’s charter and codified ordinances in accordance with the administrative code and Ohio’s general laws. That’s $84,000 a year for a part-time job with extra duties to run meetings and sign documents.
Sweeney’s unauthorized expansion of the council president’s duties to hijack the process of redrawing council wards reeks of dereliction of duty under both Ohio law and ordinance 615.12(e). His reckless disregard for the limits on the council president’s authority makes council members individually and collectively derelict for failing to enforce the $175,000 contract with Triad Research Group and missing the December 31, 2012 deadline to have a new ward plan ready.
Since the agreement was entered with the Clerk of Council, it was Pat Britt’s duty to ensure that Triad Research Group complied. Sweeney’s authority-exceeding acts, particularly as Britt’s direct supervisor, can easily be viewed as his obstructing the official business of the council with his unauthorized interference.
Open meeting laws have been violated by Sweeney’s secret talks with Dykes. Whether intentionally or through negligence, Sweeney is running out the clock and forcing other officials to act without deliberation in order to meet the April 1 deadline voters placed on the council to reapportion the city’s wards. In reality, Sweeney’s acts of disorderly conduct fall within Section 29 of the charter that he tried to use against Reed. The question now is will he be held to the same standard for his own reckless and authority-exceeding behavior?