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Rural Water board votes to keep secret legal opinion on secret ballot


LAGRANGE — The Rural Lorain County Water Authority board voted Wednesday to keep secret a legal opinion detailing whether the board broke the law when it used a secret ballot to oust Pittsfield Township Trustee Mark McConnell in a May vote.

Attorney Dennis O’Toole, who authored the opinion, also said that if a board member were to leak the opinion that member could face possible legal ramifications. He said leaking the opinion would be similar to a public official revealing information discussed in executive session, something he argued is a crime.

After the meeting O’Toole said he wasn’t sure if it would be a crime to leak the opinion, but that it might be a breach of a board member’s oath of office.

“It’s a complex issue,” he said.

The board used secret ballots to remove McConnell during a May 15 meeting by a vote of 17-9. But a week later the board rescinded that vote and held a roll call vote in which McConnell was kicked off the board by a 13-11 margin.

McConnell was accused of making unfounded accusations against a fellow board member and lobbying to have other board members replaced, allegations he has denied.

McConnell, Pittsfield Township and nine other townships — including some whose Rural Water representatives voted to boot McConnell — have sued to have him reinstated and bar the board from removing members in the future.

O’Toole said he is bound by attorney-client privilege to respect the 15-8 vote keeping his opinion secret. He also said he can’t discuss whether his opinion concluded the use of secret ballots at the May 15 meeting was legal.

But he said he couldn’t find any appeals court cases in Ohio that dealt with the use of secret ballots and that there are conflicting opinions that have been issued by Ohio attorneys general on the issue.

A 1980 opinion stated that secret ballots are acceptable, while a 2011 opinion authored by Ohio Attorney General Mike DeWine said that secret ballots were improper and compared them to the illegal practice of voting on issues in executive session.

O’Toole and fellow Rural Water attorney Matt Dooley have pointed to the 1980 opinion, as well as the water board’s bylaws, to justify the secret ballots used in May.

Also at Wednesday’s contentious meeting, board President Stanley Wares suggested that several board members who are also township trustees from townships suing Rural Water may have broken Ohio ethics laws with their votes on an issue relating to the lawsuits.

Wares’ comment came immediately after the board voted 16-6 to have O’Toole and Dooley represent him and General Manager Tim Mahoney, who are named in their personal capacities as defendants in the lawsuit filed by the 10 townships.

Wares, who abstained from the vote on O’Toole’s advice, said those board members who voted as township trustees to sue Rural Water may have committed an ethics violation when they voted “adverse” to the water board’s interests Wednesday.

Although Wares didn’t specifically say who he was talking about and declined comment after the meeting, Rochester Township Trustee Amy Szmania said she believes Wares and his allies on the board set a trap for her and others suing Rural Water. She said after the meeting that Wares had a prepared statement on the issue.

“If he was going to say that, he should have said something beforehand,” Szmania said. “Our intention is not to do something wrong, our intention is to do what’s right.”

Szmania said she consulted with Assistant County Prosecutor Gerald Innes, who represents the townships, before voting in her capacity as a township trustee to sue Rural Water. He told her that was permissible, she said.

But Szmania said she never asked Innes about whether she would be allowed to vote on issues dealing with the lawsuit while she was sitting on the water board. She said if there was a conflict of interest then O’Toole should have pointed it out.

O’Toole, who only advised Wares to abstain when Wares asked him if he should opt out of the vote, said he hadn’t done the legal research to say whether Szmania and other township trustees who voted to sue Rural Water committed an ethical violation with their Wednesday votes.

Penfield Township Trustee Rick Conrad, who has backed McConnell and opposed paying for Wares’ legal defense, urged the board to try to settle the dispute and end the legal battle.

Wares, who previously pushed the board to come together, said it was too late for discussion and the quarrel needed to be sorted out at trial.

“This is ridiculous,” Conrad said.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.

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