MINUTES OF THE REGULAR MEETING
MASSILLON CITY COUNCIL
HELD, TUESDAY, JANUARY 22, 2013 

ACTING COUNCIL PRESIDENT PETERS B I'd like to welcome all of you to Massillon City Council for Tuesday, January 22, 2013.  We have in attendance tonight Mayor Kathy Catazaro-Perry, Safety Service Director George Maier, Law Director Perry Stergios and Building Official Bill Kraft.  Also under item #5 on the agenda is where the public can speak on any item that appears on the agenda and then under item #17 is where the public can speak on any item that does not appear on the agenda.  I'd also like to remind anyone with a cell phone please turn it off or turn it very far down. 

1.  ROLL CALL

Roll call for the evening found the following Council Members present:  Milan Chovan, Nancy Halter, Ed Lewis, Paul Manson, Donnie Peters, Andrea Scassa and Larry Slagle.

Thus giving a roll call vote of 7 present.

ACTING COUNCIL PRESIDENT PETERS – We have two council people absent tonight I’ll ask for a motion to excuse Councilman Townsend.  Motion made by Councilman Chovan, seconded by Councilman Slagle.

Roll call vote of 7 yes to excuse Councilman Townsend.

ACTING COUNCIL PRESIDENT PETERS – I need a motion to excuse Councilwoman Cunningham-Hedderly.  Motion made by Councilwoman Halter, seconded by Councilman Manson.

Roll call vote of 7 yes to excuse Councilwoman Cunningham-Hedderly.

2. INVOCATION

COUNCILMAN LEWIS B Gave the invocation for tonight.  

3.  PLEDGE OF ALLEGIANCE

COUNCILMAN LEWIS – Chairman of the Environmental Committee led those in attendance in the Pledge of Allegiance.  

4.  READING OF THE JOURNAL

ACTING COUNCIL PRESIDENT PETERS - Madame Clerk, are the minutes of the previous meeting transcribed and open for public viewing?  (Yes, they are)  Are there any additions or corrections to the minutes?  If not the minutes stand approved as written.     

5.  REMARKS OF DELEGATIONS AND CITIZENS TO MATTERS ON THE AGENDA

ACTING COUNCIL PRESIDENT PETERS – If you wish to speak come up to the microphone state your name and address.  

SCOTT GRABER – 1218 Tremont Avenue SW in the city.  Mr. President, I rise to speak to Ordinance No. 3 – 2013. 

Mr. Graber read the following statement:
Quote: “Received an email from one local Councilmember last night..it goes as follows..
'At a recent meeting; the Mayor stated that no courts shall be audited due to a supreme court ruling that states that courts are funded by a general fund but cannot be denied funding by the legislature which is rooted in the seperation of powers.
(Apparently that means there's a law that states that the courts cannot be audited.)

ORDINANCE NO. 3 - 2013                        BY:   FINANCE COMMITTEE 
Authorizing the Mayor of the City of Massillon, Ohio, to enter into contract with the Auditor of State for use of the Leverage for Efficiency, Accountability and Performance (LEAP) fund loan program for purpose of a performance audit of select areas of the City, and declaring an emergency.
ACTING COUNCIL PRESIDENT PETERS – Councilman Manson?
COUNCILMAN MANSON – Yes, Mr. Peters, being a number of questions on this that were asked and we asked for some more information we’ll give it first reading.
ORDINANCE NO. 3 – 2013 WAS GIVEN FIRST READING.
And so, I assume that the Statement made by the Mayor was made in a “work session” earlier in the year,.
I would like to differ with the Mayor on that point, if that is what she actually said.
I understand that a case known as ex rel Musser v City of Massillon is purported to hold that a court of general jurisdiction may “order” appropriations without any review or discretion exercised by the appropriating entity in this case the legislative authority of a municipal corporation, the City of Massillon City Council however,  I think the members of Council should read the case itself to determine whether it does hold that opinion and I do not believe it does.
Musser v City of Massillon was a mandamus suit  requesting two different mandamus writs, of which one was allowed, to permit the Muni Court Referee to use the City Council Chambers to hear cases, and one to mandate that the City Council to pay Court reporters as Bailiffs, which was denied, partially based on another opinion,
STATE, EX REL. CLEVELAND MUNICIPAL COURT v. CLEVELAND CITY COUNCIL
34 Ohio St. 2d 120 (1973)
Supreme Court of Ohio.
Decided May 16, 1973.

