City Council President Kevin Kelley is on Trial, Whether He Likes it or Not

click to enlarge City Council President Kevin Kelley - Sam Allard / Scene
Sam Allard / Scene
City Council President Kevin Kelley
Monday evening's city council meeting ended rather like the city of Pompeii: leveled by an eruption.

Chants of "Shame on You" and "Vote Him Out" thundered through council chambers at City Hall as members of the Q deal referendum coalition and their allies raged against Council President Kevin Kelley.

Many of those in attendance had personally spent hours collecting signatures for a petition that had been summarily rejected on questionable grounds earlier in the day. Opponents had been rallied to the evening meeting on social media all afternoon.

Throughout the proceedings, the rage was something one could witness metastasizing in real time, fueled by boredom and then by comments from councilmen sympathetic to the opponents' cause. The final outburst featured some of the loudest and most vigorous chanting this reporter has witnessed in council chambers.

Not a single local news camera was there to record this striking display.  

Moments before the eruption, Councilman and Mayoral candidate Zack Reed had invited Cleveland's law director, Barbara Langhenry, to the microphone.

This was during the final "miscellaneous" portion of the meeting. It followed a parade of congratulatory resolutions and the routine rapid-fire "emergency" legislation typical of the Monday meetings.

Reed asked Langhenry whether or not Kevin Kelley had invoked attorney-client privilege in seeking legal advice about the Q deal referendum. While this sounded bizarre, Langhenry said that yes, yes he had.

That morning, City Council rejected more than 20,000 signatures that had been collected during the preceding 28 days. Members of multiple citizen groups who oppose the Q deal attempted to submit the signatures at City Hall, but a letter signed by Deputy Clerk Allan Dreyer was waiting for them: The petition was being rejected on the grounds that the referendum "unconstitutionally impair[ed] an already executed and binding contract."

(Note: City Council told Scene that Clerk Patricia Britt is away at a Municipal Clerk Conference, and that "in her absence Allan Dryer is the responsible person.")

The "unconstitutional impairment" was a justification that some council members found, at best, flimsy. Among other pressing questions that occurred to them, the most obvious was: What contract had already been executed? After all, the county, which will sell the renovation bonds, is waiting for the referendum issue to be resolved before they move forward. The "contract" couldn't just be the deal itself, could it? At a Monday committee meeting, Kelley said that there were "other city contracts" at play. It's unclear what those are.

City spokesman Dan Williams had no comment on the contract mentioned in Dreyer's memo, referring our questions back to City Council. "That was a decision made for them by the council president," he said. (Williams later called Scene and said he'd made this statement in error. He said his intent was merely to direct our inquiry to City Council.)

Council spokeswoman Joan Mazzolini said that the "contract" was, in fact, merely the Supplemental Agreement contained within the Q deal legislation (pgs. 10-16 here). The Supplemental Agreement extends the original cooperative agreement from 1992 which "proposed that the County provide a loan to Gateway from the proceeds of the Arena Bonds and that the city direct certain non-tax payments to the County as additional security for those Bonds."

In other words, the Supplemental Agreement is "the deal."

If this is the case, though, the rejection of the referendum becomes a laughable tautology. To paraphrase Allan Dreyer's memo: A referendum seeking repeal of the Q deal would unconstitutionally impair the Q deal.

Further, if council now says that the contract in question is the Supplemental Agreement contained within 305-17, it contradicts Kelley's comments at Monday's committee meeting that there were "other city contracts" to which Dreyer's memo referred.  (And if that's the case, Councilmen Jeff Johnson and Zack Reed had every right to be baffled by Kelley's statements to that effect.)

In a conversation with Scene Tuesday, Kevin Kelley said he could not say for certain what the contract was, but it was his understanding that there was a separate document, (i.e. something other than that which is contained within the legislation). He said he could confirm tomorrow.

Per the council spokesperson, however: While the Supplemental agreement is the substance of the Q deal, contained within 305-17, "it is also a contract that has been signed by [the city and the county]." (Italics added). 

Emergent in Scene's correspondence Tuesday was the appearance that council was now trying to protect Kelley, or else to modify Monday's narrative. In response to our questions about the contract, a spokesperson said, "the city law department and our attorney Rachel Scalish have advised the Clerk of Council. As a courtesy, the council president has also been kept in the loop, but the law department is representing the Clerk in this issue."

This beggars belief. Kelley himself admitted all through yesterday's committee meeting that he had been consulting with and seeking advice from the city law department and council attorneys. (Why, indeed, would Kelley seek "attorney-client privilege" from the law department if he were merely being kept in the loop as a courtesy?) It's also absurd to think that deputy clerk Allan Dreyer — while Clerk Patricia Britt is away on a conference — would be coordinating the decision-making on an issue of this magnitude, one that Kelley has largely overseen. It was Kelley, recall, who was said to have personally orchestrated the last-minute provisions that were meant to sweeten the deal before the final council vote.

Kelley said Tuesday that it would be dishonest to suggest that he was not involved — he did indeed seek advice from city attorneys — and that it was not his intention to shirk responsibility. But he clarified that the "client" in question was not himself, but Clerk Pat Britt. The Clerk (that is, Britt, not Dreyer) sought advice, Kelley said, in the likely event that the signatures would be submitted. He restated his belief that attorney-client privilege was valuable "for a whole lot of reasons" and that City Council did not have the benefit of executive sessions, as some other public agencies do, for sensitive matters.

But why, then, Scene asked, wouldn't Kelley have merely deferred to the Clerk when his colleagues were demanding to know how he (that is, Kelley) made the decision to reject the signatures?

