Accountability
CITY BUILDING

Last Updated -- December 15, 2006

City Building Committee Information

The following information has been supplied to City Council for your review and comment:

CLICK:    City Building Committee Final Report dated December 11, 2006.  (12/15/06)

CLICK:    *NEW* Video of the Final Report Summary read by City Building Committee member Mr. Kevin Johnson.  (12/15/06)

CLICK:    *NEW* Video of the Final Report City Building Committee Vote.  (12/15/06) 

CLICK:   Partial Engineering Report supplied to Council dated November 6, 2006 on the inspection and structural condition assessment for the City of Portsmouth Municipal Building located at 728 Second Street.  (11/17/06)

CLICK:   City Building Committee Agenda for October 9, 2006, 4:30pm to 5:45pm. (10/9/06)

CLICK:   City of Portsmouth Departmental Space Requirements from space needs analysis of July 19, 1999.  (9/10/06)

CLICK:   City Building Committee Basic Information Worksheet for Site Detail - Updated 9/4/06 Part I.  (9/10/06)

CLICK:   City Building Committee Basic Information Worksheet for Site Detail - Updated 9/4/06 Part II.  (9/10/06)

CLICK:   Letter dated August 30, 2006 from the City Building Committee Chairman to Council President informing of committee approved proposals for City Council consideration and action.  (9/1/06)

CLICK:  Documents pertaining to the Marting Dilemma. (12/08/05)

MARTING Dilemma

The MARTING BUILDING???

December 2, 2005

 

Many are speculating what City Council will do next concerning the controversy surrounding the Marting Building fiasco.  This fiasco continues to persist due to broken trust, no accountability, no plan, and lack of sensitivity to gain voter support.  The public was not included throughout the original decision to purchase the Marting Building for the nearly $2,000,000.00 but are persistent in their demands to be included now.

Council is being required through referendum petitions certified sufficient on October 10, 2005 to face the voters or repeal an ordinance passed on September 26, 2005, which moves forward with the renovation of the Marting Building.  Based on a discussion at the Conference Session (11/28/05) it appears the most cost effective time to ask the question on renovating the Marting Building would be at the May 2006 Primary Election.  With my twenty (20) years of engineering/construction background, I am unable to support the partial renovation of the Marting Building for the estimated cost of $4,500,000.00 (2002 estimate); the only justification presented was, it is required by the Richard D. Marting Foundation for the return of approximately $1,400,000 taxpayer dollars, which were improperly collected in the first place.  I requested a plan evaluating the various options and then determine our best path to resolve this dilemma.  A plan will force the Mayor and Council to be prepared for any hopes of a successful resolution.

The status of Marting Building is the City owns it.  The majority of City Council voted to appeal Judge Marshall's decision and negotiate with the Richard D. Marting Foundation instead of seeking accountability through the courts.  I believe the purchase of the Marting Building involved criminal acts by some and negligent actions by others and the loss of objectivity by all involved.  The lack of accountability of public officials has continued to spin this issue.  The lack of planning with current Council members and imposing a tax solely on the City property owners has continued the conflict.

I am interested in exploring different views and options for the building.  The City does own the building and is a liability setting empty.  It is difficult to be either for or against the renovation of the Marting Building until an all-encompassing plan is prepared to justify these actions.

The conflict could have been avoided if Council had done their homework prior to moving forward with the Marting Building.  The final decision must be critically evaluated and total consideration to all options to gain the support of the voters. 

I contend the real question, which has been avoided since the illicit purchase of the Marting Building in 2002, must be to answer how to provide adequate, efficient, and well-organized office space for our City Government.  I believe the best way to resolve this problem would be to provide adequate detailed information considering the various options: 