http://www.leagle.com/xmlResult.aspx...985&SizeDisp=7

"The specific action sought herein is the unquestioned allotment and distribution by city council of all funds requested by the Municipal Court for the purpose of administering the Municipal Court so long as the court has not abused its discretion in making the request. Relator relies heavily upon this court's holding in the first and second paragraphs of the syllabus in State, ex rel. Foster, v. Bd. of County Commrs. (1968), 16 Ohio St.2d 89, which provide:
"1. The administration of justice by the judicial branch of the government cannot be impeded by the other branches of the government in the exercise of their respective powers.
"2. Courts of general jurisdiction, whether named in the Constitution or established pursuant to the provisions thereof, possess all powers necessary to secure and safeguard the free and untrammeled exercise of their judicial functions and cannot be directed, controlled or impeded therein by other branches of government. (Paragraph two of the syllabus in Zangerle v. Court of Common Pleas, 141 Ohio St. 70, approved and followed.)"

In that case, we reaffirmed the separation of the judiciary from the executive and legislative branches of government, acknowledging the necessity of having the judiciary
free from infringements to the greatest extent possible. We did not hold that legislative authorities have an inherent duty to allocate all the funds requested by a Municipal Courts, without regard to the limited funds available for disbursement to all departments and divisions of city government and the ability of the court to properly exercise its judicial function. (emphasis added)

That clearly says: the LEGISLATIVE AUTHORITY HAS A DUTY TO ALLOCATE FUNDS NECESSARY FOR THE ADMINISTRATION OF JUSTICE BUT the SUPREME COURT DID NOT HOLD THAT THE CITY COUNCIL MUST ALLOCATE ALL OF THE FUNDS REQUESTED BY A MUNI COURT.

Based on in part on the paragraph that I had just read from that case the concluding paragraph of the same case reads and that’s Cleveland Municipal Court vs. Cleveland City Council:

“Whether treated for budget purposes as one of a number of branches of city government, or afforded its true status as a separate branch of tripartite city government, a Municipal Court may not be impeded by the legislative authority in the exercise of its administration of justice. In this instance, the duty of the legislative authority is to appropriate those funds which are necessary to facilitate the administration of justice by the Municipal Court.
We are not prepared, under the circumstances of the allegation contained in the complaint, to find that the reduced allocation of funds was sufficient to impede the Cleveland Municipal Court in the administration of justice.
We do not question the advantages to be gained should the Municipal Court be provided additional space, air conditioning and a computer. However, we do not find that city council has abused the discretion afforded it by R. C. 1901.36 in this instance.
Having found no violation of an express statutory duty as exists for Juvenile Courts (State, ex rel. Milligan, v. Freeman [1972], 31 Ohio St.2d 13; R. C. 2151.10), nor a violation of the inherent duty of the legislative authority to not impede the administration of justice, we conclude that, in this case, the legislative authority has not failed in its duty. Accordingly, the writ of mandamus may not issue.
For the foregoing reasons, the writ is denied.
Writ denied.
O'NEILL, C. J., HERBERT, CORRIGAN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.

In other words, to assert that a Municipal Court could “Order” under pain of a Contempt Citation,  that the legislative authority of the City  MUST appropriate ALL of the funds it requests,.. is ludicrous on its face.
Each case is different, and any Court which disagreed with the decision of any City Council would have to prove that the City Council was impeding the administration of justice by appropriating less than was necessary and reasonable for the Court to do it’s mandated function.

Therefore its also ludicrous to say that the City Council can not order an audit of the Massillon Municipal Courts.  Thank you.

ACTING COUNCIL PRESIDENT PETERS – Mr. Graber, do you have a copy of that that you can submit to council?  Thank you.   For the record Mr. Graber has given us a copy of his statement.  Anyone else want to come forward?  If not we’ll move on to item 6 on the agenda.

