Riverside won’t remove councilman as judge weighs constitutionality

Council is delaying any action against Councilman Steve Fullenkamp pending judge’s decision.

Montgomery County Common Pleas Court Judge Richard Skelton asked Fullenkamp’s attorney Dwight Brannon to prepare a briefing addressing whether charter language instructing council members to “deal with” the city manager instead of city staff is vague, and whether the charter’s removal provisions are contrary to the Ohio Constitution.

The agreement was reached Tuesday at the county courthouse in Dayton while subpoenaed city staff, council members and a handful of the co-defendant taxpayers waited for news that Fullenkamp dropped a motion for a preliminary injunction. Afterward, attorneys for Riverside and Fullenkamp each expressed confidence Skelton would rule in their favor.

Fullenkamp, speaking publicly for the first time since before the pending litigation, said he was “pleased by the outcome,” which he called “reasonable for me and the residents who voted for me.”

“I still have the same powers I had before this all began and I intend to continue to practice to be a councilman to the best of my ability,” Fullenkamp said. “This is not going to impact my effectiveness as a council member.”

Fullenkamp was accused by Police Chief Frank Robinson in June of attempting to intervene during an investigation regarding resident Tom Ralston, a supporter of Fullenkamp.

Two other complaints from Director of Planning and Program Management Brock Taylor and Vice Mayor Mike Smith involve Fullenkamp allegedly telling Taylor he should have disregarded the instructions of the city manager in a long-standing zoning dispute. Smith alleged Fullenkamp’s statements were an improper interference with city administration under the charter.

Riverside Special Counsel David Williamson, who was appointed before the lawsuit to handle Fullenkamp’s removal, said “cooler heads prevailed” Tuesday, thwarting what was teed-up to be an hours-long hearing with a host of witnesses.

“Of course, we maintain the charter provisions are constitutional,” Williamson said. “What we hope for is Judge Skelton will agree and say, ‘They are constitutional, you may now proceed.’”

As scheduled, Brannon and associate Kevin Bowman will have until Oct. 11 to prepare the brief, followed by another two weeks for Riverside’s battery of six attorneys, including Williamson, to respond. Brannon will then have until Nov. 1 to reply, after which Skelton will deliver a decision.

Additionally, Riverside Law Director Dalma Grandjean will have 30 days to review and hand over “thousands and thousands” of council and city records subpoenaed by Brannon last week. Skelton originally ordered the documents, mostly emails, to be produced by Friday, but Grandjean protested, calling the request “impossible” to complete in short order.

Attorney Dawn Frick, assigned by the city’s insurance carrier to represent Riverside, filed a motion Monday arguing Brannon’s several subpoenas for documents were burdensome. The subpoena for Mayor Bill Flaute, for example, requested “all emails and correspondence” between him and city council and all city staff excluding the city manager.

“It is quite often that for certain matters that a person on council has to go directly to the staff person,” Brannon said.

Similar subpoenas were delivered to Zoning Inspector Brock Taylor, City Manager Mark Carpenter, Police Chief Frank Robinson and Clerk of Council Brenna Arnold.

In two emails attached as exhibits, Frick called Brannon’s requests “extremely broad” and asked him to clarify the request and identify a time frame during which the documents were created.

“I know what I subpoenaed,” Brannon replied by email Monday, without clarification. “I want what I asked for.”

Still others received subpoenas from Brannon, too, including ex-councilman Ed Schock, who late-Mayor Johnie Doan threatened to shoot. Brannon said “council didn’t do anything about” Doan’s subsequent criminal case and guilty plea to disorderly conduct.

“I find it amazing that these weak charges are even brought up,” Brannon said. “It’s a personal, political matter.”

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