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writers e-mail:
szeman@hsklawyers.com



June 13, 2014

Sara J. Fagnilli, Esq.
Walter Haverfield LLP
1301 E. 9
th
Street, Suite 3500
Cleveland, Ohio 44114-1821

Re: City of Richmond Heights

Dear Ms. Fagnilli:

I am writing to you as I am Mayor Headens appointed Director of Law. As I write this,
Council has not yet acted to disapprove that appointment. For reference, the Mayors
appointment was made pursuant to her power of appointment contained in Article VI,
2(a) of the Charter: The Director of Law shall be appointed by the Mayor subject to
approval of a majority of the members of Council.
While I wait on Councils decision, I am nonetheless a mayoral appointment and am acting
under that inherent authority with a limited purpose and intent because it appears the
Council will not approve any mayoral appointment, including me, unless you approve the
confirmation ordinance. Since my appointment apparently is contingent on you acting in
a favorable manner related thereto, I thought I would write and let you know that I do not
agree with this analysis; it is unlawful, and a legal action against Council is imminent.
I understand that you drafted Ord. No. 39-2014. It raises serious legal issues, specifically,
that it is unlawful and void.
Article VI, 2(b) of the Charter establishes the duties of the Director of Law:
Duties. The Director of Law shall serve the Mayor, the various
administrative departments, boards, and officers of the Municipality in all
proceedings in court or before any administrative body. He, or such
assistants as Council may provide, may act as prosecuting attorney before
the Mayors or other courts or upon appeals from the decision of the Mayor.
He shall perform all other duties now or hereafter imposed by law upon
directors of law of municipalities unless otherwise provided by ordinance of


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Council, and shall perform such other duties as the Council or Mayor may
require consistent with the Directors office.
The Citys Code, at 135.02, further details those duties:
The Director of Law shall serve the Mayor, Council and the various
administrative departments, boards and officers of the Municipality in all
proceedings in court or before any administrative body. He shall perform all
other duties now or hereafter imposed by the Charter or by general law upon
solicitors of municipalities unless otherwise provided by ordinance of
Council, and shall perform such other duties as Council or the Mayor may
require consistent with his office.
Ord. No. 39-2014 takes all of the powers and duties of the Law Director and attempts to
vest them in a new position of special counsel. Per the ordinance, special counsel reviews
and drafts legislation; provides legal advice to the Council, Mayor, department heads,
boards and commissions; attends all meetings; and all other services customarily
performed by legal counsel for municipal corporations under the laws of the State of
Ohio. All of which is exactly what the Law Director does. The additional services include
litigation; drafting contracts; services related to public construction projects; Charter
revisions; drafting new codes and revisions to existing codes; real estate matters; and
collective bargaining matters.
It is such a comprehensive list that the conclusion is inescapable that this special counsel
appointment is intended to be a permanent replacement for the Law Director.
There are no shortage of legal issues with this ordinance, but just to highlight the major
ones, I will start with the fact that it is contrary to Article IV, 9(a) of the Charter insofar as
it attempts to assign the duties of the Law Director to the new position of special counsel:
The Council by ordinance may assign additional functions or duties to offices,
departments or agencies established by this Charter, but may not discontinue or assign
to any other office, department or agency any function or duty assigned by this Charter
to a particular office, department or agency.
The ordinance was also passed in violation Richmond Heights Codified Ordinance
121.22, which states:
(a) Approval. A legal opinion on all ordinances, resolutions and contract
documents shall have been rendered as to form and legality by the Director
of Law or his authorized representative, before passage by Council.





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Again, I was the appointed Law Director at the time of enactment of this ordinance. If
anyone had even an arguable legal right to review and approve this ordinance, it would
be me. I did not render any legal opinion on this ordinance and, if I had, I think the
discussion contained herein is clear with respect to what that opinion would have been.
The Code, in 135.03, also details how special counsel may be appointed:
When it becomes necessary or advisable, in the opinion of the Mayor or
Council, to employ assistants and/or special counsel to assist the Director
of Law in the performance of his duties, the Mayor, with the approval of
Council, shall be authorized to employ such assistants and/or special
counsel, including any law firm with which the Director may be connected
or a member, and to agree, on behalf of the Municipality, to pay such
assistants and/or special counsel such reasonable compensation as shall
be approved by Council. (Emphasis added).
The above section is clear that the Council has no power to unilaterally appoint special
counsel. It is also explicit that special counsel assists the Law Director, special counsel
does not act independently of that office. In further reference to Ord. No. 39-2014, it must
be noted that this new position of special counsel may only be terminated by the Council.
The ordinance has no end date for this appointment. It is, in substance, permanent unless
the Council decides to terminate it. It therefore fully usurps the power and duties of the
Law Director contrary to the Charter and general laws.
Ord. 39-2014 also purports to enter into a contract for your special counsel services. The
Finance Director has not issued a certificate of available funds for this expenditure as
required by law. The Charter is explicit in Article IV, 3(h) that any contract, agreement or
other obligation entered into contrary to this requirement is void not merely voidable.
This Charter provision is consistent with the general laws and case law discussing same
is clear that a municipality has no duty to honor a contract entered into in violation of such
law. Further, R.C. 5705.41 prohibits the issuance of any warrant in payment for such
void contracts.
Regardless of what someone may ask of an attorney, there is an obligation to never act
contrary to law. There are serious questions related to why you would undertake
representation under these circumstances.
Richmond Heights is now in a Charter crisis over this issue. The courts will have to sort it
out.



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If there is any way as the Mayors appointee to help resolve this issue, I am more than
willing to help however I can. The reality is that if Council disapproves my appointment,
the Mayor will have to appoint an alternate. And if Council disapproves that appointment,
she must appoint yet another Law Director. And so on it may go. I hope that no one
expects Council will simply have its own de facto law director performing all of the Citys
legal work and being compensated for same as this plays out. It will not be so easy and
it will only result in further legal entanglements of a very serious nature.
Thank you.
Very truly yours,



Joseph P. Szeman
Hennig, Szeman & Klammer Co., L.P.A.