6.  INTRODUCTION OF ORDINANCES AND RESOLUTIONS

ORDINANCE NO. 6 - 2013                        BY:   ENVIRONMENTAL COMMITTEE

Authorizing the Director of Public Service and Safety of the City of Massillon, Ohio, to prepare specifications and to advertise for and receive sealed bids and enter into contract, upon award and approval of the Board of Control, with the lowest and best bidder for process waste removal at the Wastewater Treatment Plant, and declaring an emergency.

 

ACTING COUNCIL PRESIDENT PETERS – Councilman Lewis?

COUNCILMAN LEWIS – Yes, this ordinance is simply requesting or asking us to approve that the safety service director can go out and collect the bids for the removal of products that come through our sewer system that aren’t normally processed such as the sludge or the liquid waste same such as rags or anything that may come through the system that get caught by the various systems already in place.  Currently they do use someone but they feel that the prices have been rising steadily over the years and they want to put it out onto market to see if there’s another provider for this service and maybe save a little cost and they wanted to see what was out there.  So with that said there wasn’t a lot of questions at the last meeting.  If no one has any questions tonight or any objections I’d like to make a motion that we move this forward suspending the rules requiring three readings and moving it forward for a vote tonight.

ACTING COUNCIL PRESIDENT PETERS – Are there any questions?  I’ll take that as your motion.

COUNCILMAN LEWIS moved for suspension of the rules and passage, seconded by Councilman Manson.

The rules were suspended by a roll call vote of 7 yes.

ORDINANCE NO. 6 – 2013 WAS PASSED BY A ROLL CALL VOTE FOR 7 YES.

ORDINANCE NO. 7 - 2013                        BY:   RULES, COURTS AND CIVIL SERVICE COMMITTEE

Amending Section 2(D) OCCUPATION LIST OF CLASS TITLES- ENGINEER DEPARTMENT, BUILDING DEPARTMETN, STREET DEPARTMENT, PARK DEPARTMENT, SOLID WASTE DEPARTMENT and the WASTEWATER TREATMENT DEPARTMENT of Ordinance No. 127 – 1997 by repealing Section 2(D) OCCUPATION LIST OF CLASS TITLES – ENGINEER DEPARTMENT, BUILDING DEPARTMENT, STREET DEPARTMENT, PARK DEPARTMENT, SOLID WASTE DEPARTMENT and the WASTEWATER TREATMENT DEPARTMENT, and enacting a new Section 2 (D) OCCUPATION LIST OF CLASS TITLES – ENGINEER DEPARTMENT, BUILDING DEPARTMENT, PUBLIC WORKS DEPARTMENT and the WASTEWATER TREATMENT DEPARTMENT, in the City of Massillon, Ohio, and declaring an emergency.

 

ACTING COUNCIL PRESIDENT PETERS – Councilwoman Scassa?

COUNCILWOMAN SCASSA – Thank you, Mr. President, first reading.

ACTING COUNCIL PRESIDENT PETERS – First reading for Ordinance No. 7 – 2013.

ORDINANCE NO. 7 – 2013 WAS GIVEN FIRST READING.  

ORDINANCE NO. 8 - 2013                        BY:   FINANCE COMMITTEE 

Making certain appropriations from the unappropriated balance of the 2105 Stormwater Utility Fund, for the year ending December 31, 2013, and declaring an emergency.

 

ACTING COUNCIL PRESIDENT PETERS – Councilman Manson?

COUNCILMAN MANSON – Yes, thank you, Mr. President.  I’ll just read the legislative request please appropriate $3,042.00 from the unappropriated balance of the 2105 Stormwater Utility Fund for the geotechnical investigation for the proposed salt storage structure to be located at the city garage located on Walnut Rd SW.  If there’s no questions I intend to move for passage.

COUNCILMAN MANSON moved for suspension of the rules and passage, seconded by Councilman Slagle.

The rules were suspended by a roll call vote of 7 yes.

ORDINANCE NO. 8 – 2013 WAS PASSED BY A ROLL CALL VOTE FOR 7 YES.

