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Controversy, Controversy,  Controversy

We made the newspaper again today.  For those of you that might not know the City hired retired State Senator and former judge Neal Zimmers to lobby for Huber Heights in Columbus.  I think a chronological posting of email messages is a good way for you to understand all the contention surrounding the lunch meeting that took place Jan 7th at TJ Chumps.
 
From: Neal Zimmers
Sent: Monday, January 06, 2014 4:31 PM
To: McMasters, Tom
Subject: Meeting

As you probably know, I do the government relations work for the city with
the State of Ohio departments and agencies as well as the legislature. I had
hoped to be in the city today but postponed due to weather advisories. I'd
like to get with you at our earliest opportunity to talk about our ongoing
efforts in Columbus and your ideas.
I left a message at your home phone, as well.
Congratulations on your election!
Neal Zimmers
 
 
From: McMasters, Tom [mailto:TMcMasters@hhoh.org]
Sent: Monday, January 06, 2014 9:28 PM
To: Neal Zimmers
Subject: RE: Meeting

Neal,

Thanks for reaching out.  I look forward to meeting you.  Tuesday (tomorrow)
I will be at city hall at 4:30 pm until the end of the administration
committee meeting.  If you would like to meet with the intention of ending
at 4:30 let me know how much time you think is appropriate and we can
schedule to start then.

Give me a call.  I expect to be at 937 656-8491 from as early as 7:30am
until the afternoon.

Sincerely,

Tom McMasters
Mayor of Huber Heights
937 985-6275 (H)
 
 
 
From: McMasters, Tom [mailto:TMcMasters@hhoh.org
Sent: Monday, January 13, 2014 7:44 AM
To: Neal Zimmers
Subject: RE: Meeting

Neil,

Thank you again for taking time to come out and talk with me.  It was a
pleasure meeting you and Billy. Reflecting on our conversation I feel I did
a poor job emphasizing that I generally hold a conservative view on
spending.  Though I was able to convey that my definition of conservative
would mean we would hope not to spend $250,000 putting down blacktop this
year and then tearing it out next year for a parking garage, my definition
would also include making sure that the city had sufficient funds to pay its
share of any of the projects before breaking ground on the project. I
recognize that timing may make it impossible to be an "absolute"
conservative.  Between you and me (and anyone paying attention to my
position) I don't believe council has done a good job showing the public we
have the funds to pay for the current construction costs of the music
center. Hopefully, I become aware of a logical fiscal path within the near
future.   

I've been attending council and committee meeting for over three years.  I'm
happy to convey that whenever council discusses your work they always rave
about your ability to assist the city in moving projects forward.  I welcome
the opportunity to learn from and work with you and anticipate a long
continuation of our positive relationship.  

Tom McMasters
Mayor of Huber Heights
937 985-6275 (H)
 
 
From: Neal Zimmers
Sent: Tuesday, January 14, 2014 10:29 AM
To: McMasters, Tom
Subject: RE: Meeting
 
Thanks, Tom. I/we look forward to working with you. We enjoyed meeting your
wife and handsome children.
NZ
 
Fast Forward to 2016
 
From: McMasters, Tom
Sent: Tuesday, December 29,
2015 8:37 AM
To: Glenn Otto; Janell
Smith ; Richard Shaw
Subject: Neil Zimmers
 
Has Neil Zimmers reached out to you to introduce himself yet?
 
Tom McMasters
Mayor of Huber Heights
937 985-6275 (H) 937 985-6431 (D)

From: Glenn Otto
Sent: Tuesday, December 29,
2015 9:01 AM
To: McMasters, Tom
Cc: Janell
Smith ; Richard Shaw
Subject:
Re: Neil Zimmers
 
No, I've not heard from him.
 
Glenn
 
From: McMasters, Tom
Sent: Tuesday, December 29,
2015 9:28 AM
To: Glenn Otto
Cc: Janell
Smith ; Richard Shaw
Subject: RE: Neil Zimmers
 
I've not talked with him for awhile and feel I should.  I am going to inquire when he next expects to be in town and ask if he will meet with me.  Would you like to be on the invite?
 
