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<br />City of North Olmsted
<br />City (:nuncil Meeting
<br />Michael Ubaldi
<br />March 22, 2011
<br />Page 69
<br />1 their rules, completely disregard state law
<br />2 and write unique rules. They've chosen to
<br />3 follow state law in many respects.
<br />4 MR. MAHONEY: Okay. Thank you.
<br />s No further questions, Mr. President. Thank
<br />s you.
<br />~ MR. LIMPERT: Councilman Schumann,
<br />a do you have questions?
<br />s MR. SCHUMANN: Just a short one.
<br />to Mr. O'Malley, you stated that in
<br />11 your role as counsel to boards and
<br />12 commissions that you -- it was not unusual
<br />13 for the chair or the commission to not
<br />14 agree with your opinion and take other
<br />is action.
<br />is Would you say that when you would
<br />17 give procedural advice or a directive you
<br />18 would, they would -- would you say that it
<br />is was not unusual for them to not take your
<br />zo advice in that situation?
<br />zl THE WITNESS: When it comes to
<br />2z procedure it's generally --the boards and
<br />2s commissions, the planning commission, the
<br />z4 BZA, will generally follow the advice
<br />25 that's given. And when I say that advice
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<br />1 is take it or leave it, I would, talking
<br />2 generally, I might suggest that the body
<br />s could consider certain options, but it was
<br />a entirely within their power to select
<br />s between them.
<br />s And it's more rare where a body is
<br />~ more or less warned that they really ought
<br />a not travel down that road, that they don't
<br />s have jurisdiction or authority to proceed,
<br />to that kind of advice is generally not
<br />11 disregarded.
<br />12 MR. LIMPERT: Are there any other
<br />13 questions by members of council? Seeing
<br />14 none --
<br />ls MR. CARSON: Mr. President, I just
<br />is have a couple very quick questions.
<br />17 - - - -
<br />18 CONTINUED RECROSS-EXAMINATION OF BRYAN O'MALLEY
<br />19 BY MR. CARSON:
<br />zo O. Mr. O'Malley, you testified that the, whenever a
<br />21 vacancy occurs, essentially means that there has
<br />22 to be a triggering event, correct?
<br />23 A. Sure, yes.
<br />24 Q. You knew that Chief Wozniak was retiring in
<br />z5 early, in April or early May as of the February
<br />Page 71
<br />1 28th meeting, correct?
<br />z A. It had been reported in the newspaper. It had
<br />3 been generally forecast or predicted.
<br />4 Q. He said he was retiring, correct?
<br />s A. I didn't talk to him directly, but that was the
<br />s news.
<br />~ Q. Going to Rule 8, (b)(ii), I'm just going to read
<br />s it over here. It says, "If there is no valid
<br />s eligible list, the Commission shall conduct a
<br />to test for a new eligible list."
<br />11 Did I read that correctly?
<br />12 A. You did.
<br />13 O. Was there a valid eligible list on February 28th?
<br />14 A. Well, there's never a valid eligible list for a
<br />15 police chief. You, that's a one shot deal.
<br />is Q. Really? I know other cities have valid eligible
<br />17 lists for police chief or fire chief.
<br />is It's your position that there's never been a
<br />is valid eligible list?
<br />20 A. Well, 1 might be incorrect.
<br />21 Q. Okay. Well, setting that aside, it's your
<br />22 testimony that there was no valid eligible list
<br />23 for police chief?
<br />z4 A. I don't believe there ever was.
<br />25 Q. Okay. So does that mean, and the rule says, "If
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<br />1 there is no valid eligible list, the Commission
<br />2 shall conduct a test for a new eligible list,"
<br />3 correct?
<br />4 A. The rule says when that "vacancy occurs, the
<br />5 appointing authority shall notify the Civil
<br />s Service Commission." So absent a vacancy and
<br />~ absent notice from the appointing authority, then
<br />a the Commission doesn't have authority to proceed
<br />s sua sponte, on its own accord, in response to a
<br />to newspaper article or whenever it deems a
<br />11 promotional exam to be necessary or appropriate.
<br />12 O. Okay. And your legal authority for that
<br />13 proposition is where in the charter?
<br />14 A. It's in, it's in the -- well, the charter --
<br />15 Q. Or the Ohio Revised Code?
<br />16 A. The charter refers to the Civil Service
<br />17 Commission rules which refer to the state code.
<br />is Q. Would you interpret the language in (b)(ii),
<br />is "...the Commission shall conduct a test for a new
<br />zo eligible list," to be mandatory?
<br />zl A. Upon the occurrence of a vacancy and upon the
<br />zz notification from the safety director.
<br />z3 Q. But the statute doesn't say upon notification
<br />z4 from the safety director, does it?
<br />25 A. The rules say that.
<br />Mehler & Hagestrom
<br />800.822.0650
<br />(18) Page 69 -Page 72
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