  1. Consider incorporating all City offices under one roof for future efficiency and maintenance, this is driven by the City's limited resources and proven past upkeep of existing building.  Also, renovation costs of the Adelphia Building for housing the Police Department has been reported to have escalated from $500,000 to $1,000,000.
  2. Consider a new energy efficient structure.
  3. Consider retail for the Marting Building.
  4. Consider renovating the existing City Building.  Evaluate the prospect of obtaining grants to restore this historic structure.
  5. Consider demolition and construction of a new complex at the existing building location.
  6. Consider a new complex at the site of the old Portsmouth High School; adjacent to the new high school facilities.  Consider utilizing the existing gymnasium as a City Recreation Facility.  The school board superintendent stated renovating the existing PHS structure is not an option and will start demolition summer 2006.  The Police Department would be located adjacent to our new school facilities which increase the security presents in the area.
  7. Consider the renovation or demolition of the Marting Building with a new complex at the location.
  8. Consider alternate ways to finance City office improvements (renovation or new).  The only option Council has considered is the Debt Retirement Fund; it requires only Councils vote.  Council would issue bonds to pay for the improvements and acquire annual payments, up to $500,000 per year.  This style of collection would involve solely the property owners that are not receiving tax abatements, until the debt is retired.  Prior to the purchase of the Marting Building, Council improperly collected over $2,000,000 through the Debt Retirement Fund until the Scioto County Tax Board refused to tax without a debt.  Consider a City Income Tax as an option to finance office improvements. (12/3/05)

CLICK:  September 14, 2005 Letter requesting the Portsmouth City Schools Superintendent input to discuss existing high school options. (12/2/05)

CLICK:  September 21, 2005 Superintendent's response to my request. (12/2/05)

I am available to discuss this issue as desired but keep in mind Council has been provided limited information.  I am motivated by a plan consisting of relevant facts and pertinent information to make an intelligent decision.  Thanks for your time and please feel free to contact me should you have any questions or comments.

UPDATED-----------------------------------------3/20/05

I have updated this site to include the issue discussed at the March 14th City Council Meeting prior to the legislative section.

EMBRACE THE SUNSHINE LAW (Attorney General's Office reply to Round Robin Sessions):  CLICK

On March 9th Teresa and I agreed to enter into a "Joint Motion of All Parties to Defer Ruling on Pending Motions and to Hold Appeals in Abeyance".  This placed our case against the City on hold in the Appeals Court because a settlement in principal had been reached with a method of resolving the differences.  The Mayor, President of City Council, and Chief of Police were to recommend and support the resolution.  It also requires acceptance by City Council which was the purpose of the motion to allow time to resolve.

Our resolution is quite simple:

  • Accept the November 23, 2004 decision of Scioto County Common Pleas Judge William T. Marshall.  City Council must accept the summary judgment that in 2002 members of the Portsmouth City Council violated the Ohio Open Meetings Act, thereby voiding an ordinance that allowed the sale of a building previously occupied by the Martings Department Store.  Marshall ruled based on precedent from a 1996 Ohio Supreme Court Case that "back to back" meetings constitute one meeting if the topic is the same public issue.  Marshall wrote the "Supreme Court likened the back-to-back meetings to legislative musical chairs that attempted to ignore the legislative intent of the stature."  Before Council passed an ordinance, Council members met in two groups of three with Richard D. Marting Foundation board member Clayton Johnson.  Marshall ruled the ordinance was passed based on a prearranged vote by Council members.  "While it is true that the minutes of the May 29, 2002, Council meeting demonstrate (the ordinance) was enacted in open session, it is clear that the adoption of the ordinance resulted from deliberations conducted in meetings not open to the public," Marshall wrote.  City Council must accept this ruling and withdraw their Appeal.
  • Avoid further violations of the Open Meetings Act of the Sunshine Laws by amending Section 4 of the City Charter to clearly permit "Executive Sessions."
  • The liability for the violation of the Open Meetings Act of the Sunshine Laws are as follows:
    • Injunction---Any person may bring suit for injunctive relief within two years of a violation, to compel the public body to comply with the law.
    • Fines----If the injunction issues, the court must order the public body to pay a civil forfeiture of $500, and all court costs.
    • Attorneys Fees----A court shall also order the public body to pay the reasonable $20,000 attorneys fees of the party who sought the injunctions through may be reduced.  Our attorney fees have been billed to us and paid as required.
    • Action Invalidated----Any formal action by a public body that was adopted in an improperly noticed or closed meeting, or resulted from deliberations that were improperly held in executive session, may be invalidated.
    • Possible Removal of Office --- A member of a public body knowingly violates an injunction may be removed from office by an action brought in the Court of the Common Pleas for that purpose by the Prosecuting Attorney or Attorney General.