Tom McMasters
Mayor of Huber Heights
 
 
From: Glenn Otto
Sent: Tuesday, December 29,
2015 9:40 AM
To: McMasters, Tom
Cc: Janell
Smith ; Richard Shaw
Subject:
Re: Neil Zimmers
 
I would be more than happy to meet with Mr. Zimmers. Feel free to add me.
 
Glenn
 
 
From: McMasters, Tom
Sent: Tuesday, December 29,
2015 10:30 AM
To: Richard E. Shaw Jr; Glenn Otto; Zimmers, Neal
Cc: Janell Smith
Subject: Introduction
 
Neal,
 
I was glad to be 
able reach you via phone during this holiday season.  Next time you are planning to be in Huber Heights it would be great if we could arrange to meet again and also talk with as many of the new members of council as can conveniently attend.  Let me know when you are available.  Normally Tuesdays and Thursdays are my best days for a lunch meeting.  Wednesdays are my busiest days during work hours.
 
I look forward to talking with you again.
 
Happy New Year
 
Tom McMasters
Mayor of Huber Heights
937 985-6275 (H) 937 985-6431 (D)
 
From: Neal Zimmers
Sent: Tuesday, December 29,
2015 1:55 PM
To: McMasters, Tom
Subject: RE: Introduction
 
Thanks, Tom.
Will Jan. 7th work for you and others? If so, I'll look forward to the lunch
meeting then. Do you have a place in mind?
Best wishes for a Happy New Year to you and family.
Neal
 
 
From: McMasters, Tom
Sent: Wednesday, December 30,
2015 7:22 AM
To: Neal Zimmers
Subject: RE: Introduction
 
Neal,
 
All are looking forward to meeting with you, 11:30 Jan 7th at TJ Chumps on Executive Blvd.  See you there.
 
Tom McMasters
Mayor of Huber Heights
937 985-6275 (H) 937 985-6431 (D)
 

From: Schommer, Robert
Sent: Wednesday, December 30,
2015 6:54 PM
To: McMasters, Tom
Cc: Blankenship, Judy; Campbell, Mark; Dale, Lu; Dudley, Tracy; Lyons, Ed; Kaleps, Karen; Starline, Tyler; Vargo, Jan; Otto, Glenn; Shaw, Richard; Smith, Janell;
 
Subject: Scheduled Meeting with Mr. Zimmers
 
Mayor,
 
Good evening.  I was contacted late this afternoon by Neal Zimmers who informed me you had contacted him to set a meeting between you, Mr. Otto, Mr. Shaw and Mrs. Smith.  The meeting was to be held January 7th at TJ Chumps.  As Mr. Zimmers always does, he reports to me any activities conducted on the City's behalf, and this scheduled meeting came as a surprise.
 
This situation creates concern, as I believe the image of Council operations could be jeopardized.  Much like any other employee, contractor, vendor, etc. , I am happy to arrange any meetings or relay requests for information so there can be no concern about conduct or activities in conflict or being anything other than transparent.  If it is the desire of you or others to meet with and discuss City business with Mr. Zimmers, I will gladly arrange such a meeting which would likely be at a work session so other members of Council are included, and any discussions or deliberations can be conducted under proper public settings.
 
I told Mr. Zimmers I would get back in touch to let him know when we can schedule him at a committee meeting if you and/or other Council members so desire.
 
I appreciate the opportunity to assist keeping all of our activities professional, and please let me know how I can further assist.
 
Regards,
Rob
 
 
From: McMasters, Tom
Sent: Wednesday, December 30,
2015 7:04 PM
To: Schommer, Robert
Cc: Blankenship, Judy; Campbell, Mark; Dale, Lu; Dudley, Tracy; Lyons, Ed; Kaleps, Karen; Starline, Tyler; Vargo, Jan; Otto, Glenn; Shaw, Richard; Smith, Janell;
 
Subject: RE: Scheduled Meeting with Mr. Zimmers
 
Rob
 
Please send me a copy of the contract with Mr. Zimmers.
 
