Conflict erupted between Liberty Township’s former fiscal officer, Mark Gerber, and the current fiscal officer, Nancy Denutte, at Tuesday’s township trustees meeting.
At issue was the township’s program that allows some employees to opt out of health insurance and receive cash instead.
Denutte said the practice is not legal, according to state law; Gerber insisted that the program is legal.
“We are really non-compliant,” Denutte said. “We need to cease payment immediately, according to (a legal) opinion, because we are against the law.”
Denutte gave a rough estimate of $550,000 the township has paid out since 2010 on the opt-out program. “We are 100 percent out of compliance,” Denutte said. “There is not a nickel we have spent that is in compliance with the Ohio Revised Code.”
“I don’t want to turn someone’s life upside down,” Trustee Shyra Eichhorn said. “We have a lot of people who have set a budget based on a paycheck they are getting.”
“We’re not going to settle all those issues right here,” Trustee Tom Mitchell said.
“Before we turn people’s lives upside down for a period that is undetermined,” Mitchell said, “what I suggest is we talk to this attorney.” On the recommendation of the Delaware County Prosecutor’s Office, Denutte met with an attorney who specializes in employment law to get an opinion on the township’s insurance opt-out incentive program.
“I have it in writing from (assistant prosecutor) Chris Betts that he said you need an expert in employment law and collective bargaining,” Denutte said. “I met with the attorney and gave him my information I found on the Ohio Revised Code.”
“I was told by counsel that we need to cease right now and get with the unions and rework our plan,” Denutte said.
“Is there anything we can do at all to Band-Aid anything?” Eichhorn asked.
During the public comment portion of the meeting, former fiscal officer Gerber spoke about history of the opt-out program.
Gerber said the program was looked over by an attorney before trustees passed a resolution in December 2009. “It was declared perfectly legal,” he said.
Gerber offered further testimony to back up the legal status of the program. “When we got our audit for our 2008-2009 financials, the auditors had no problem,” he said.
“You’re saying this hasn’t changed.” Eichhorn said. “I think the argument lies in whether we are compliant or not.”
“It’s a great idea to incentivize our people to go elsewhere for insurance because it’s so expensive,” Denutte said. “But there are very specific laws of how we do it.”
Gerber argued the law had not changed but the section had been moved in the ORC. “The law is the same as it was in 2009,” Gerber said.
Denutte said township employees can find insurance elsewhere and the township would reimburse them up to a certain amount. The amount of the reimbursement currently is 50 percent of the premium.
“Compliance for the cash in lieu program under (Ohio Revised Code) 505.603(C), cash cannot exceed 25 percent of the premium,” Denutte said. “We did not put it under 505.603 (C).”
Denutte told trustees she has looked at other options to make the opt-out program legal and work. “The program doesn’t fit anywhere,” she said. “We’re non-compliant no matter which way we try to make it fit.”
The township will need to meet with the unions to talk, Denutte told trustees.
“We have to rewrite the plan if we stay with cash in lieu,” Denutte said. “We just have to put in place the item within cafeteria that allows us to do cash in lieu and then we have to determine the percent we are going to pay and we have to negotiate that with the union.”
However, Trustee Melanie Leneghan noticed that one of the documents that Gerber handed out to back up his claim was what she termed an “attorney-client privileged email” to trustees.
“How is Mr. Gerber in receipt of attorney-client information?” Leneghan asked.
“It showed up in my email,” Gerber said.
“You just told me you got attorney-client privileged information emailed to you,” Eichhorn said. “We need to call immediately and pull everything that went out.”
According to officials, after trustees met in executive session, the Delaware County Sheriff’s Office was called about the email.
Trustees have scheduled a special session to continue discussion on the opt-out program at 2 p.m. Friday at township offices.
Denutte defeated Gerber in last November’s election for the position of township fiscal officer.
D. Anthony Botkin may be reached at 740-413-0902 or on Twitter @dabotkin.