PSE should not be given an extension on the City Attorney Contract

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I provided the following read ahead material for the discussion on the City Attorney Contract:

Even after the change in the person named to be the City Attorney, Pickrel, Scheaffer & Eberling has provided biased advice detrimental to the best interest of the City and I recommend terminating the working relationship. 
  1.  The office of Pickrel, Scheaffer & Eberling chose to endorse the City Manager’s inappropriate use of his position as Chief Executive Officer of the City and failed to warn him to stop utilizing his official position to attack the reputation of members of council.  The representatives of Pickrel, Scheaffer & Eberling failed to pursue reasonable protections for members of council from physical violence. 
  1. Attached are emails generated in response to Mr. Schommer’s complaint against Council Member Smith in which among other things asserts, “… Rob has extensive experience in police work and believes Ms. Smith’s behavior could foreshadow more violent outbursts on her part.  Rob has an obligation to protect his family, his staff and frankly himself from threats such as these.”  To support his claim of Ms. Smith’s outbursts Mr. Schommer bragged of recordings.  When pressed for the recordings he submitted one voice mail message.  In no way would this voice mail prompt the kind of fear expressed by Mr. Schommer in his letter.  The voice mail is also included in this package.  
  1. All available evidence suggest Mr. Schommer was and is willing to fabricate allegations for his own personal agenda and the firm of Pickrel, Scheaffer & Eberling had an obligation to put him and his lawyer on notice that type of behavior is not consistent with his duties and position.  Additionally, absent his recanting of expressed fear, the law department had an obligation to accept the paranoia he articulated might be real.  The law department had an obligation to pursue avenues to mitigate the possibility Mr. Schommer might act aggressively based upon dangers unjustifiably created in his mind.   
    1. In 2008 Ms. Smith was arrested for battery.  You can see the charges were dismissed by going to… and  searching case number 91D01-0806-CM-00358 

      If you search Facebook you likely can find a description of what happened.  The copies of the report that are circulating do not appear appropriately redacted to be obtained by someone authorized to spread them around.  Though the battery charge should be considered when evaluating if Mr. Schommer could legitimately be afraid it would be hard to believe the narrative found in this police report would cause that fear.   

      Keep in mind Ms. Smith has been incredibly hateful toward me most of the last couple years.  There was a ceremony at the Music Center where she overstepped her bounds considerably and when I addressed the issue with her, instead of responding in a logical manner she hyped up the incident in such a way it caused friends of mine in the VFW and Young Marines to engage in actions that subverted some of the positive actions I hoped for those organizations and the city.  Her lashing out on Facebook and the newspaper with other mischaracterizations was continuous.  {Smith disagreed, telling this newspaper that “giving birth in a Muslim country” was less oppressive than serving as a council member under the mayor. }   As grating as it is to be around Ms. Smith, I have never been scared that she would attack me or my family violently.   .

  1. The office of Pickrel, Scheaffer & Eberling fails to advocate for policies that protect the reputation of the City from inferences of graft and corruption.
  1. Many of the irregularities that pointed to a concerted effort to favor one potential company over the others during the selection of the Energy Aggregation Company happened before the current PS&E representative became the named City attorney:  The failure to post complete bid responses of a non-favored bidder, circulating misleading information from the favored bidder that impugned other bidders proposals, providing notice to the favored bidder that was not provided to other bidders, providing incorrect calculations inflating the favored bidders results, and recommending the favored bidder even though other bidders performance showed an ability to negotiate better savings to residents, all occurred while the other PS&E representative was the city attorney.  However, the current representative did not include language in the contract that would have required the favored company to act in the best interest of the city.  Also, when asked to ensure the contract contained language that limited the company to the compensation found in the winning company’s proposal, smoke screen language in other documents was added that would allow those easily influenced to be fooled into believing this limitation was agreed to, when in fact there was no such legal limitation.
  1. The advice and interpretations of the Ohio Sunshine Law provided by the office of Pickrel, Scheaffer & Eberling encourages conversations that are not trackable and may lead to situations where one or two unscrupulous people can manipulate council and public policy.
  1. The Ohio Sunshine law is designed to provide the public with assurances government offices are acting in an open and transparent manner.  Though the courts have concerns about email discussions not providing enough transparency, email discussions do count as public records and are subject to records requests when they concern public business.  The concerns expressed by the courts deal with timeliness.  Those concerns could easily be resolved by giving the public immediate access to those conversations and publicly announcing the method for gaining that access.
  1. Instead the office of PS&E discourages the utilization of a method subject to public records requests in favor of an approach where information is funneled to council from one source such as the City Manager, City Attorney or Clerk of the Council.  An unfortunate result of following this advice is many members of council choose to get that information through methods not subject to public records requests such as personal meetings or telephone calls.  This allows for one public entity, such as the City Manager or City Law Department to influence the policy’s implemented by another public entity, City Council, in a non-public forum and generally through methods not subject to public records requests. 
  1. As an example, during the selection of the Energy Aggregation Company, while we were alone in the conference room one afternoon, Mr. Schommer started a conversation that included details about the bid opening process.  In this conversation, he specifically talked about the company whose proposal and communications were superior to the company recommended by staff.  Mr. Schommer relayed that the representative talked about the support his team would bring to our community that would be over and above that found in the agreement.  During Mr. Schommer’s description, I had the impression the representative was talking about participation in city events, possible sponsorships and grants, advocating conservation programs.  But Mr. Schommer ended that conversation with a statement similar to, “we would not want any of that” which was said in a manner to purposely give the impression the representative was offering him something contrary to the law or perhaps something else dishonorable.  The advice given by PS&E concerning open meeting laws allows for this kind of influence to be tailored and presented individually to each member of council, outside of public scrutiny, even though having this kind of conversation clearly is detrimental to public debate and denies the public a chance to understand decisions made by council.


Email - 28 July 2017, To City Attorney requesting him to take action on Mr. Schommer's allegations

Email - 24 July 2017, City Attorney cc'd, original response to Schommer complaint about Ms. Smith

Attachments to 24 July email:

00 - Schommer Complaint v Smith July 2017 draft.docx - Draft of Complaint response that was provided as an attachment to the email

References from the draft complaint:

01 - Schommer Complaint Smith July 2017.pdf 

02 - Attorneys classifying complaint as a complaint.pdf

03 - Complaint - Initial Email 12 July 2017.pdf

04 - Complaint - attempt to pull from established complaint process.pdf

05 - 2017 Rules of Council.pdf

06 - City_of_Huber_Heights_Personnel_Manual_January_2017.pdf



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