Thanks
 
Tom McMasters
Mayor of Huber Heights
937 985-6275 (H) 937 985-6431 (D)
 
 Note this quote from the contract:  "In performing these services, Z&A will report to the City Manager and members of City Council." 


From: McMasters, Tom
Sent: Wednesday, December 30,2015
7:15 PM
To: Schommer, Robert
Cc: Blankenship, Judy; Campbell, Mark; Dale, Lu; Dudley, Tracy; Lyons, Ed; Kaleps, Karen; Starline, Tyler; Vargo, Jan; Otto, Glenn; Shaw, Richard; Smith, Janell;
 
Subject: RE: Scheduled Meeting with Mr. Zimmers
 
Rob,
 
Two years ago after being elected 
Mr Zimmers contacted me and arranged to meet and introduce himself.  Please provide any record of your instructions to arrange that meeting, any record that shows you were aware of that meeting and any report given about that meeting.
 
Thanks
 
Tom McMasters
Mayor of Huber Heights
937 985-6275 (H) 937 985-6431 (D)



From: Lyons, Ed
Sent: Wednesday, December 30,
2015 7:36 PM
To: McMasters, Tom; Schommer, Robert
Cc: Blankenship, Judy; Campbell, Mark; Dale, Lu; Dudley, Tracy; Kaleps, Karen; Starline, Tyler; Vargo, Jan; Otto, Glenn; Shaw, Richard; Smith, Janell;
 
Subject: RE: Scheduled Meeting with Mr. Zimmers
 
Tom,
 
Then why was I not invited?  I was just reelected and my new
four year term starts January 1, 2016 as does Mr. Shaw, Mrs. Smith, and Mr. Otto.  Did I miss an invitation?   Please provide any record of inviting me or show that you intended on inviting me and any agenda that would show what we would be discussing in that meeting.  If not, then this does not seem like you are willing to work with all council members or is it just me?  Not a very good start to building a working relationship in 2016 with a new council, just saying...
 
My preference is to include all of
council in this meeting so we all get the same information at the same time.  After all, we should be open and transparent with no secret meetings while discussing city business which it seems like you are intending.
 
Roar for Openness!
Ed Lyons
 
 
From: McMasters, Tom
Sent: Wednesday, December 30,
2015 8:28 PM
To: Lyons, Ed; Schommer, Robert
Cc: Blankenship, Judy; Campbell, Mark; Dale, Lu; Dudley, Tracy; Kaleps, Karen; Starline, Tyler; Vargo, Jan; Otto, Glenn; Shaw, Richard; Smith, Janell;
 
Subject: RE: Scheduled Meeting with Mr. Zimmers
 
Ed,
 
As you should have been able to discern from the preceding email.  Mr. Zimmer contacted me upon my taking office and provided an introduction to himself and his services and expected this was his common practice.  Today, I was proactive in helping to arrange a similar introduction to facilitate what I naturally would have happened anyway.  Also, at our last
meeting Mr. Zimmer provided an open invitation for me to call and converse.  I thought this to be a good opportunity to efficiently take advantage of that invitation.
 
In my conversations with Mr.
Zimmer I've never discussed your relationship with him and feel bad for you if you feel left out.  However, I expect you are capable of developing that relationship yourself.
 
 
Tom McMasters
Mayor of Huber Heights
937 985-6275 (H) 937 985-6431 (D)
 
Note - there was a lengthy discussion on this subject at the work session Tuesday night  You can view the video from the City's Website. The discussion about this meeting started about 3:22:00 into the video. 
 
Although the discussion was complete the City Attorney felt the need to on his own spend city money to give us the same information that was presented at the meeting.
 
