Full steam ahead

Not wanting to overly engage in political matters during Fair Week, this commentary was intentionally delayed for a few days.

However, given the considerable number of people who have requested my opinion on this matter, I almost feel obligated to either write it or state, upfront, that I don't "do requests."

Frankly, the questions probably would be best put before the Ohio Ethics Commission. And maybe they have. If so, I would gladly publish the OEC's opinion.

The topic of the day was this: What are your thoughts on the mayor of Hillsboro entering into an agreement with the Paint Creek Joint EMS/Fire District for the sale of a portion of one of his properties – specifically, the former Hillsboro Fire Department at the corner of High Street and occasionally passable Governor Trimble Place?

(Two of these requests, by the way, came during the Highland County Fair by local elected officials in front of a number of people.)

First, like Mark Twain, I've tried to live a reasonably decent life so that God would not make me a lawyer. Wait, that's not right. Mr. Twain said that about newspaper editors, didn't he?

Regardless, you won't get any legal advice here. My opinion on the matter is this: The mayor has, perhaps, successfully tip-toed around the spirit of the Ohio Revised Code.

That does not imply – nor should readers infer – that the mayor has violated the ORC as the law relates to the sale of a portion of one of his privately held buildings. He has not.

Besides, the majority of local Republicans and cross-over voters could not care less. Why should anyone care if someone else manages a personal profit? Laws are subjective, aren't they? (Please note the usage of our John Tallieu sarcasm font in this paragraph.)

Didn't Lincoln say something about remaining silent? Or was that Edmund Burke? Ah, we really do get the government we deserve, don't we?

OK. Just for review, let's take a look at the Ohio Revised Code; Divisions (D) and (E) of Revised Code Section 102.03 provide: 

(D) No public official or employee shall use or authorize the use of the authority or influence of his office or employment to secure anything of value or the promise or offer of anything of value that is of such a character as to manifest a substantial and improper influence upon him with respect to his duties.  

(E) No public official or employee shall solicit or accept anything of value that is of such a character as to manifest a substantial and improper influence upon him with respect to his duties. 

The term "public official or employee" is defined, for purposes of Chapter 102, in R.C. 102.01 (B) and (C), to include any person who is an official or employee of any department, division, institution, board, commission, authority, bureau or other instrumentality of the state.

The term "anything of value" is defined for purposes of R.C. 102.03 to include money, goods, chattels, any interest in realty, a promise of future employment and every other thing of value.

See R.C. 102.01 (G) and 1.03. The commission has, for example, identified travel, meal and lodging expenses as falling within this definition of "anything of value." See Ohio Ethics Commission Advisory Opinions No. 84-010, 86-011, 87-005, 87-007, 89-013, 89-014 and 90-001.

Similarly, a discounted or free ticket for airline travel or any other discounts fall within the definition of "anything of value" for purposes of R.C. 102.03.  

A public official or employee is prohibited, by R.C. 102.03 (D) and (E), from accepting, soliciting or using the authority or influence of his/her position to secure anything of value, where the thing of value is of such character as to manifest a substantial and improper influence upon his/her with respect to his/her official duties.

The Ohio Ethics Commission has held that Divisions (D) and (E) of Section 102.03 of the Ohio Revised Code prohibit a public official or employee from accepting, soliciting or using the authority or influence of his/her position to secure anything of value or the promise or offer of anything of value from a party that is interested in matters before, doing or seeking to do business with, or regulated by, the agency with which he/she serves. 

A public official or employee is also prohibited from accepting, soliciting or using the authority or influence of his/her position to secure anything of value that could otherwise impair the official's or employee's objectivity and independence of judgment with respect to his/her official duties.

Perhaps, the term "anything of value" is the old bugaboo here. Then again, maybe it is the "influence of position" clause. Perhaps a local lawyer would like to weigh in on the discussion.

If a discounted or free ticket for airline travel might get a public official in hot water – or, as former Ohio Gov. Bob Taft discovered, an undisclosed round or two of golf – then maybe all public officials ought to think twice about entering into any of these business arrangements. (And they should.)

In the mayor's defense, Highland County Prosecutor Anneka Collins told me this week that a spokesperson from the Ohio Ethics Commission said that "as long as there was a clause allowing the contract to be vacated upon the city joining the Paint Creek Joint EMS/Fire District (should they vote to do so) there is no problem."

Having actually paid attention at six years' worth of ethics training sessions as a former Ohio public official, I can tell you that lawyers from the Ohio Attorney General's Office and the Ohio Ethics Commission often like to use this familiar phrase: "Does it pass the smell test?"

My last ethics training session was less than a year ago. November 10, 2011, to be exact.

State AG attorney Mia Meucci Yaniko provided the training. She walked those of us in attendance through several of those "what if" scenarios. We were supposed to guess which of the hypothetical situations were legal, ethical, possibly legal but borderline unethical or altogether illegal.

