The Ohio Ethics Commission, in an advisory opinion, said five Cincinnati City Council members cannot vote on a motion asking them to reimburse the city for legal expenses and fines related to private texts sent between them that violated the state's open meeting law.
Vice Mayor Christopher Smitherman's motion was introduced in late March. It reads: "We move that the council members be responsible for paying their $176,000 legal bill and penalties after admitting to violating Ohio Open Meeting Law on March 7, 2019."
After he introduced the motion, he asked the city solicitor's office to inquire with the Ohio Ethics Commission whether the five council members involved could vote on his motion.
"The five council members are prohibited from voting, participating in discussions or deliberations, or otherwise using their authority or influence, formally or informally, in matters regarding the motion, a resulting ordinance, and any related procedural motions that arise under the city council's parliamentary process that affect the motion's passage, tabling, or non-passage," wrote Ohio Ethics Commission Staff Advisory attorney John Rawski.
A city council motion is non-binding, but Smitherman had suggested he would introduce an ordinance if the motion won approval. An ordinance would be binding.
But Section 5 of the City Charter states: "no legislation shall be passed without the concurrence of a majority of the members elected to the council."
There are nine council members, and if five cannot participate, there's not a majority of the elected members.
Vice Mayor Smitherman said on Twitter "this ruling will create a constitutional crisis at city hall."
(1/2) The following is the conclusion made by the Ohio Ethics Commission as it relates to the self-proclaimed “Gang of 5” and their ability to vote on city matters related to the case.
This ruling will create a constitutional crisis at City Hall. pic.twitter.com/s8Ame2Eilk
— Christopher Smitherman (@voteSmitherman) May 7, 2019
Former Cincinnati City Solicitor John Curp disagrees.
"No crisis," Curp said in a text message. "Charter is clear. Need five votes to pass an ordinance. It fails."
Curp also said the advisory opinion is flawed because it fails to address whether a motion is something of value. He said motions play no role in the legislative process.
Five Democratic members of Cincinnati City Council – P.G. Sittenfeld, Greg Landsman, Tamaya Dennard, Chris Seelbach and Wendell Young – admitted in the court case that they secretly held meetings via text messages and emails in March 2018 while Mayor John Cranley was trying to fire now-former City Manager Harry Black.
The city paid $101,000 to settle the case. That included $90,000 to pay for plaintiff attorneys fees, and another $11,000 for fines.
The city also spent $75,000 for two outside law firms to handle the case against the council members until the city solicitor's office resumed representing them.