From: Schaeffer, Alan
Sent: Wednesday, January 06, 2016 4:48 PM
To: McMasters, Tom; Campbell, Mark; glenn.otto@yahoo.com; Blankenship, Judy; Lyons, Ed; Dudley, Tracy
Cc: Rodgers, Anthony; Schommer, Robert
Subject: Zimmers Meeting
Dear All, Please see attached dealing with the scheduled meeting with Mr. Zimmers. Any questions let me know.
Alan
 
 
--------------------------------------

Dear Mayor  & Council Members
At last night’s work session meeting it was noted that a meeting has been scheduled by the Mayor with our lobbyist in Columbus, Neal Zimmers, which meeting is scheduled for tomorrow January 7.
 
As I understood the discussion the Mayor indicated that he has had one previous private meeting with Neal Zimmers that occurred some two years ago at his house. The Mayor after two years wanted to re-acquainted himself with Neil and therefore scheduled this meeting on January 7. It then occurred to Tom that it might be worthwhile to invite the three new members of Council elected in November 2015 to the meeting.
 
The meeting is scheduled to occur at a local restaurant in Huber Heights, tomorrow.
 
During the brief
discussion it was stated that the meeting with Mr. Zimmers is open to anyone from counsel who would like to attend.
 
The discussion then very quickly switched to whether or not there might be a problem with the Open Meeting Law.
 
I want to address this issue with you as I said I would during the discussion last night. Keep in mind that I have the benefit of giving more thought to the subject, have been able to research the issue and think through my answer. There is probably more here than you want but I am in part giving it all to you because what appears to be a rather simple question quite often is anything but simple to answer given the laws, rules and regulations under which you as public officials operate.
 
Briefly stated The Ohio Public Meeting Act at 121.22 of the Ohio Revised Code requires "public bodies" to conduct their business in "meetings" "that are open to the public. A "meeting" is any prearranged gathering of a public body by a majority of its members to discuss public business.
 
The Huber Heights City Council
is in fact a "public body" subject to ORC 121.22 of the Ohio revised code.
 
A majority of
counsel in the case of Huber Heights would be five members of council. For purposes of 121.22 a majority of the members of a public body applies to the public body as a whole. Our charter also speaks to this issue at section 4.12.
 
So, does a meeting of a majority of
counsel (5+) that has been pre-arranged to meet with a contractor to the City to discuss public business constitute a "public meeting" that requires giving at least 24 hours advanced notice and defines the purpose of the meeting?
 
The Bible when it comes to the interpretation of the  Ohio Public Records Act and the Ohio Open Meetings Act is the Ohio Sunshine Laws Resource Manual prepared annually by the Ohio Attorney General. In that
manual it speaks to just what the above question is asking. Rather than paraphrase I am going to include that portion of the manual that addresses the issue for your edification.
 
In evaluating whether particular gatherings of public officials constituted “meetings,” several courts of appeals have opined that the Open Meetings Act “is intended to apply to those situations where there  has  been  actual  formal  action  taken;  to  wit,  formal  deliberations  concerning  the  public business.”877         Under  this  analysis,  those  courts  have  determined  that  gatherings  strictly  of  an investigative and information-seeking nature that do not involve actual discussion or deliberation of public business are not “meetings” for purposes of the Open Meetings Act.878    More importantly, the Ohio Supreme Court has not ruled as to whether “investigative and informational” gatherings are or are not “meetings.”   Consequently, public bodies should seek guidance from their legal counsel about how such gatherings are viewed by the court of appeals in their district, before convening this kind of private gathering as other than a regular or special meeting.
 
 
 
878    Holeski v. Lawrence, 85 Ohio App.3d 824, 829 (11th Dist. 1993) (where the majority of members of a public body meet at a prearranged
gathering in a “ministerial, fact-gathering capacity,” the third characteristic of a meeting is not satisfied there are no “deliberations” occurring);

Theile v. Harris, No. C-860103 (1st Dist. 1986) (a prearranged discussion between a prosecutor and the majority of township trustees did not
violate Open Meetings Act because the gathering was conducted for investigative and information-seeking purposes); Piekutowski v. S. Cent.
Ohio Edn. Serv. Ctr. Governing Bd., 161 Ohio App.3d 372, 379, 2005-Ohio-2868, ¶¶ 14-18 (4th Dist.) (it is permissible for a board to gather
information on proposed school district in private, but it cannot deliberate privately in the absence of specifically authorized purposes); State ex
rel. Chrisman v. Clearcreek Twp., 12th Dist. No. CA2012-08-076, 2013-Ohio-2396 (2013) (while information-gathering and fact finding meetings
for ministerial purposes do not violate the Open Meetings Act, whether or not a township’s pre-meeting meetings violated the Open Meetings
Act was a question of fact where there was conflicting testimony about whether the meetings were prearranged, what the purpose of the
meeting was, and whether deliberations took place).                   
 
