Judges hear arguments from city, county in sewer suit

ATHENS–Before a panel of three judges Thursday, the ongoing sewer dispute between the city of Marietta and Washington County hinged on the court’s interpretation of two words: “shall” and “handle.”

The case was initially filed in Washington County Common Pleas Court in December 2017 on behalf of the city to enforce the 40-year contract between the county and city to convert two areas of Muskingum Township predominately served by private septic wastewater treatment.

Original deadlines were not met by the county in the contract schedule, and after failed attempts to negotiate the sewering of Devola and Oak Grove, Marietta City Council passed legislation to hire special counsel Matt Dooley to aid in the enforcement of the contract.

But in December 2018 Appointed Judge Linton Lewis dismissed the city’s lawsuit on the grounds that Dooley did not have the authority to file on behalf of the city, citing Marietta City Codified Ordinance, Chapter 135, Section 1.

The section reads:

“Any and all legal matters, actions, duties and responsibilities, both civil and criminal, shall be handled by the regularly elected or appointed Director of Law.”

The city not only appealed that decision but also filed a separate lawsuit with Marietta City Law Director Paul Bertram as the primary counsel on the second suit with the same breach of contract allegations–that second lawsuit is currently stayed while both parties await the findings on the appeal argued Thursday.

Bertram argued Thursday before the Fourth District Court of Appeals in Athens that the initial lawsuit was “properly instituted.”

He said that the city law director has the authority to assign legal actions on behalf of the city with discretion–in this case, by utilizing outside legal counsel to file the lawsuit.

But Washington County Prosecutor Nicole Coil argued that all litigation must be instituted by the city law director’s office, with the allowance for special counsel only to share the desk as co-counsel if needed, not to act without Bertram named on the initial filing.

“I don’t believe anybody else has the authority (to litigate on behalf of the city) outside of that office,” said Coil. “I don’t think he can abdicate his responsibility.”

Coil was questioned by Judge Matthew McFarland as to applicable case law on the issue looking to City of Cuyahoga Falls v. Robart from 1991 where the Ohio Supreme Court ruled that the law director may only be replaced with outside counsel when the law director is ill, absent or otherwise disqualified from acting in a case.

She also argued that Marietta City Council’s additional formal resolution in 2017 (Resolution 55) could not retroactively apply to the initial lawsuit allowing outside counsel to file against the county, nor include the Washington County Board of Health in the suit.

Bertram argued in rebuttal that outside counsel was not only used by the city and county in crafting the original 40-year contract but is also commonly used by the municipality for purposes of bonds, labor negotiations and other specialized actions.

He said the city’s codified ordinance allows discretion in the interpretation of “handle” to be managerial for such additional work.

Judges Jason Smith, Mike Hess and Matthew McFarland heard both counsels’ arguments and will next make a decision to either uphold the trial court’s decision to dismiss the original case ruled on the grounds that special counsel did not have authority to file on behalf of the city, or to rule in favor of the city’s appeal.

Three weeks ago the two parties also met in informal mediation over the sewering of Devola and Oak Grove, but Bertram reported no progress out of that meeting concerning any movement on Oak Grove plans.

Plans to sewer Devola are ongoing because of a separate judgment in December 2018 enforcing Ohio Environmental Protection Agency orders to sewer the community.

Janelle Patterson can be reached at jpatterson@mariettatimes.com.

At a glance:

• Ohio’s Fourth District Court of Appeals heard oral arguments in the sewer dispute between Marietta and Washington County Thursday in Athens.

• Judges Jason Smith, Mike Hess and Matthew McFarland heard the case.

• Washington County Prosecutor Nicole Coil argued that outside counsel had no legislative authority to file the lawsuit against the county.

• Marietta Law Director Paul Bertram asserted that he had the power to delegate special counsel to file on behalf of the city.

• Case 17OT283 alleges that the county breached the 40-year contract to sewer Devola and Oak Grove and send resulting wastewater to the city’s wastewater treatment plant.

• Case 18OT264 submits the same complaint but is stayed while the appellate court determines litigant authority.

Source: Times research.


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