A private attorney says a long-running dispute about who controls the city’s parks department might have to be resolved in court.
But Columbus Parks and Recreation Board President Brian Russell instead said it’s time to resolve the issue through collaboration.
“I personally will have a tough time supporting any type of litigation pitting the city against itself,” he said. “Rather, I expect all city officials to work collectively to resolve this issue, and I believe other members of the parks board feel the same way.”
The legal opinion from Bloomington attorney Darla S. Brown, sought by the city council in February and revealed Monday, suggested “competing statutes” have muddied the interpretation of who can demote or fire a park director.
Mayor Kristen Brown, the parks board and city council have been involved in a dispute since Dec. 30 when she demoted parks director Ben Wagner to marketing coordinator after learning that a Commons restaurant tenant, Snappy Tomato Pizza, had failed to make any lease payments in 2013.
The mayor accused Wagner of failing to implement financial control procedures that would have revealed that the restaurant failed to pay its rent. She also accused Wagner of having “questionable judgment” in the use of parks department credit cards, using them for “inappropriate expenditures and several expenditures that violate city policy.” The mayor also blamed Wagner for failing to come up with a financially responsible option to eliminate a backlog of expenses and deferred maintenance for park facilities.
Wagner has said the mayor’s allegations are unfounded and did not merit reassignment or demotion.
The Darla Brown legal opinion is the second one the city has received about Wagner’s demotion. The first came from Indianapolis law firm Krieg DeVault, requested by City Attorney Jeff Logston in January.
The Krieg DeVault opinion said:
The mayor has unilateral authority to remove or suspend a parks director.
The mayor may remove the park director without parks board approval.
The mayor can demote the parks director to a marketing coordinator job because that is normally done by the parks director, who is no longer in the job, so the decision defaults to the mayor.
The Darla Brown opinion said:
There are competing state statutes about suspending or removing a parks director. Those include a statute that the mayor appoints a parks director but the parks board approves the appointment. The opinion contends if that is the case, a park director’s suspension or demotion by the mayor should also be approved by the parks board. The second statute says the mayor may suspend or remove any city employee appointed by the mayor or previous mayor. The opinion argues that previous Columbus mayors have allowed the parks board to hire and supervise the director without mayoral input. For example, former Columbus Mayor Fred Armstrong did not appoint Wagner to parks director. Wagner was hired as an understudy to former director Chuck Wilt and when Wilt announced plans to retire in January 2010, it was the intent that Wagner would replace him. “Thereafter, the parks board, not the mayor, promoted Ben Wagner to director when Mr. Wilt retired in June of 2010,” the attorney wrote. “The mayor’s input has been through his or her appointment of parks board members.”
A court ruling may be needed to determine who may demote or remove a parks director — the mayor or the parks board.
City council bows out
After forwarding the Darla Brown opinion to Russell, the city council’s role in the dispute between the parks department and city administration about Wagner is over, City Council President Dascal Bunch said.
“We have done what we told the parks board we would do,” Bunch said. “As far as the next step, it’s the park board vs. the mayor — they are the two entities that need to work this out.”
The parks board will meet in closed session soon to discuss their legal options, Russell said.
However, Russell said the city has a history of working together and “this instance should be no different.”
“The parks board respects the mayor’s authority and it appreciates the city council’s willingness to help the volunteer (parks) board better understand its responsibilities,” Russell said.
Parks board member Nancy Ann Brown said she is in favor of seeking a judge’s opinion about the mayor’s authority over the parks department, but she doesn’t know if the other three parks board members feel the same way.
“It’s the only way to get a final legal decision,” she said. “I believe that anything that is wrong (in the parks) should have been brought to the parks board,” she added. Since the mayor appoints the parks board members, the parks board should be running the parks, she said.
There is one main point of contention among the parks board, city council and the mayor that won’t change in the near future, Bunch said.
He was referring to the council’s Jan. 21 decision to zero out the park director’s salary. That money was moved to the marketing coordinator position, so that Wagner would
continue to be paid his full park director’s salary, $79,471, while the dispute is being worked out, Bunch said. The marketing coordinator position normally pays $40,883 per year.
“Until the park board makes a decision, that salary stays where it is,” Bunch said.
No change of opinion
Jeff Logston, speaking as city attorney and parks board attorney, said the Darla Brown opinion did not change his contention that there is no gray area in the state statutes — the mayor has unilateral authority to remove or suspend a parks director. This was supported in the earlier Krieg DeVault opinion.
“I don’t see anything in this (new) opinion that changes my opinion,” he said.
As for going to court, Logston also said he hoped it would not come to that.
The statute cited for going to court is used for disputes between the executive and legislative branches of government, something that wouldn’t apply between the mayor and parks board, Logston said.
“I haven’t done specific research, but the park board is part of the executive branch,” he said.
Legal opinion or conjecture?
In the opinion, Darla Brown described the mayor’s reasons for demoting Ben Wagner as “disingenuous.”
“It is unfortunate that Mayor Brown decided to demote Mr. Wagner without having a single conversation with the parks board about the proposed demotion,” Darla Brown wrote.
“The credit card expenditures in question were presented as claims and were approved by the Parks Board and the city Clerk-Treasurer’s office. The State Board of Accounts found no irregularities,” she wrote.
The city resolution which directed the clerk-treasurer to transfer funds among accounts in relation to Commons rent payments did not designate responsibility to the parks board to collect rent from the Commons tenants, she added. Additionally, Wagner has never been disciplined by the parks board, she wrote in the opinion.
Logston said he was disappointed in the comments, saying part of the opinion is more conjecture and narrative instead of legal analysis and rationale.
Mayor Kristen Brown declined to comment Monday, saying she didn’t have a copy of the opinion and did not have any openings in her schedule to review it if she received one from Russell.