Those courts that have distinguished between “discussions” or “deliberations” that must take place in public, and other exchanges between a majority of its members at a prearranged gathering, have opined that the following are not “meetings” subject to the Open Meetings Act:
 
•   Question-and-answer  sessions  between  board  members,  the  public  body’s   legal counsel, and others who were not public officials, was not a meeting because a majority of the board members did not engage in discussion or deliberation of public  business with one another;879
•   Conversations among staff members employed by a city council;880
 
•   Informal,  not-prearranged e-mail  discussions  among  board  members  of  an  issue  of public concern;881
 
•   A presentation to a public body by its legal counsel when the public body receives legal advice;882  and
•   A press conference.883
 
879 Cincinnati Enquirer v. Cincinnati Bd. of Edn., 192 Ohio App.3d 566, 2011-Ohio-703 (1st Dist.) (in the absence of deliberations or discussions by board members during a nonpublic information-gathering and investigative session with legal counsel, the session was not a “meeting” as defined by the Open Meetings Act, and thus was not required to be held in public); Holeski v. Lawrence, 85 Ohio App.3d 824, 830 (11th Dist. 1993) (“The Sunshine Law is instead intended to prohibit the majority of a board from meeting and discussing public business with one another.”).
880 Kandell v. City Council of Kent, 11th Dist. No. 90-P-2255 (1991); State ex rel. Bd. of Edn. for Fairview Park School Dist. v. Bd. of Edn. for Rocky River School Dist., 40 Ohio St.3d 136, 140 (1988) (an employee’s discussions with a superintendent did not amount to secret deliberations within the meaning of R.C. 121.22(H)).
881 White v. King, 5th Dist. No. 14CAE020010, 2014-Ohio-3896, ¶¶ 23-26.
882 Cincinnati Enquirer v. Cincinnati Bd. of Edn., 192 Ohio App.3d 566, 2011-Ohio-703 (1st Dist.); Theile v. Harris, No. C-860103 (1st Dist. 1986).
883 Holeski v. Lawrence, 85 Ohio App.3d 824 (11th Dist. 1993).  
 
 
 
The Second Circuit Court of Appeals in which the City of Huber Heights is located has not ruled on this issue. Furthermore it is instructive that the AG specifically points out that the ultimate authority, the Ohio Supreme Court, has not ruled on this issue. Thus we have a situation where we are depending up on the decisions of three or four other circuit courts of appeal in Ohio and interpreting whether or not this meeting with Neal Zimmers constitutes a "public meeting".
 
In 2015 the City was engaged at times in a rather contentious election process. As Law Director I was called upon a number of times to decide whether or not allegations concerning behavior constituted a violation of any law. In some of those cases I had to concede that there was certainly an odor about the behavior although I never found any law had been violated.
 
My point in making this reference is that there certainly is an odor to this meeting scheduled for tomorrow in the sense that Councilmembers are meeting with a city contractor, the meeting has not been formally advertised, no minutes will be taken of the meeting so how will anybody know whether or not the councilmembers "deliberated" at any time during this meeting? Etc., etc.
 
The risk is that a majority of counsel does attend the meeting ( there is risk even if a majority of counsel doesn't attend) and that there are deliberations between and among the attending council members of any nature.
 
Why take the risk?
 
The AG advises that you seek legal counsel.  My advice is that the meeting  with Mr. Zimmers scheduled for tomorrow be cancelled and be rescheduled as a properly scheduled public meeting. 


