Due to scheduling conflicts, Judge Guy Reese II granted a continuance Tuesday in the Liberty Township “removal for cause” case filed against trustees Melanie Leneghan and Michael Gemperline. The court will reconvene at 9 a.m. Aug. 12.
Before dismissing the court, Reese offered both sides some advice.
“It’s always good to talk with each other and attempt to resolve matters yourself,” he said. “If you do that, quite often both of you will walk away feeling that you gained something as opposed to continuing in court and the court having to make a decision that as to what is proper action.”
Earlier this month, Save Our Services (SOS), a Liberty Township group, filed the “removal for cause” petition, which contained over 4,000 signatures, against the two township trustees on the grounds of “willfully and flagrantly exercising authority or power not authorized by law, refusing or willfully neglecting to enforce the law or to perform official duties imposed upon them by law, and is guilty of gross neglect of duty, misfeasance, malfeasance, and nonfeasance.”
Attorneys for the two trustees had earlier filed a motion to dismiss part of the complaint concerning a resolution to replace the township’s fire-based emergency medical (EMS) with that of Delaware County EMS.
“It is based on pure speculation about some hypothetical future event, not any action the trustees have taken and is not ripe for adjudication,” states the trustees’ motion for dismissal.
Attorney for the trustees, Brandon Abshier, with Reminger Attorneys at Law, stated that part of the claim has no stance and the things listed by opposing counsel were all separate claims listed elsewhere in the complaint.
“We have not yet filed to dismiss the entire claim,” he said. “These are all hypothetical damages if this (EMS) plan might have happened or if this plan gets passed at some point. There’s no plan.”
SOS’ attorney, Cory Colombo, of McTigue & Colombo, LLC, said it’s not whether an action was taken but the process of getting the resolution on the table and the resulting damage to the township and firefighters that has occurred along the way.
“Our argument is the mere fact that a resolution was placed on the agenda, leaving residences and township firefighters unsure if they would be handling the services the next morning,” Colombo said. “The crux in our opinion is what the plan has already done on its way to being proposed. Our argument is based on misfeasance.”
Before allowing the motion for partial dismissal, Reese said he reviewed the motion in the context of what the Ohio Revised Code provides.
“Basically, in looking at that, it speaks to willful or fragrantly exercising power not authorized by law. Refusal or willfully neglect to enforce the law, gross negligence of duty, gross immorality, drunkenness, misfeasance, malfeasance, nonfeasance,” he said. “I guess when I reviewed the first claim here, I have a problem finding that. I don’t think it’s actionable at this point.”
“I believe that the court should sustain the motion to dismiss that portion of the complaint,” Reese added.
Nico Franano, spokesman for Save Our Services, said the granting of the partial dismissal wasn’t really a concern for the group.
“The acts, that (Leneghan and Gemperline) didn’t commit, in pursuit of a goal that hasn’t been realized, are still serious misconduct in the way they went about it,” Franano said. “It wasn’t serving the public interest. We look forward to making that case on (Aug.) 12.”
Franano said that he thought that Leneghan and Gemperline had started to “appreciate the seriousness of the proceeding and the weight of 4,000 signatories seeking their removal” and didn’t expect any retaliatory measures by the two trustees.
“The trustees are in office during this proceeding with full rights and powers as an elected official,” he said. “They’re going to exercise whichever of those powers they think advisable, and ultimately, that is going to be their decision. But we will certainly be watching and expecting a high level of responsibility and honorable discharge of their duties in the office.”
Ohio Revised Code 3.08 specifies that removal hearings of an elected official shall occur within 30 days of filing with the clerk of courts. With all parties in agreement, it was decided the hearing will resume on Monday, Aug. 12, and run continuously until the conclusion.
Gemperline was in attendance Tuesday, but Leneghan was unable to attend due to a prior family commitment.
Contact D. Anthony Botkin at 740-413-0902. Follow him on Twitter @dabotkin.