The City Offers Partial Clarification

Mrs. Westfall's comments Monday night lead to an email

This publication has come into possession of an email sent from the City’s Top Bureaucrat, which was sent to himself and copied to other city officials. The email is presented in the screenshots below.

(Note: The phone number has been redacted from this last screenshot)

The decision to publish these screenshots was made after the Mayor lifted one portion of this email in a social media post in an attempt to “provide clarification”

This publication takes the stand that if one significant portion of this email is put forward for public consumption, it is in the public’s best interest to have the whole message available to the public. Selective sharing of only parts of public records do not provide a service to the public, and often only serve the self-interests of those who have written the public record.

The message sent by the City’s Top Bureaucrat is an absolute treasure trove of rich information as we see the efforts certain individuals in the city building are taking to derail this $1.3 million project, or to possibly wrestle the end use from the hands of the building’s owner. Let’s explore some of these statements.

The $20,000 Lawyer

Councilwoman Susan Westfall questioned why the City Administration is paying $20,000 to outside legal counsel to represent the City in the on-going legal proceedings.

First, the City has not paid $20,000 to an outside attorney. In compliance with state law, the City has reserved the sum of $20,000 in the 2024 budget in the event that these legal expenses, which are paid ‘as you go’ on an hourly basis, as they are actually incurred;

Like most statements from the City’s Top Bureaucrat, there is a morsel of truth here. The City has not paid $20,000 to an outside legal counsel to litigate the settlement agreement that was made in December. Rather, what the city has done is issue a $20,000 purchase order with the outside legal counsel. That purchase order signals at the intent for the city to pay up to $20,000 for legal representation. Just because those costs haven’t been incurred up to this point, doesn’t mean that further litigation will not be pursued by the city and the entire purchase order amount of $20,000 will not be paid.

This is not unprecedented in these legal proceedings. In 2023, the Miami County Prosecutor declared a similar conflict of interest for his office, due, at least in part, to the fact that multiple County officials, including County Commissioner Wade Westfall, Chief Building Official Rob England and other officials were requested to be deposed in the then-on-going litigation. As a result, the Miami County Commission, at their November 30, 2023 Commission meeting, passed Resolution #23-11-1471 and appointed not one but two separate outside lawyers to represent the County officials’ interests. The cost of those outside legal counsel services was estimated at up to $100,000, according to newspaper reports (Miami Valley Today, December 4, 2023).

The County’s Lawyers

This statement is problematic for a number of reasons. First, Resolution #23-11-1471, adopted by the Miami County Board of Commissioners, was not for two outside lawyers. The resolution was for one lawyer, as shown by the adopted resolution below:

But instead of getting mired in small details, it’s important to recognize that the hiring of a $20,000 lawyer could be seen as “unprecedented”. The form and substance of this litigation changed considerably on December 22, 2023, as all parties agreed to the Settlement Agreement. It provided a framework for all parties to begin to work together for common goals, rather than to continue the fight through the legal system. The only party to the agreement that has employed an additional lawyer since December 22nd is the City of Troy - again at a cost of $20,000 to the taxpayers of the community.

How The City is Being “Helpful”

Perhaps the most enlightening part of the Top Bureaucrat’s message was how he views the City being helpful to the efforts of the owner of the building.

Finally, Mr. Sutherly asked what the City of Troy is doing to support THPA’s efforts to finish stabilizing the building. It is important to repeat that there has not, is not nor will there be any intent to impede the progress of the IOOF Building’s stabilization efforts. The City will continue to be supportive of all efforts to stabilize the IOOF Building under the terms of the Settlement Agreement. Here are three ways we have tried to be supportive:

The City did NOT file a formal motion with Judge Wall regarding the March 1^st deadline interpretation;

On Friday, March 29^th, Troy Fire Prevention Inspectors visited the IOOF Building project site in an informal capacity, to review the status of the construction work, with the specific purpose of documenting any access changes into and out of the building. The Fire Department often makes inspections of construction projects to ensure that, in the unlikely event of a fire, firefighters can attack as quickly and safely as possible. With large and complex projects such as at the IOOF Building, door and floor access may be open one week and closed another. Having the most updated information on file with the Miami County Dispatch Center can mean a matter of seconds in responding and attacking a fire. If this sounds like an exaggeration, statistics show that buildings under construction or renovations are at their most vulnerable and at highest fire risk. I would remind you of the fire incident that we responded to several years ago during the reconstruction of Haren's. The point is that as unlikely as it is, it could happen and with many buildings (including IOOF) not currently having active fire suppression systems, it is imperative that we inspect so that we meet our two primary fire fighting objectives of protecting the life safety of anyone in the building and conserving the building itself. That's being very supportive of this project, to say the least;