Some of the described situations were easy to categorize. Some were not. Mia did her best to separate the legal ramifications from the ethical ones.

At one point, I recall using the "smell test" phrase in my response.

"Exactly," she said. "It doesn't pass the smell test."

In other words, if you have to ask a lawyer or two (particularly those who are paid by tax dollars) if you can do something as a public official as it relates to your private enterprises, perhaps you shouldn't do it.

At the very least, city taxpayers probably shouldn't foot the bill for such legal advice. It also might be suspect to seek personal legal advice from one's appointed underling.

Of course, there are those who might ask why any of us should care. Aren't laws meant to be broken? Constitutional law doesn't matter. Does it? It's all subjective to the whim of the judge of the day. Right?

Well, if that's an accurate assessment, it shouldn't be.

Perhaps, the term "anything of value" is, once again, the old bugaboo here. Then again, maybe it is the "influence of position" clause.

I may ask Counselor Yaniko if she thinks this scenario passes the proverbial "smell test."

• On June 2, 2012, the Hillsboro mayor met with the Paint Creek Joint EMS and Fire District Board in a special session on a Saturday morning. The mayor was invited to join the board in executive session.

• Some members of Hillsboro City Council said they were not aware of the mayor's attendance at the Paint Creek Joint EMS and Fire District Board executive session on June 2.

• Less than three weeks later, on June 19, 2012, the Hillsboro mayor recommended to the Hillsboro City Council that the city contract with the Paint Creek Joint EMS and Fire District at $600,000 per year for three years, with the option to extend for one year.

City council later rejected the mayor's proposal.

However, on June 29, 2012, in a 2-1 vote, the Liberty Township Trustees voted to join the Paint Creek Joint EMS and Fire District Friday – in spite of a last-minute suggestion from a Hillsboro councilman that the trustees hold off on a decision.

Hillsboro City Council member Pete Pence told the trustees that the city was going be having labor talks with the union of Hillsboro Fire and Rescue, and depending on what concessions were reached, there may be a chance that the city would consider a contracting situation with the townships.

"We have to make a decision," Liberty Trustee Jerry Williams said at the June 29 meeting. "You wait until the day of the meeting and then tell us this? We haven't heard from the city in six weeks. … I'm sorry, that's not good enough."

Liberty Township moved forward. Paint Creek Joint EMS/Fire promised a local substation.

The mayor of Hillsboro had space available. The Paint Creek district liked it.

Conflict of interest? Probably not, but that's not up to any local newspaper editor to say.

Is there an appearance of a conflict or incompatibility? Perhaps.

Why?

Glad you asked.

• How many sitting mayors have negotiated sales or leases of his or her private property for more than a quarter-million dollars of taxpayers' money? (Keep in mind that this comes on the heels of the receipt of another quarter of a million dollars for taxpayer-funded renovations of his private property.)

• How many sitting mayors have sought – and received – property tax reductions on their personal property, only to sell it at a 300-percent profit from the purchase price in the same year the county Board of Revision (Shane Wilkin, Bill Fawley and Vickie Warnock) approved the tax reduction? (Moreover, the building owner still keeps part of the property.) Also, according to the Highland County auditor, the owner's mailing address for these property taxes is outside the city of Hillsboro.

Highland County Auditor Bill Fawley said this week the decision earlier this year to approve a property tax reduction for the mayor's property will be revisited, given the amount of the sale price.

• How many previous mayors have private-public property leases to the tune of $28,680 a year paid for by the taxpayers? (According to the Ohio Department of Administrative Services, that's the annual lease to the Adult Parole Authority offices in uptown Hillsboro.) Granted, that contract preceded his election to public office.

When you add in the mayor's annual salary – another 25 grand or so – one might determine he is either a very shrewd capitalist (at least since moving to New Market Township a few years ago), or he has enjoyed considerable good fortune, courtesy of the taxpayers' generosity.

In spite of that considerable good fortune, as of a Sept. 6 correspondence from Hillsboro City Auditor Gary Lewis, the city code for sign permits and the application fees had been ignored by the mayor's occupants in the former city building.

"The Paint Creek Joint EMS/Fire has not yet returned a sign permit/application along with payment for such. Debbie Sansone has advised me that they were told to do so prior to hanging a sign. They will be contacted and reminded of their need to do so," Lewis said.

Lewis also said: "There has been no sign permit/application along with payment for the awnings mentioned (along Governor Trimble Place). It is my understanding that the owner of the property was not aware of the need to do so for an awning. Apparently, John Hern (who serves on the city's sign permit committee) mentioned this to the administration and the application will be made today."

For all of the local businesses who have been in compliance with the city law and its related fees and applications, this is a rather nice "how do you do," one might think.

Mostly, all of this boils down to the court of public opinion. If city taxpayers, voters and business owners are pleased with the administration's first eight months – and the personal profits derived therein – well, full steam ahead in the next three years.

Rory Ryan is publisher of The Highland County Press.