PICKREL, SCHAEFFER AND EBELING

A LEGAL PROFESSIONAL ASSOCIATION

2700 KETTERING TOWER
40 NORTH MAIN STREET

DAYTON, OHIO 45423-2700

937/223-1130
FACSIMILE 937/223-0339

www.pselaw.com

MEMORANDUM

To: Mayor Ron Fisher

Council Members:
Judy Blankenship
Mark Campbell
James C. Ellis
Roger Hensley
Karen Kaleps
Jan Vargo
Roshawn Winburn

From: Alan B. Schaeffer

Date: May 1, 2009
Re: Brian Walton
Dear Mayor Fisher & Members of Council:

At Monday’s night’s Council meeting Councilman Walton advised the remaining members of
Council that on or about June 1st he will be taking a job that will result in his being sent to either
Iraq or Afghanistan for 12 months. He requested that Council support his desire to keep his
position open for the one year that he is overseas. Councilman Walton indicated he wanted to
keep his seat. He did not want to resign. He wanted Council’s blessing.

I was asked by all of Council to look into this matter to see if there is some guidance to assist
Council and Brian in making a decision.

I have thoroughly researched local law, state law and the Huber Heights Charter.

It should come as no surprise that there is no guidance in the Huber Heights Charter directly on
point.

Similarly, neither state law nor federal law deal directly with the subject. In other words there is
no law that requires a position to remain open at the choice of a public official, nor is there any
statutory law that gives guidance to local or state governments concerning the same.

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The few cases that are around simply touch upon the issue, but there are no cases we have found
that specifically state a councilmember has an absolute legal right to hold his/her position open
while on an extended absence or any requirement that a council must adhere to such a request.

The Huber Heights City Charter does give us some indirect guidance.

• Under Section 13.8 if a councilmember is absent for three consecutive unexcused absences
Council may remove that councilmember. The obvious inference to be made here is that the
Charter expects councilmembers to participate. I would point out that recent experience with
our former mayor would suggest that Council has been sensitive to the reasons why a
councilmember might be absent for an extended period of time, and would want to work with
that councilmember. At the same time, the former mayor was also faced with the possibility
that Council would not grant him additional excused absences. The timeframe was much less
than one year. Council was never faced with the need to not excuse absences of the former
mayor as he resigned for health reasons. Those health reasons were well known by Council.
The hope was that the health reasons would stabilize or improve. They did not, and in fact,
his health continued to deteriorate resulting in his ultimate resignation from Council, because
in his own estimation he could not serve, and it would be unfair to ask that he be allowed to
finish out his term which had a little less than a year to go.

The Charter sets forth the form of government that the residents of the City chose back in the
early 1980’s when Wayne Township became Huber Heights. The form of government is a
city council/city manager form of government, with eight members of Council and a Mayor.
Under this form of government the mayor, although the titular head of the City Council only
votes when there is a tie.

With one member of Council absent for a 12 month period of time the whole structure of the
form of government provided for by the City Charter is changed, not by vote of the people, but
simply by the absence of a councilperson.

Council really becomes a group of seven and the Mayor’s vote counts for nothing, because he
only votes to break a tie. Again, however, with only seven councilmembers in position to vote, in
theory, there is never a tie.

This situation allows a group of four, then, to dominate all action at their will.

In addition under the City Charter action requires a majority of all councilmembers. Under the
Charter a majority of council is five. In some cases a super majority of six is required. In both
situations a minority of at least four would be required to block any action.

With one councilmember absent from voting for a year a minority of three could block any
action.

In effect, the whole dynamic of the City Council legally changes. This is not to say the change is
good or bad. It puts a not what the voters originally voted for or intended.

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It is my understanding that Brian is running unopposed. As I further understand it,
notwithstanding the fact that he is running unopposed the Ohio Revised Code allows for a write
in candidate who otherwise meets all requirements to get on the November ballot. The point is
that in theory at least, there is no guarantee that Brian will be reelected, even though he is
running unopposed, because of the write in possibility.

I have made every effort to turn over every stone in my analysis. If it appears that the
information I am providing is not very supportive of Brian’s request, it is because principally our
Charter never contemplated such a situation. An eight cylinder engine is built to run on eight
cylinders. The engine is not designed to run on seven cylinders, although, it can, but not for very
long.

The ultimate decision, of course, is Brian’s. His decision, whatever it is, will then dictate
Council’s response. This is an issue that should be settled among the parties, not for their own
personal satisfaction but because the decision is the right thing to do for the 40,000 residents’ of
Huber Heights best interests.

ABS:njk

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