Finally, in anticipation of stabilization work being completed, the Adjudication Order lifted and the fencing on West Main Street being removed, City staff has been reviewing previous renovation cost estimates, redevelopment ideas from 2021, as well as any inquiries we’ve received about potential downtown opportunities. Staff stands ready to meet with the THPA to discuss the feasibility and timeframe in which the building can become fully occupied.

There is quite a bit to think about in these statements.

It’s interesting to note that the City’s Top Bureaucrat believes that having the new lawyers send a letter to Judge Wall asking her to require the owners of the building to stop work and order the building demolished was actually being helpful, because the city didn’t go to the trouble of actually making a filing with the court. In all reality, a court filing would have taken more time and could have easily cost the taxpayers more money. The Top Bureaucrat’s reasoning that it took a bad approach (a letter to the judge) over an even worse approach (a court filing) is simply laughable.

The City’s Top Bureaucrat also stated that the Fire Department’s informal inspection on March 29th was supportive because if a fire were to break out, conserving the building itself would be a goal of the fire department. The Top Bureaucrat cited that buildings going through renovations are often at the highest risk for fire.

This publication would argue that vacant buildings, in general, are at a risk for fire. And in fact, this publication has made an argument that the City should consider adopting a Vacant Property Ordinance for the community.

If the City’s Top Bureaucrat is finally ready to prevent another IOOF/Old Miami Courthouse debacle from happening in the future and is ready to propose a vacant property ordinance for commercial properties, this publication stands in full support of brining that topic in front of the City Council for a full-throated discussion.

This publication has heard that the March 29th inspection by the Fire Department was not announced; let’s hope that is not the case. Public servants and private interests need to work together to ensure the safety of everyone involved with the project. I have no doubt that complex projects, such as the stabilization of the IOOF/Old Miami Courthouse have safety protocols in place and there are safety checks take place daily on site and those protocols would be shared by any governmental authority that needs to have access to the building.

It’s also important to realize that the IOOF/Old Miami County Courthouse is an active stabilization site. If certain officials want to look at the building, I am completely positive that appointments could be made to get those officials in the building quickly to ensure the safety of those visiting, inspecting and working on the building. To simply just show up unannounced on an active construction site isn’t exactly a best practice promoting the safety of all involved.

The Desire to Hide

One of the most disheartening parts of the email from the City’s Top Bureaucrat was this line:

Please do not email or text me regarding this email but, rather, call me on my cell phone

The reason the City’s Top Bureaucrat wants these things handled through cell phone conversations is that because things that are written are generally treated as public records and can be requested from the City.

There are good reasons for not having certain public records exposed; for example, this publication did not reveal the number of the taxpayer purchased cell-phone that was in the original email. Public employees deserve to have their rights as private individuals respected, and those individuals do not deserve to be doxxed to any greater extent than is already provided.

However, exception to public records laws should not be seen as a general way to do business. Public service is based on the philosophy that individuals are there to serve the citizens and the vision, mission and goals that the public has general agreement about.

Access to public records and public dialogues helps provide explanations and context on whether those public officials are acting in the public’s best interest or another interest.

The Damaging Effect on Public Discourse

Perhaps the most damaging effect of this email from the City’s Top Bureaucrat is that this screed came as a direct result of one elected official speaking out in a public meeting.

At every public meeting, public officials have the opportunity and even the obligation to speak to the individuals that put them in public office. Speaking one’s reasoned thoughts has been part of the American experience even before our nation was formed. In fact, this entire publication is dedicated to having better and more informed conversations about the decisions that are made in our hometown. If we are going to have a community that is more aware, more generous and more neighborly, public discourse should be encouraged, not discouraged.

If every time a public official speaks at a public meeting and the end result is a tirade of half-truths and cherry-picked statements that are proffered to “provide clarification”, it speaks unbelievably poorly of our community’s leadership; both elected and bureaucratic.

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