After the discussion during the March 14th City Council Meeting; Teresa and I requested our attorney prepare and file a motion to withdraw from the "Joint Motion of All Parties to Defer Ruling on Pending Motions and to Hold Appeals in Abeyance".  This decision is based on the following reasons:

Mayor (Jim Kalb) stated "he respects Judge Marshall's decision but he completely disagrees with it....they met in "threes" to avoid breaking the Sunshine Laws."  The Mayor is not ready to embrace the Ohio Sunshine Laws.   CLICK VIDEO

Solicitor (David Kuhn) stated the City's Appeal of Judge Marshall's decision may be amended.  Solicitor stated the City's Counsel recommends proceeding with the appeal of all issues.  The Solicitor is not ready to embrace the Ohio Sunshine Laws.  The Appeal to the Fourth District Court of Appeals filed December 20, 2004 on behalf of City Council reads as follows:

  • The trial court erred in determining that the one year statute of limitations set forth in the O.R.C. 733.60 did not apply to bar Plaintiff's (Mollettes') claims.
  • The trial court erred in determining that the adoption of Ordinance 63-02 enacted at the May 29, 2002 Council meeting resulted from deliberations conducted in meetings not open to the public in violation of the Sunshine Law.
  • The trail court erred in determining that the separate meetings between three Council members and representatives of the seller of the Martings building violated the Sunshine Law.
  • The trial court erred in determining that Section 4 of the Portsmouth City Charter prohibits Portsmouth City Council from entering into executive session for the purpose of considering the purchase of property for public purposes which are not open to the public.
  • The trail court erred in determining that Section 4 of the Portsmouth City Charter required that citizens of the City have a reasonable opportunity to be heard at executive sessions of the Portsmouth City Council called for the purpose of considering the purchase of property for the public purposes.
  • The trial court erred in determining that the Portsmouth City Council violated the City Charter and the Sunshine Law and that Ordinance 63-02 is invalid.
  • The trial court erred in determining that real estate contract between the City of Portsmouth and the Martings Foundation is invalid.
  • The trail court erred in ordering that the deed recorded in Scioto County Record of Deeds in Volume 971 at page 448 be set aside and held for naught.
  • City Council Vice-President (Martin Mohr) asked the Solicitor if the City would drop all appeals would Judge Marshall say it never happened.  Solicitor stated it is not within his power.  Mr. Mohr stated "at least half-a-dozen or so issues that the Mollette's brought before us.....where they threaten to sue us over.......if we would accept this offer to give $20,000 would they back off any and all possible lawsuits.....and anything they threaten to sue us against?"  This is false.  We do not make idle threats.  Mr. Mohr also stated "I feel I got a gun to my head......either do it this way and give me my twenty grand or we will continue to degrade and humiliate.......and embarrass our community across the state of Ohio and the nation forever and ever."  Again this is false.  Citizens want the expectations and accountability of their City government to be raised.   Mr. Mohr stated "I had a lot of people call me and tell me the same thing......they wanted to know what happened at the meeting (Forum)........why would the City even consider paying the $20,000 back after what they put us through."  City Council Vice-President is not ready to embrace to Ohio Sunshine Laws.  His attitude and comments will only discourage citizens from holding their city government accountable.   CLICK VIDEO
  • 2nd Ward City Council (David Malone) stated those who file suit know the financial risks involved and was against the possible reimbursement (attorney fees).  City Council is not ready to embrace the Ohio Sunshine Laws.  These Laws provide the Citizens the ability to keep their City government in check.  If attorneys were not awarded their fees when they win it would not be feasible to keep their government in check.  This is at the heart of the Ohio Sunshine Laws.   CLICK VIDEO
  • City Council President (Howard Baughman) gave reasons for his involvement on behalf of the City in a settlement (in principal) of all litigation.  He was unable to reach an agreement between Council on a path to resolve supporting the agreement.  City Council is not ready to embrace the Ohio Sunshine Laws.

City Council is not ready to embrace the Ohio Sunshine Laws.  Unfortunately, it appears the issue will continue through litigation.  Teresa and I, represented by our attorney, offered in good faith to settle this controversy with all parties prior to the March 8, 2005 forum.  It has been supported by all parties except a majority of Council.  It would be in the best interest of the City Council to accept Judge Marshall's decision and withdraw their entire Appeal.  It should be recommended to amend Section 4 of the City Charter for executive meetings.  The Foundation has made an offer and the City accepted via ordinance to resolve the issues between the Foundation and the City.  It included a return of $1.4 million in grants.

Since the Ohio Sunshine Laws have become an issue in the City of Portsmouth it was a missed opportunity the majority of City Council did not take advantage of the FREE 2005 Ohio Sunshine Law Training Session given at Shawnee State University last Friday (March 18, 2005).