ORDINANCE NO. 9 - 2013                        BY:   FINANCE COMMITTEE 

Authorizing the Auditor to pay various 2012 bills that have been received and that will be received by her office between January 1, 2013 and March 31, 2013, out of the 2013 appropriations within the various departments of the City of Massillon, Ohio, and declaring an emergency.  

 

ACTING COUNCIL PRESIDENT PETERS – Councilman Manson?

COUNCILMAN MANSON – Yes, thank you, Mr. President.  Same thing this is bills that come in after the end of 2012.  We have to have an ordinance that allows the auditor’s office to go ahead and pay those bills.  So something we do every year if there’s not a problem I intend to move to waive the rules.    

ACTING COUNCIL PRESIDENT PETERS – Are there any questions?  Seeing none your motion please.

COUNCILMAN MANSON moved for suspension of the rules and passage, seconded by Councilman Slagle.

The rules were suspended by a roll call vote of 7 yes.

ORDINANCE NO. 9 – 2013 WAS PASSED BY A ROLL CALL VOTE FOR 7 YES.

ORDINANCE NO. 10 - 2013                      BY:   FINANCE COMMITTEE 

Establishing the blanket purchase order amount for the fiscal year 2013 not to exceed Fifteen Thousand Dollars ($15,000.00) for all departments with the exception of the 2101 Wastewater Treatment Fund within the City of Massillon, and declaring an emergency.  

 

ACTING COUNCIL PRESIDENT PETERS – Councilman Manson?

COUNCILMAN MANSON – Yes, as it says it’s a blanket purchase order for up to $15,000.00 for those departments affected all except the Wastewater Treatment Fund Plant.  Unless there’s any questions that we can’t get answered I intend to move for passage on this.     

ACTING COUNCIL PRESIDENT PETERS – Any questions?  Your motion oh Councilman Slagle, I’m sorry?

COUNCILMAN SLAGLE – I’m seconding.

ACTING COUNCIL PRESIDENT PETERS – Oh, just be patient your motion Mr. Manson?

COUNCILMAN MANSON moved for suspension of the rules and passage, seconded by Councilman Slagle.

The rules were suspended by a roll call vote of 7 yes.

ORDINANCE NO. 10 – 2013 WAS PASSED BY A ROLL CALL VOTE FOR 7 YES.

RESOLUTION NO. 2 - 2013                      BY:   FINANCE COMMITTEE

Requesting the Stark County Auditor and the Stark County Treasurer to pay the City’s share of real estate taxes for the 2013 fiscal year.

 

ACTING COUNCIL PRESIDENT PETERS – Councilman Manson?

COUNCILMAN MANSON – Thank you, Mr. President.  This is an ordinance requesting that the auditor free up our real estate taxes.  This is something we don’t do every year but do to the tightness of our budget the last couple of years we have been doing this.  So I intend to move waive the rules if there’s not any questions that we can’t answer. 

ACTING COUNCIL PRESIDENT PETERS – Councilwoman Scassa?

COUNCILWOMAN SCASSA – If we don’t do this resolution now does it come in increments?

COUNCILMAN MANSON – There’s dates when it will come.  If we don’t do something like this goes hand in hand with the next one requesting up to 75%.  They won’t give it all to us.  But they will give us partial.  There’s dates normally that we would receive the property tax money.  All we’re doing is its being collecting as the year starts you know it will be paid and we’re asking to have an early payment of up to 75%.  We need this for the request is the way that I understand it.  Anybody disagree with what I’m saying here?

ACTING COUNCIL PRESIDENT PETERS – Would you like to call somebody up or…?

COUNCILWOMAN SCASSA – No.

ACTING COUNCIL PRESIDENT PETERS – Okay, any other questions?  Your motion, Mr. Manson.

COUNCILMAN MANSON moved for suspension of the rules and passage, seconded by Councilman Slagle.

The rules were suspended by a roll call vote of 7 yes.

RESOLUTION NO. 2 – 2013 WAS PASSED BY A ROLL CALL VOTE FOR 7 YES.

