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City of North Olmsted ('itv f m~ncil Met+tino Michael Ubaldi March 22, 2011 Page 45 i O. And did the Commission vote on that motion? z A. The Commission did. s O. And to your memory and knowledge, what was the 4 result of that vote? 5 A. The motion carried two to one. s MR. JAMISON: Nothing further of ~ this witness, Your Honor -- Mr. President. a MR. LIMPERT: Thank you. 9 ---- io CROSS-EXAMINATION OF BRYAN O'MALLEY ii BY MR. CARSON: 12 Q. Mr. O'Malley, you testified you went out of your is way to give advice to the Commission and said it i4 was more of a directive, correct? 15 A. There was, it was bothering me. It occurred to i6 me based upon prior -- i~ O. Well, let me ask my question this way -- 1s A. Let me give my answer. i9 Q. Well, I asked you a yes or no question. zo A. I had, we had, the Commission had on two prior 21 occasions conducted meetings about the subject of 22 the promotional examination and -- zs Q. Mr. O'Malley, I'm going to ask my question again. 24 You stated that you went out of your way to 2s give advice to the Commission on this matter, Page 46 i correct? 2 MR. LIMPERT: That would be yes or s no at this point. 4 A. Yes. s O. The Commission didn't ask for your advice about s whether they had the authority to schedule an ~ exam, did they? 8 A. The Commission receives advice from myself as an 9 assistant law director. io Q. Did the Commission ask for your advice -- ii A. Yes. 12 Q. -- on whether it had -- is A. The Commission actually asked for my advice 14 repeatedly. As a matter of fact, Mr. Ubaldi is asked for my advice repeatedly. In fact, he 16 questioned the basis for my advice. i~ Q. Well, I understand questioned the basis for your is advice, but -- i9 A. And he received answers as well, very -- 2o O. Mr. O'Malley -- 2i A. --specific answers -- 22 Q. Mr. O'Malley, you know how this works. 23 A. No, I don't. 24 O. Give me -- 2s A. No, I do not. Page 47 i Q. Mr. O'Malley, the way it works is I ask a 2 question and you provide an answer. 3 A. I'm not obliged to submit to your 4 cross-examination with simple yes or no answers. 5 Q. Actually, yes, you are. That's the whole point. s MR. GAREAU: Gentlemen, one ~ moment, please. s Mr. President, would you please s advise the parties as to how you wish for io this proceeding to continue? ii MR. LIMPERT: I think we're at a i2 point where there is no need to expound too 13 far beyond yes or no, and then if the i4 Mayor's attorney would like that to be is expounded upon, then they will have an i6 opportunity, Mr. O'Malley, to ask for a i~ longer explanation. is THE WITNESS: Thank you, i9 Mr. President. zo Q. Mr. O'Malley, is it your understanding that your zi advice to Commission is binding? 22 A. Yes and no. 23 Q. Well, in this case I will ask you to explain. 24 A. Thank you. 2s Q. Let me ask the question though. Page 48 1. Under what authority do you believe that your 2 advice is binding? s A. The charter provides that the law director and/or 4 his assistant to be counsel to the board and 5 Commission. And 1 say yes and no not to be cute, s but certainly there is a lot of legal advice that ~ is merely advisory, if you will. a However, in many instances, and in this s instance, the specific directive was as to the io jurisdiction and the authority of the Commission ii to proceed. And certainly the commissioner 12 disregarded the advice at his peril. 13 Q. Are you aware of any provision in the city i4 charter that provides an assistant law director 15 to give a binding directive to another city i6 official? i~ A. No. is O. Are you aware of any provision in the Ohio i9 Revised Code that allows a city law director or 20 the law department to give an advisor a binding 21 directive to another official? 22 A. NO. 23 Q. Are you aware of any case law out there that 24 would provide the authority for a city law i 2s director to give a binding directive to another Mehler & Hagestrom (12) Page 45 -Page 48 800.822.0650