Three Hilliard City Council members have taken legal action in an effort to prevent President Nathan Painter from appointing a new member.

Judge Mark Serrott issued a stay and on Jan. 30 will give further consideration to the dispute concerning interpretation of the Hilliard City Charter during a "mediation conference," said Hilliard law director Tracy Bradford.

The mediation was rescheduled from the original date of Feb. 2, she said.

A lawsuit seeking a temporary restraining order to challenge Bradford's legal opinion that Painter remains president and to block him from acting in that capacity was filed Jan. 25 in the Franklin County Court of Common Pleas by the Hilliard-based Lardiere McNair law firm on behalf of council members Tom Baker, Les Carrier and Andy Teater.

City Council's six members have failed at three consecutive meetings to name officers for 2018, deadlocking 3-3 in every vote.

Bradford has ruled that Painter and Kelly McGivern – elected to two-year terms as president and vice president at the organizational meeting in January 2016 – remain in those offices until new leaders are selected.

Teater said Serrott's decision means Painter would not be permitted to appoint a replacement for Joe Erb, who resigned Dec. 14 because he was moving out of Hilliard.

“We’re satisfied," Teater said. "It gives us a chance to work toward a compromise and that is good for everyone."

City Council members had 45 days from Erb's effective resignation to name a successor or the council president may make the appointment, per the city charter, according to Bradford. The 45-day window ends Jan. 28 and the council president “shall” within 10 days make an appointment, she said.

Bradford agreed that because of the stay, "no appointment to council will be made during this time.”

Painter said Jan. 25 he would abide by any binding decision and is not perturbed the matter required a judge’s intervention.

“It is what it is (and) the judge has spoken,” Painter said. “I’m not mad (that a lawsuit was filed). This is simply a good-faith disagreement.

"There are 14 good people in front of us (and) 14 solutions ... the charter provides for us as a way to appoint (a new) member, and I look forward to completing that process."

Both sides contend that they are following the city charter.

“We are following the city charter,” Councilman Al Iosue said. “The law director represents all of City Council, not just (some) members. ... Just because (a member) does not agree with an opinion does not mean the charter is not being followed.”

“We just want the city to follow the rules of the charter,” Teater said after a Jan. 22 meeting at which the six members again failed to choose a president or vice president and also deadlocked on five new-member nominations from a field of 14 applicants.

The Jan. 22 officer nominations were Iosue and Teater for president and Baker and McGivern for vice president. Council members also failed to name a president or vice president at an organizational meeting Jan. 4 and a regular meeting Jan. 8.

The five new-member nominations were Scott Brown, Johnny Dawson, Michael-lynn Evans, Kurt Gearhiser and Pete Marsh.

Every deadlock has been along the same lines, with Baker, Carrier and Teater on one side and Iosue, McGivern and Painter on the other.

Baker, Carrier and Teater decided to involve the court system last week.

Their attorney, Darren McNair, sent a Jan. 22 letter to council clerk Lynne Fasone that stated, “Unless the council will agree to proceed as we have outlined ... we will have to escalate this situation.”

The letter said an agreement had to be reached by Jan. 23 or a lawsuit would be filed to restrain Painter and McGivern from “holding over” as acting president and vice president, respectively, “and from conducting any further business as council leadership.”

Bradford said Jan. 24 the city offered to conference to avoid litigation.

“Though we disagree with their analysis and conclusion, we are certainly willing to discuss the matter,” she said. “I hope they will take us up on our desire to engage in meaningful dialogue prior to filing a lawsuit.”

Bradford said the position held by Baker, Carrier and Teater is “predicated on a misinterpretation of the charter” and is “a fallacy.”

Carrier and Teater have cited section 2.12 of the city charter: “In the absence of the president and vice president, the council members present shall elect a temporary presiding officer from among their own number to serve during the meeting.”

On Jan. 8, Teater nominated Iosue, who voted against Teater’s nomination for president Jan. 4, as a presiding officer, but Painter rejected it because it conflicted with Bradford’s legal opinion that the office of president is not vacant, nor is anyone absent from it.

A vote on whether to sustain Painter’s decision was called and it deadlocked 3-3.

McNair’s legal opinion, relying on the city charter and the operating rules of council, is that the terms of Painter and McGivern ended when the organizational meeting was convened Jan. 4.

McNair said the deadlock prevents the selection of a seventh member, a president, a vice president and even a presiding officer, and he agreed with Bradford that “there is no tie-breaking procedure.”

He said the city must follow Ohio Revised Code, Section 731.43(B), which calls for the new member to be chosen by “the residents of that city who are members of the county central committee of the political party by which the last occupant of that office was nominated.”

In this instance, the members of the Franklin County Republican Central Committee who represent Hilliard would appoint the seventh member, McNair said.

“We believe that the plain language of the Hilliard City Charter and the operating rules ... makes this much less complicated than it seems,” he wrote.

Bradford said she was unaware of a council member ever filing a lawsuit against other council members or the city.

The city is being represented by special counsel Philip Hartmann, an attorney with Frost, Brown Todd.

A Jan. 22 press release from Keep Hilliard Beautiful said the organization was backing Baker, Carrier and Teater. The trio helped form Keep Hilliard Beautiful in 2016 to support Issue 9, which voters approved to amend the city charter to prohibit City Council from rezoning by emergency and from using tax-increment-financing agreements for residential developments and those with residential components.

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