RESOLUTION NO. 3 - 2013                      BY:   FINANCE COMMITTEE

Requesting the Stark County Auditor and the Stark County Treasurer to pay the City’s share of 75% of the estate and inheritance taxes for the 2013 fiscal year.

 

ACTING COUNCIL PRESIDENT PETERS – Councilman Manson?

COUNCILMAN MANSON – Yes, we don’t anticipate a lot of estate and inheritance taxes this year.  This will be I believe the last year for it but it’s the same thing.  We’re requesting to receive 75% of it before they would normally pay it.  I believe they pay this twice a year normally there would be two dates a year that they would pay this but we’re asking for it early.

ACTING COUNCIL PRESIDENT PETERS – Councilman Chovan?

COUNCILMAN CHOVAN – Thank you.  My only question regarding the inheritance taxes is how are these for taxes for people or taxes that are collected in to 2013? 

ACTING COUNCIL PRESIDENT PETERS – No, I can answer that.  They’re not they’ve done away with that and the mayor can correct me if I’m wrong.  They’ve done away with that but this is just for the ones that are still lingering in from 2012.

COUNCILMAN CHOVAN – From 2012 so we know what the amount is we’re just asking for

ACTING COUNCIL PRESIDENT PETERS – Well we really don’t because you know like…

COUNCILMAN CHOVAN – Probate they haven’t settled a lot of them yet, right, okay.

ACTING COUNCIL PRESIDENT PETERS – Right, right.  Councilman Slagle did you have something?

COUNCILMAN SLAGLE – And some of these will be for 2011 you know probably some even for 2010 but I don’t suspect it go too far beyond.  I mean you can get extensions on these and sometimes you can’t close the estates up in time.  But you’re right as of 2013 the estate tax will end. 

COUNCILMAN CHOVAN – Thank you.

ACTING COUNCIL PRESIDENT PETERS – Any other questions?  Councilman Manson.

COUNCILMAN MANSON – So it would have been for funds due in lets say 2010, 2011, 2012 it’s just that they’re coming in now. 

COUNCILMAN SLAGLE – Correct.

COUNCILMAN MANSON – And they may even come in next year then some of the yet possible.

COUNCILMAN SLAGLE – Sure and you might even have some refunds come back I mean sometimes you file returns and then initially make payments and then when you end up doing the final return its not the same amount what you made the payment on.  Sometimes it’s more you owe and sometimes its less.  So…

ACTING COUNCIL PRESIDENT PETERS – Councilman Manson?

COUNCILMAN MANSON moved for suspension of the rules and passage, seconded by Councilman Slagle.

The rules were suspended by a roll call vote of 7 yes.

RESOLUTION NO. 3 – 2013 WAS PASSED BY A ROLL CALL VOTE FOR 7 YES.

7.  UNFINISHED BUSINESS

8.  PETITIONS AND GENERAL COMMUNICATIONS

LETTER FROM OHIO DIVISION OF LIQUOR CONTROL REGARDING A TRANSFER OF LIQUOR LICENSE FROM RONALD L STEWART JR DBA MASSILLON BREW THRU 604 LINCOLN WAY W & DRIVE THRU MASSILLON OHIO 44647 TO MASSILLON DRIVE THRU LLC DBA MASSILLON BREW THRU 604 LINCOLN WAY W & DRIVE THRU MASSILLON OHIO 44647

9.  BILLS, ACCOUNTS AND CLAIMS

10.  REPORTS FROM CITY OFFICIALS

11.  REPORTS OF COMMITTEES

ACTING COUNCIL PRESIDENT PETERS – Does anyone have any reports on committees?  Reminder that we will have our work session next Monday the 28th at 6:00pm here in council chambers.  If anyone has anything special going on we need to know and notify the clerk.

COUNCILMAN LEWIS  - Mr. Peters?

ACTING COUNCIL PRESIDENT PETERS – Mr. Lewis?

COUNCILMAN LEWIS – Are we having the judges to that meeting?  I know we had mentioned it briefly at the last work session.  Someone stated they might be invited to speak to us.

