July 25, 2016

Mostly cloudy

Lorain judge reinstates trustee to water board

ELYRIA — Pittsfield Township Trustee Mark McConnell is back on the Rural Lorain County Water Authority board, which serves a portion of Medina County.

Lorain County Common Pleas Judge James Burge issued a temporary restraining order Wednesday ordering McConnell to be reinstated to the board from which he was removed twice in May.

Burge said McConnell’s fellow water board members didn’t have the legal authority to vote McConnell out. Under state law, Burge said, the power to remove a water board member rests with the appointing authority, which in McConnell’s case is the township.

“Hopefully I’ve been vindicated,” McConnell said after the hearing. “I’m looking forward to serving my constituents as I previously have.”

Burge’s order restoring McConnell to the board and preventing members from removing him again is good for 14 days, during which time no Rural Water meetings are scheduled.

An hour before Wednesday’s hearing was set to start, Rural Water sent out a news release postponing its meeting, which had been slated to begin at
7 p.m. Wednesday. The release said the meeting was moved to Oct. 30 at the order of board President Stanley Wares with the agreement of the Executive Committee.

General manager Tim Mahoney said that Wares, who voted to remove McConnell, is sick, and he also wanted to wait for the legal dispute to be resolved before having another meeting.

Burge has scheduled a hearing for Oct. 23 to determine if the order keeping McConnell on the board should be of a more permanent nature. The judge said Wednesday that while he was confident in his decision, if Rural Water’s lawyers can show him that he’s wrong he’d be willing to revoke the order.

Rural Water attorney Matt Dooley had argued that Rural Water’s bylaws contain a section that allows board members to be removed by a majority vote.

He said that the board actually went further than the bylaws required by presenting evidence showing misconduct by McConnell, who was accused of disparaging a fellow board member and lobbying to have certain members removed. McConnell has denied wrongdoing.

McConnell first was removed by a vote of 17-9 on May 15 using secret ballots. After the legality of the secret ballot process was questioned, the water board met again May 22 and voted to oust McConnell by a 13-11 margin in a roll call vote. Rural Water attorney Dennis O’Toole later wrote, in an opinion the majority of the board wanted to keep confidential, that while using secret ballots was legal, it was a violation of the bylaws.

County Assistant Prosecutor Gerald Innes has argued that even the second vote was invalid because there wasn’t technically a motion on the floor when McConnell was voted off.

But Burge said that was a side issue to the fact that the mechanism included in the bylaws to remove a board member isn’t legal.

Burge pointed out that under the bylaws it would be possible for 14 of the 26 board members to remove the other 12 and name their replacements, something he thought would amount to an abuse of power.

Dooley also told Burge that there was no reason to issue a temporary restraining order because there were no plans to remove any other board members. Innes countered that it was a very real possibility, and he had several Rural Water members who were willing to testify that they had been threatened with removal.

McConnell’s reinstatement was smoothed by the resignation of fellow Pittsfield Township Trustee Steve Magyar, who was appointed by the water board to replace McConnell after his ouster. Since his appointment, Magyar has been a consistent vote against the majority, much as McConnell had been before him.

After his resignation Monday, Magyar and Trustee Mark Diedrick voted to name McConnell as Pittsfield Township’s new Rural Water representative. McConnell said he abstained from that vote.

That move prompted Dooley and O’Toole to accuse Pittsfield Township of engaging in “obvious chicanery” in court documents filed before Wednesday’s hearing. The resignation of Magyar and McConnell’s appointment was designed “to create an ‘Ah Ha’ moment” to justify the township’s legal challenges, they wrote.

Dooley and O’Toole also argued that under Rural Water’s bylaws, Magyar’s resignation must be accepted by the Rural Water board before it can take effect. The water board must then appoint a replacement before Pittsfield Township can name its own replacement.

Penfield Township Trustee Rick Conrad, an ally of McConnell’s who sits on the board and has been tasked with heading up a committee reviewing the controversial bylaws, said he was pleased by Burge’s ruling.

“All I can say is common sense prevailed,” Conrad said.

Water board members Dennis Abraham, an Amherst Township trustee, and Dora Miller, a Rochester Village Council member, both of whom voted to oust McConnell, declined to comment on the judge’s decision after the hearing.

Contact reporter Brad Dicken at (440) 329-7147 or bdicken@chroniclet.com.