Washington County Board of Health removed from sewer lawsuit

Judge also questions whether city had right to hire special counsel

The hiring of special counsel by the city of Marietta in a lawsuit against the county regarding the sewering of Muskingum Township is being called into question.

Two lawsuits are in place regarding the issue: one filed by the Ohio EPA and one by the city of Marietta, both seeking to have the county comply with a plan to sewer the area.

Last week Appointed Judge Linton Lewis ruled in favor of the Ohio Environmental Protection Agency, against the Washington County Commissioners saying the commissioners must sewer Devola per Ohio EPA orders.

Then Monday Lewis filed another ruling, this time concerning the Marietta city lawsuit against the commissioners and the Washington County Board of Health for not sewering Devola and Oak Grove per a contract with the city.

“Basically this is a procedural decision,” explained Washington County Assistant Prosecutor Nicole Coil, Tuesday after she learned of the second ruling. “It is essentially dismissing the case as it relates to the board of health.”

The city had named both the commissioners and health board in its suit, claiming the commissioners were in breach of contract and the board was not doing its duty to protect the health of county citizens.

Coil had previously filed separately for summary judgments in the city case, calling into question the legislative authority of the city to hire special counsel to sue the commissioners and the board of health.

City Law Director Paul Bertram has maintained that Marietta City Council had the right to hire special counsel Matthew Dooley, as it did in October of 2016 to represent the city in the dispute.

To date, the city has paid $282,953.41 to Dooley’s firm for legal counsel in the matter, according to the city auditor’s office.

But on Tuesday Bertram would not comment on the ruling in favor of the board of health, and Dooley did not return calls for comment.

“The ruling does not dismiss the case outright, simply removes the board of health from the equation,” noted Coil.

“And while this (decision) does not involve the commissioners, in my opinion, the reasoning would be the same and that could end the case,” said Coil. “I think the legal analysis could be the same that the city did not have the legislative authority to hire Dooley to file the suit against them either.”

In Lewis’s ruling, he cites the city’s website that the law director serves as the city’s legal counsel.

“The Law Director’s website makes no reference to managing, directing or supervising legal actions, but rather speaks of serving as legal counsel and prosecuting attorney and ‘handling’ his duties in that matter,” he wrote.

Lewis ruled that preceding exceptions for not representing the city, namely illness, absence or any conflict of interest, have not been cited or met.

“This is not based on merits of the case, though I did file a motion to dismiss on merit too,” said Coil. “They could appeal or they could start all over with Mr. Bertram filing the suit.”

Coil also said in the separate case with the Ohio EPA, that she is meeting with the Washington County Commissioners prior to Thursday to discuss whether or not they will appeal the order to sewer.

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