I would ask City Council members to consider if they were spending their own money, instead of taxpayers, would they hire an attorney and continue to appeal Judge Marshall's decision on behalf of the City in future litigation.........................I think not!!

UPDATED ----------------------------------------- 3/9/05

The litigation Teresa and I filed May 28, 2004 was successful in obtaining a $1.4 million return to the City.  The City of Portsmouth had paid over $2 million for the Martings Building and many taxpayers believe that price was too high and the public was not given the opportunity to provide input as to whether this purchase was in the best interests of the City and its citizens.  Judge Marshall ruled that the City Council of the City of Portsmouth violated the Sunshine Law and ruled the purchase was invalid.  After Judge Marshall's ruling, the Martings Foundation entered the case and filed an appeal as did City Council.  Also, as a result of Judge Marshall's ruling the Marting's Foundation has offered to return to the City $1.4 million dollars as long as the money is used to either renovate the Marting's Building or demolish that building and build a new city building at the location or lease that space to a nationally recognized retailer.  The issues in the litigation are somewhat complex and uncertain.  None of the lawyers or parties know how the litigation would end except for one thing and that is the litigation, if unresolved could continue for at least two more years and in that time the City is not making progress and the animosity and divisiveness which have plagued the community would continue and likely escalate.  To avoid - the uncertainties of litigation burdensome expenses and to help end the acrimony and promote a healing of the City we agreed to a settlement of the litigation.  This settlement is not everything I would have wanted however the City is going to receive $1.4 million dollars which it did not have before this case began and the taxpayers of the City can have comfort knowing that their voice will be heard in the future.  We hope with this resolution that the City and its citizens can improve in a positive manner - with everyone - the citizens - the City government and local business's working together to make the City of Portsmouth - a great place to live and work.

Our litigation addressed the City (Ex-Mayor and seated Council) violation of the Sunshine Laws which invalidated the purchase and returned the property to the owners with a $2 million dollar lien.  The only way for the City to recover the money was to pursue litigation against the Marting's Foundation.  Instead, the City and Marting's Foundation filed an Appeal to Judge Marshall's decision.  The litigation is in the 4th Circuit of Appeals.  The Marting's Foundation stated they have not broken any laws and the City supplied documentation to them at the time of the sale there was no laws broken by the purchase - in an effort to resolve the conflict the Martings Foundation offered to return in grants $1.4 million.  Our settlement to the litigation will be only if our attorney fees are paid.  Keep in mind, citizens  would not have the ability to hold government officials accountable if expenses were not paid when their cases are won in court.

I believe the only way to raise the expectations of our government and return the integrity and trust is to be accountable.  Taxpayers are owed accountability.  The BCI&I investigation on the purchase of the Marting's Building was completed and given to the Scioto County Prosecutor.  This dilemma occurred because of the poor decision and lack of questioning attitude of the Ex-Mayor and seated Council.

Plan on attending City Council Meetings to be involved and a part of the decision making by your representatives.  Do not be a victim of the system.  Get involved, ask questions and voice your concerns.

Citizens recently demonstrated through the recall process of the mayor and the councilpersons the purchase and renovation of the Marting's Building was not in their best interest.

The City needs to prepare an overall plan.  An overall plan, based on fact, must be used for smart decisions.  The City of Portsmouth must utilize our resources wisely.  The city is not in a position to make poor choices.  Decisions today will spend future tax dollars for a long time.  I became interested in our City government because I felt past decisions were made without all the facts and adequate foresight to address the real problem at hand.

The City needs a long term plan to develop and maintain office space for our City employees.  The Foundation should speak clearly about their offer and consider options.  The Foundation must not be allowed to obligate taxpayers to numerous specific projects because these monies would be committed to only these projects.  City Council must evaluate all the facts, based on an overall plan, and represent the taxpayers to make the most economically sound decisions. 

The Foundations offer discussed at the December 13th City Council Meeting would obligate citizens to renovate and maintain several buildings.  A grant of $500,000 at the Adelphia Building for a Police Station, a grant of $500,000 for renovation at the Marting Building, and a grant of $400,000 for a recreation complex.  The result would be three separate buildings plus the AEP Building to heat and maintain.  I am not convinced based on the existing condition of the Municipal Building the City can and will maintain these facilities.  One new facility with one roof for all City offices in one location has merit and the location of the Portsmouth High School would be a viable area.  