"I could have," said Kelley, "but I was in it. I don't know what my exact legal role would be. It certainly would not have been a correct statement for me to have punted this whole thing to the Clerk. Ultimately, it's the Clerk who has a legal role and is the person who keeps and receives records and is the client. I'm not trying to minimize the fact that I did seek advice on this, but the entity is the Clerk."

Dan Williams' call, though, two hours after his initial comment (above) came after City Council had called him. Williams said that he misspoke when he said that Kelley had made the decision on behalf of council and it was now his understanding that the Clerk made the decision.

Back to the "contract."

Scene asked Council how, if the contract in Dreyer's memo was just the deal itself, it could be construed as "executed" when the county has stated publicly (and on advice from county financial adviser Tim Offtermatt) that it intends to wait for a resolution on the referendum issue before it sells the arena bonds. On that question, we were told we'd have to ask county council.

County Councilman Dale Miller told Scene that though he wasn't a lawyer, he recognized that there was some uncertainty in the city charter about referendums on emergency measures.

"I also think," he said, "that it is not impossible that a judge could rule that since no actual action has occurred yet to implement the Q Project, that no irreparable harm would be done by allowing the referendum and that the right of the people to referendum would trump other considerations."

Miller said "all indications" are that the county administration and his council colleagues agree with him on that issue.

"As one who voted for the Q Project," said Miller, who is a former Cleveland City Councilman, "I would have no problem with the referendum taking place. If the Q Project passed, it would validate my decision. If the Q Project failed, I would say that I voted what I honestly felt was best, but willingly accept the decision of the people."

At Monday afternoon's meeting, multiple city councilmen said they'd like to see the written legal opinion that led to Kelley's decision to reject the petition, something which, at the time, Kelley had not been provided. He claimed that he'd consulted with a number of city attorneys on the matter (Kelley is a lawyer himself), but that it was all verbal. Jeff Johnson suggested that Kelley should be "chastised" for his actions. Mike Polensek alluded to "unpleasant ramifications" if Kelley didn't exercise abundant caution moving forward.

Other than Matt Zone, who said he'd also like to see a written legal opinion, no councilperson who voted for the Q deal took exception to Kelley's maneuvering, at least not openly. This created the misleading impression that opposition to the Council President's actions was a direct extension of opposition to the deal itself. This should not be the case. As Dale Miller described, and as Councilman Mike Polensek reiterated at the evening meeting, citizens have a right to initiate a legislative petition if they disagree with the actions of council. Polensek quoted Chapter 7, Section 51, of the City Charter pertaining to filing petitions:

"All papers comprising a petition shall be assembled and filed with the Clerk of the Council as one instrument by no later than 4:00 p.m. on a regular business day of the office of the Clerk," reads the charter. "Within ten (10) days from the filing of a petition the Clerk shall ascertain whether it is signed by the required number of qualified electors. Upon the completion of the Clerk’s examination the Clerk shall endorse upon the petition a certificate of the result thereof." 
"My brothers and sisters, members of the public" said Polensek, "that was effective November 9, 1931."

(Note: While much of the Charter's seventh chapter was indeed effective at the date Polensek cited, Section 51 — the material quoted above — was effective Nov. 8, 2004.)

After Jeff Johnson and Polensek voiced their concerns about Kelley's rejection of the petition, Reed invited Langhenry to the mic. Langhenry rose from her seat next to Mayor Frank Jackson.

Reed stated what he'd mentioned to Scene prior to the meeting: that after the afternoon committee meeting, he had ventured to the law department to clarify the petition rejection. In lieu of, or in addition to, a written opinion, Reed had said that he'd like to be briefed by the city lawyers who provided advice to Kelley. (This was initially a suggestion of councilman Terrell Pruitt.) Kelley had seemed to indicate that this wouldn't be a problem. But when Reed asked for information of the law department, a city lawyer told Reed that Kelley had invoked attorney-client privilege and that Kelley would have to waive that privilege if other city councilpeople wanted to be briefed. It would be difficult to overstate Reed's bamboozlement at this turn of events. Though he already knew the answer, Reed asked Langhenry if this was indeed the case. Had Kelley really invoked privilege?

"That's right," Langhenry said. [Statement obscured by crowd noise, though she seemed to legally endorse attorney-client privilege in this instance.]

Reed then asked Kelley directly if he would waive this privilege "and tell these fine people in the audience [statement obscured by crowd noise] ...  they want to know from you, Mr. President: What is the reason you rejected their petitions?"

Kelley was getting annoyed. The crowd, boiling over with accumulated boredom and anger, began to chant "We want to know!" Kelley then advised Reed that he was not on trial. "This is miscellaneous," he said.

"SHAME!!! SHAME!!! SHAME!!!!" The chants from the crowd rose in volume, and the meeting was thus adjourned. The referendum coalition and their allies screamed at Kelley as the council members and the Mayor's administration gathered their things and processed out.

Kelley said he was not on trial — and he told Scene Tuesday that he'd be surprised if the opposition leadership hadn't anticipated a legal challenge from the city. "This isn't on me," he said — but the impression one can't help receiving was that he was, and that he is. He is perceived, despite assertions to the contrary, as the lone author of this latest obstruction of citizen action.

The rejection of the Q deal signatures has been called by some a "giant middle finger" in the face of the people of Cleveland and in the face of Democracy itself. And whether it was Kelley, or the Clerk, or some other unseen force at City Hall, at least 20,603 citizens hopped up on activism are mad as hell.
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Sam Allard

Sam Allard is the Senior Writer at Scene, in which capacity he covers politics and power and writes about movies when time permits. He's a graduate of the Medill School of Journalism at Northwestern University and the NEOMFA at Cleveland State. Prior to joining Scene, he was encamped in Sarajevo, Bosnia, on an...
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