TIFFIN A sworn statement by a former Tiffin newspaper reporter is being used to revive an attempt by local preservationists to stop Seneca County commissioners from razing the 1884 courthouse.
John Barga, attorney for six county residents who sued over the issue, said an affidavit filed with the Ohio Supreme Court in support of The Blade s lawsuit against the commissioners could be the evidence he needs to convince visiting Judge Charles Wittenberg that the commissioners violated the public-meetings law.
Mr. Barga filed a motion in county Common Pleas Court yesterday asking Judge Wittenberg to issue a preliminary injunction that would prohibit the commissioners from demolishing the old courthouse.
His motion is based on newly discovered evidence, including an affidavit by former Advertiser-Tribune reporter Kendall Cable in which she said commissioners admitted to her last year that they discussed and exchanged e-mails about a plan to demolish the courthouse before taking a vote on the matter at a public meeting.
Based upon newly discovered evidence, we want the trial court to revisit the issue of the preliminary injunction, Mr. Barga said. With this new evidence, we believe we have met the threshold required by the law, and we are hoping that he will agree with us and issue the injunction.
On Aug. 28, Judge Wittenberg denied the preservationists motion for a preliminary injunction saying they had not proven that commissioners engaged in deliberations in a nonpublic setting in violation of Ohio s open-meetings law before deciding to tear down the courthouse.
Mr. Barga submitted to the court Ms. Cable s affidavit along with e-mails recently turned over to him during the discovery process between Commissioner Ben Nutter and a private citizen in which they discuss plans for the courthouse.
Mark Landes, a Columbus attorney who represents commissioners in the suit, said there was nothing sinister about commissioners talking to local people about an issue of interest like the courthouse.
It is the holiest act in the church of democracy, he said. Our elected representatives like Ben Nutter are doing what democracy wants when they communicate to the citizens who elected them.
He said opponents of the new courthouse have the right to seek an injunction.
If they think they have the evidence to win, that is what they should do, and we welcome that, because it will be an end to their wasting of taxpayer dollars, Mr. Landes said.
In her affidavit, Ms. Cable said she spoke to commissioners immediately after the board voted 3-0 on Aug. 31, 2006, to adopt a 15-year space-needs plan for the county that called for razing the courthouse. She said the plan had not been discussed in public before the meeting and was not discussed at that meeting before the vote was taken.
When she asked commissioners how they had decided on the plan without discussing it in an open session, then-Commissioner Joseph Schock said he would go to Commissioner Ben Nutter s office and they would talk things over regarding the plan.
One of the commissioners stated that they also e-mailed each other while drafting the document, sending their comments back and forth by e-mail, she stated in her affidavit, which was filed in support of The Blade s lawsuit seeking to force commissioners to turn over e-mails related to the courthouse demolition.
Mr. Barga said Ms. Cable s statement, along with the evidence and testimony presented during a hearing on the injunction this summer, makes it very apparent to me that all they did was present it and sign it. It was a done deal before they walked in.
The affidavit is very important because it contradicts the heart of Ben Nutter s and Dave Sauber s testimony, he added.
Both of the commissioners testified during the court hearing that they did not discuss the 15-year plan before voting on it. Mr. Nutter confirmed that he sent an e-mail to his fellow commissioners with a draft of the plan attached and asked them to get back him with any changes. Subsequently, he said, he e-mailed a final draft, but he testified that neither of the commissioners gave him any feedback about the suggested changes.
I wouldn t expect any from them because they know we have to discuss those things in a public meeting, Mr. Nutter said from the witness stand.
Mr. Sauber testified that he reviewed Mr. Nutter s plan before the meeting.
I read it and I had no issues with it, Mr. Sauber told the court, adding that he had no communication with Mr. Nutter about it.
In addition to the action in Common Pleas Court, Mr. Barga has appealed Judge Wittenberg s Aug. 7 decision to dismiss two of the preservationists claims against commissioners that they breached their fiduciary duty by failing to obtain expert advice and explore all options before deciding to raze the courthouse, and that commissioners did not have statutory authority to demolish the courthouse.
He also asked the Lima-based 3rd District Court of Appeals to issue an injunction against commissioners while the appeal is pending. The appeals court has not ruled on the request.
Contact Jennifer Feehan at: email@example.com or 419-353-5972.