ACTING COUNCIL PRESIDENT PETERS – I have asked Judge Elum and he it was pretty informal but he said he would gladly come.  But we have to talk and I have to do that we’ll have to talk to Judge Centrone because he is the ruling judge.  So and he should probably be asked and be here.  So but Judge Elum said he had no problem coming and I will do that tomorrow and I’ll notify the clerk and then if they do come we’ll take them first so they don’t keep them here all night.  Anything else?

12.  RESOLUTIONS AND REQUESTS OF COUNCIL MEMBERS

13.  CALL OF THE CALENDAR

14.  THIRD READING ORDINANCES AND RESOLUTIONS

ORDINANCE NO. 140 - 2012                    BY:   ENVIRONMENTAL COMMITTEE 

Repealing certain Subsections of CHAPTER 925 “SEWERS GENERALLY” of the Codified Ordinances of the City of Massillon, Ohio, and enacting new Subsections to such Chapter, and declaring an emergency.

 

ACTING COUNCIL PRESIDENT PETERS – Councilman Lewis?

COUNCILMAN LEWIS – Yes, we’ve gone over this particular ordinance for a few weeks now.  I’ve asked all of you to read it at the last council meeting we did discuss it with the city engineer.  There were no blatant questions as to exactly what it was doing its just making some corrections and cleaning up some language.  With that said I will make a motion to I move that we pass this ordinance.

COUNCILMAN LEWIS moved to bring Ordinance No. 140 – 2012 forward for its passage, seconded by Councilman Manson.

ORDINANCE NO. 140 – 2012 WAS PASSED BY A ROLL CALL VOTE OF 7 YES.

15. SECOND READING ORDINANCES AND RESOLUTIONS

ORDINANCE NO. 3 - 2013                        BY:   FINANCE COMMITTEE 

Authorizing the Mayor of the City of Massillon, Ohio, to enter into contract with the Auditor of State for use of the Leverage for Efficiency, Accountability and Performance (LEAP) fund loan program for purpose of a performance audit for select areas of the City, and declaring an emergency.

 

ACTING COUNCIL PRESIDENT PETERS – Councilman Manson?

COUNCILMAN MANSON – Yes, thank you, Mr. President.  I believe we established that the meeting last Monday that its not critical that we move this forward at this time.  So I will be giving it second reading.

ORDINANCE NO. 3 – 2013 WAS GIVEN SECOND READING.

16.  NEW AND MISCELLANEOUS BUSINESS

17.  REMARKS OF DELEGATIONS AND CITIZENS TO ITEMS NOT ON THE AGENDA

CINDY BRATTON – I am standing up.  927 3rd Street NE in Massillon.  I just have a question I would like to know the address of the president of council.  I have a question…

ACTING COUNCIL PRESIDENT PETERS – This isn’t a question and answer session.  I’ll be glad to give it to you after the meeting if you’d like. 

CINDY BRATTON – Okay, because its my understanding that if someone’s a council member and they’re not living in their ward then they’re no longer representing that ward.  So I didn’t know how someone who’s not living in their ward could still be on council and then in turn end up being the council president when they’re at default following the rules of order.  The rules that are set forth for everybody that’s on council.  Its like slapping the face of everyone that’s on council.  I know that there are extenuating circumstances with everyone’s life.  But lets just say that at my job where I was receiving a paycheck stipulating that I needed to live at a certain place.  Well what happens if I move from that particular place and I still have that job?  Well, according to the contract that I probably would have signed I would be at default and upon my leaving of that address and maintaining that I lived at that address I would probably be prosecuted and had to pay back the money that I was earning as while I was lying about my residence.  I just wanted to find out kind of what other people on council thought about that or if you’re just putting a blind eye or is it because that perhaps your divorce attorney happens to be a member of the prosecuting staff of the city that involved in your personal business that’s carrying over into council business.  I resent that and I wanted you to know that.  Thank you.

ACTING COUNCIL PRESIDENT PETERS – Thank you for your remarks.  Anyone else?

18.  ADJOURNMENT

COUNCILMAN LEWIS  – I move that we adjourn, seconded by all.

_________________________
MARY BETH BAILEY, CLERK,

______________________________
DONNIE PETERS, ACTING PRESIDENT

 

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