If you have any questions please don’t hesitate to contact me.
 
Alan
 
----------------------------------------------

From: McMasters, Tom
Sent: Wednesday, January 06, 2016 7:42 PM
To: Schaeffer, Alan; Campbell, Mark;  Blankenship, Judy; Lyons, Ed; Dudley, Tracy
Cc: Rodgers, Anthony; Schommer, Robert


Subject: RE: Zimmers Meeting
Alan,
 
Your analysis is a repeat of how the discussion ended last night.  The primary concern is if other council members happen to eat at TJ Chumps tomorrow we will have to ensure that we all don't gather together.  
 
As for the concern that somehow the public might not know that we have a lobbist and that he communicates with council, I'll make a point to blog about it in the context of our meeting tomorrow.  I got your voice mail and heard a third concern about Mr. Zimmers driving all the way down here for a meeting.  When I first contacted him I made it clear that our meeting would be arranged around some other time that he already planned to be in the Huber area.  I certainly expect that to be the situation tomorrow.  With that said though I don't know when or what that other committment might be and for other council members that desire to speak with Mr. Zimmers it may not be to late to contact him and also arrange another time in the day to meet.  Though I'm not expecting to eat and run I will be taking lunch during the work day and would expect to leave about 12:30.
 
 
 
Tom McMasters
Mayor of Huber Heights
937 985-6275 (H) 937 985-6431 (D)
 
 
From: Schaeffer, Alan
Sent: Thursday, January 07, 2016 11:27 AM
To: McMasters, Tom; Shaw, Richard; Smith, Janell; Campbell, Mark; Otto, Glenn; Blankenship, Judy; Lyons, Ed; Dudley, Tracy
Cc: Rodgers, Anthony; Schommer, Robert
Subject: RE: Zimmers Meeting
Dear Tom,
 
I had hoped that my analysis would have been received as including a much greater emphasis on the risk factor i.e. that the meeting itself would be best rescheduled for presentation at a publically scheduled meeting of all of Council. I don’t think our oral discussion, such as it was, came close to dealing with the issues as set forth in my memo.
 
The reason I called you in addition to sending you the email dealt with the lateness of the email. I, of course, did not know the scheduling arrangements that had been made. Again the call was meant to make sure you saw the email in a timely fashion and you did.
 
I would note that posting the meeting on your blog, after the fact, doesn’t deal  with the issue of holding a meeting that was 1) prearranged 2) a majority of council attended 3) business of the City was discussed without it being properly advertised from a time standpoint and a purpose standpoint which makes it in violation  of the Public Meeting Law.
 
The primary concern is if other council members happen to eat at TJ Chumps tomorrow we will have to ensure that we all don't gather together.  
 
 
You comment above is of concern in that if a majority of Council sits in on the same meeting you have a Public Meeting problem. If a majority of Council is in the same facility but not interacting and not engaged in any way with each other during the entire time that all are present in the same facility AND no council member or 3rd party is moving back and forth between the 2 meetings then it might not be a problem. If however the 3rd party or a council member after the fact communicates what happened in the meeting with the 3rd party to the non-participating group of council members then you very well may still have a problem.
 
The issue of compliance becomes very complicated very quickly and especially since the Supreme Court has not yet ruled on the fact pattern we are dealing with the clear and best approach is simply having a public meeting and inviting the 3rd party to attend.
 
Any questions let me know.
 
Alan
 
P.S. Again I apologize for the lengthiness of my response but it is complicated and it is important that you all know it is complicated and risky.
 
Alan
 
 
From: McMasters, Tom
Sent: Friday, January 08, 2016 12:15 AM
To: Schaeffer, Alan
Subject: RE: Zimmers Meeting
Alan,
 
The concern about too many council members at TJ Chumps at one time did not come into fruition and the public meetings law was not violated. 
 
Tom McMasters
Mayor of Huber Heights
937 985-6275 (H) 937 985-6431 (D)
 
 
The reporter for the DDN had all this information when he decided to write the article that he wrote.  








 

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