Additional information provided below for thoughts and comments.

ACCOUNTABILITY

The City has broken the Ohio Revised Code Sunshine Law, but even worse it has broken the trust of the citizens it serves.  City Government must be accountable to the citizens in order to regain trust and integrity.

If the $200,000 returned to the City from the Foundation was not spent for community development as per the Foundation requirements, then the City should be held accountable.  The City should be required to return the money just like any other grant monies inappropriately spent.  

If all the money expended on the Marting's Building is not returned then accountability must be a part of the solution if anything less than the purchase price of the building ($2,000,000 less $200,000), engineering fees (approx. $300,000), utilities since the purchase,  taxes lost on property, and interest lost on money used to purchase property.  Accountability will be required to return integrity and trust to City Government.  The City Solicitor should request the Scioto County Prosecutor to take action based on the existing BCI &I investigation.  This investigation should be taken to the Scioto County Grand Jury for their review.  The BCI&I investigation interviews has many inconsistencies noted with many unanswered questions. 

ADELPHIA BUILDING OPTION

 

The old Adelphia building on Washington Street has been offered to the city.  It was discussed briefly as an option to consider as the new Police Department.  It would require approximately $500,000 for renovation.  The building offer has passed a second reading on February 28th.  The owner, a California resident owes approximately $18,000 to Scioto County taxation department on this property.  If the city would accept the property the owner would receive the appraised value for his tax purposes.  The city would be obtaining prime business property for the cost of $18,000.00, which is what is due in back taxes to the county.  But, prior to assuming this property a title search would need to be completed by the city Solicitor to ensure no other liens are assessed to this property.  The property is still a bargain at $18,000.00.

I feel the best option would be if a business would purchase this property thus maintaining a tax base.  If this is not possible the City could accept the property and evaluate the options, but I do not feel the city should enter into the real estate business.  I do not necessarily feel this property to be beneficial as a new Police Department because I feel all city offices would be more economical to maintain with one roof.  The City has not presented all the options and information for a new Municipal Building, Recreation Facility, Police Building, and offices located in the old AEP Building.  The City Departments should not be "piecemeal" around town but work together under one roof.  But, prior to any decision all options should be considered with input from the citizens that will be paying for the city space(s).  I do not feel the City, at this time, is in a position to renovate three (3) buildings and maintain four (4) separate areas for offices (maintenance, utilities, upkeep, and loss of tax base).

After the City Health Department meeting (January 26th) I requested the Mayor to prepare legislation to accept the Adelphia Building offer so it can be discussed in open forum at the next City Council meeting.  It would be recommended the Solicitor complete a title search.  It appears the City Health Department will need additional space in the future with expanding services.  The Adelphia Building has many options.  Whether it is used for Police, City Office Annex, Health Department, resold later for retail business, or demolished for the property.  Money would not be appropriated until an overall plan for City Office Space is developed.  The best option would be for a business to purchase the building and the City realize an improved tax base, but it may not happen at this time.  

NEW CITY BUILDING OPTION

The Portsmouth City School board superintendent has offered the city the gymnasium and the associated property after the old high school is razed and land readied for new structure.

I feel this is a positive move for the city.  The new schools are already being built in this area and to have our new municipal complex and city offices in this location would be a plus for the schools and our town.  The gymnasium could be utilized, by the city, for enhancement of our recreational needs for our children.  This area would also provide an easy access to all areas of our town by the Police Department.  It would provide for new construction that would be easier to maintain, would have state of the art construction, and more energy efficient, and would take us into the near future with minor maintenance in the far future.  Information will need to be prepared to evaluate this option.  On the surface it makes sense to keep all offices in one place with under one roof for maintenance and utilities.

I feel it is the best option for a new municipal complex.  It would include all city government offices and the police department.  The existing gymnasium could be used as a city recreation facility.  The new building would be a state of the art construction for economical maintenance and utilities and centrally located for easy access.  It would also add additional security to the new city schools and surrounding area.

EXISTING MUNICIPAL BUILDING OPTION

An option has been voiced by various residents to remodel of the current municipal building on 2nd Street.  I also feel this could be a plus for the city because of the current location of the building.  A structural evaluation will need to be performed to determine this option.  A couple limitations on this idea is the current parking situation and the idea this area could benefit the city by the sell that would help revitalize our downtown.

Web Hosting Companies