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Outside counsel upholds demotion

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An outside legal opinion sought by the Columbus city attorney upholds Mayor Kristen Brown’s demotion of the city parks director.

The opinion also says the Columbus City Council may have violated the municipal separation of powers between the executive and legislative branches of city government, established in state law, by taking salary money from the Columbus Parks and Recreation director’s position and moving it to another account.

With no salary to offer, the council’s Jan. 21 action prevents the mayor and park board from hiring a new parks director.

Until last week, neither the City Council or Columbus Parks and Recreation Board had been told that city Attorney Jeff Logston had sought and received the opinion from Indianapolis law firm Krieg DeVault in January.

Logston, who also serves as park board attorney, said he sought the outside legal opinion because park board members had questions regarding authority to make parks department personnel actions.

The opinion’s existence became public Tuesday when the city’s Board of Works, over which Brown presides, approved a claim paying for it.

Brown said she knew Logston had asked for the opinion, but did not direct him to seek it.

The opinion explores the legal justification behind Brown’s Dec. 30 demotion of former Parks Director Ben Wagner and the park board’s authority on personnel matters.

Logston requested the research Jan. 22. He said he received the written legal opinion Feb. 21 and provided it to park board members Wednesday.

City Councilman Frank Jerome said a copy of the opinion would be turned over to Darla S. Brown, an attorney with the Bloomington-based law firm Sturgeon and Brown, retained by the City Council in February to research the same issue at the rate of $170 an hour.

Krieg DeVault was hired to do legal work on an as-needed basis by the Board of Works in November 2012, according to city records. The law firm has been used for a variety of work since then, from redevelopment issues to representing the city in lawsuits. The law firm was paid $2,765 for seven hours of research into the park board controversy and for the legal opinion, at the rate of $395 an hour.

What started inquiry

The parks controversy began when Mayor Kristen Brown demoted Wagner to marketing coordinator, after accusing him of failing to put financial procedures in place that would have revealed Snappy Tomato Pizza in the Commons did not pay rent for all of 2013. Brown also accused Wagner of using parks credit cards inappropriately, and failing to come up with a plan to deal with $6 million in deferred park maintenance.

Wagner said the mayor’s claims were unfounded and did not merit reassignment or demotion.

In response to the mayor’s action, city councilmen eliminated the park director’s salary in the city budget. They moved the full park director’s salary of $79,471 to the marketing coordinator’s position, which was to have paid $40,883.

City Council President Dascal Bunch explained that the council decided to move the parks director’s salary so that the director issue could be resolved before anyone else was put in the job.

“We didn’t want her (Mayor Brown) to go out and try to hire someone else before we got this behind us,” Bunch said.

Mayor Brown said she and the council have not been on speaking terms regarding Wagner’s demotion and subsequent actions by the council.

The Krieg Devault opinion says the mayor has unilateral authority to remove or suspend a parks director, Logston said.

By statute, the mayor appoints a parks director, and the park board has the authority to approve that appointment, according to the opinion. Additionally, the park board has the authority to approve employment of all non-director employees in the department, according to the opinion.

“But this is not an authority they (the park board) had been exercising,” Logston said. “It had been exercised by the park director.”

Some of the confusion about the parks issue arose because the law deals differently with parks appointment powers, removal powers and general personnel matters, Logston said.

The legal opinion says the mayor appoints the park director, with the park board approving it. The mayor has the power to remove the park director without board approval, according to the opinion.

Jamie Brinegar, the parks department’s director of business services, has been appointed interim parks director and would now have the power to make personnel decisions on other employees within the department, Logsdon said.

Confusion over who approves parks department hiring and firing surfaced in a Feb. 6 park board meeting when park board member Nancy Ann Brown challenged Logston about why the board had to approve Wagner being assigned to the middle-manager marketing job. She repeatedly asked why the board had to approve personnel moves, as it had never done so before.

The board then did approve moving Wagner to the marketing job, with board member David Jones voting no.

Parks board members are trying to understand the Krieg DeVault opinion “as best we can,” Nancy Ann Brown said.

“What I’m struggling to understand is that this opinion flies in the face of everything we’ve every been told about the parks board,” she said.

What the park board has believed until now is that the mayor can hire or fire any department head, unless that department is controlled by a board, such as the park board, Nancy Ann Brown said.

In such an example, the board has been in charge of hiring and firing at the director level, the former mayor said.

The Krieg DeVault opinion says that since Wagner had been removed as parks director, the mayor had the authority to place him into the marketing job since there was no parks director in place to do it, Logston said.

Council reaction

“She’s still not sure she could do what she did; that’s why she demoted Wagner rather than getting rid of him,” Bunch said of Mayor Brown.

The parks director position is not listed among department heads in city ordinances as ones which the mayor has authority to fire at will, Jerome said.

Jerome said the positions she can hire and fire at will include the police chief, fire chief, city engineer and animal care manager.

Jerome also questioned the appointment description used in the Krieg DeVault opinion.

“She doesn’t appoint the parks director,” Jerome said. “She interviews and recommends — nominates — but does not appoint.”

The park board makes the appointment based on her nomination, Jerome contends.

Jerome said the city council might have responded differently when it hired an outside attorney had members known Logston also was asking for an outside legal opinion, a duplication of taxpayer expense.

“They hired a $400-an-hour person to do it. If he (Logston) is not confident enough to make this judgment on his own, maybe he shouldn’t be city attorney,” Jerome said.

Logston already had advised park board members before seeking the Krieg DeVault opinion.

In those conversations, Logston said he told them that the mayor had the authority to act as she did. Park board members also were informed they had the authority to approve personnel matters below the parks director level, consistent with the Krieg DeVault opinion, Logston said.

Bunch said he was irritated that when the full council met Jan. 24 and again on Feb. 4, nothing was mentioned about Logston seeking the outside opinion.

“We just found out this past Tuesday,” Bunch said. “They (the mayor and Logston) knew at those meetings, where people were ripping us for going outside the city to get an attorney, that they had already engaged an attorney,” He said. “Where is her transparency? Where’s Jeff’s transparency?” he asked.

The city attorney said he did not tell the council or park board about the contact with Krieg DeVault because the full city council “had made it abundantly clear they wanted to seek their own counsel.”

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