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.
This article appears in May 17-23, 2017.
Thank you, Sam Allard, for the excellent report. I’ve been looking all day for coverage of last night’s Cleveland City Council meeting, and this was the only place to find it. Unbelievable!
ok roll the phones with the event recorded…
…somebody recorded it on their phone
I’m not a lawyer, but if the city’s attorneys were representing Pat Britt as clerk, then not only can Kevin Kelley not claim privilege, his being “in the loop” *breaks* Britt’s claim to privilege too.
I spent a little time reading the case law on attorney-client privilege in institutional settings like municipal councils, and it’s really murky. But it’s pretty weird for an _individual_ member of council to claim privilege without including their council colleagues in the bubble of privilege.
And one really basic part of privilege is that if you’re the client and you blab otherwise privileged material to outsiders, the privilege is gone. If it’s out, it’s out.
Again: I’m not a lawyer and my legal education comes from reading everything in the library at CSU. But I am undefeated in appeals court, so that’s something.
Good on you Sam. Don’t back down.
Jeff Hess
Have Coffee Will Write
Same bums that ran down to the Republicans in Columbus in order to betray the deal they made on the Fight For $15.
Vote out all 17 fake “Progressives” on city council and the mayor this September and November.
That Kevin Kelley is a pathetic liar should not be a surprise — his thirst for a future mayoral bid oozes from his mouth…..as it snaps up and down due to the taut puppet strings manipulated by Frank Jackson.
Sam you mention that the crowd was passionate in denouncing the actions of Kelley, but then you described the volume and violence of the response. What violence. Were there fisticuffs exchanged, did the police have to make any arrests, were chairs thrown (a fine old form of political discourse in Cleveland!). I question your use of this word because so often dissent is tarred by the description as being violent, when in the overwhelming majority of cases the violence comes from authorities, not dissenters. Randy Cunningham
@Randy Cunningham — Thanks for comment. I see your issue, and maybe I should have been more careful, but I was using “violent” to connote intensity, not physical force. On a second read, “vehement” might’ve been a better choice, but that’s what I was trying to convey.
Sam and Randy…I agree. As someone who was there we were not violent whatsoever. To call passionate people who voice their descent no matter the volume does not make one violent.
We were yelling because the city council isn’t letting democracy run its course and from my vantage point we all loose when any one person evokes privilege as a way to get their way.
Opposers to the Q deal are not against the Q but against money only being funneled into the Q while neighborhoods in dire need of assistance continue to suffer within miles of the Q.
There are better words in our language to describe when deep concern, frustration and passion intersect and it is not violent.
This is a great piece of journalism. It’s a journalism profoundly lacking in the PD.
We desperately need someone/journalists who have done the homework on the issues and don’t just ‘parrot’ the people/politicians ‘selling’ us their agenda. (thanks for the citations/links.)
And the CCPC, GCC, and so many people who have opposed these corporate hand-outs … they all have done our region a great service with their incredibly well-organized opposition. They participated in the whole legislative comment process. Though they were ignored, they worked within the process. And so they laid the foundation to show how the political leaders had to be heavy-handed with their power to stop their opposition. And now city council leaders demonstrate how little they respect and represent people, the democratic process. Nothing new. But so clear now. And this story-article documents it!
And i’m glad that the whole ‘violent’ mention has been clarified.
Maybe, we can start documenting ‘the institutional violence’ of our leaders who ‘mock’ democracy with their legal maneuvering, as this story-article ably describes!
MFiala
Ward ’13’: The noise from patrons right up against the houses by the Memphis McDonald’s continues in a gross lack of consideration that is unacceptable. Why is this drive thru allowed to be open 24 hours a day 7 days a week in a residential area?
The noise from the honking horns when people lock their cars instead of locking them manually is another huge noise disturbance you need to address now! Send a simple letter to residents in your ward reminding them about common courtesy and this honking from key locks. Your area has the greatest noise level of any suburb in the area with this ‘honking’.
The CIGARETTE SMOKING in front of the stores in the Memphis-Fulton plaza is also unacceptable, and the harassment from loud bar ‘patrons’ at both of the pubs located in the Memphis fulton plaza and across the street next to that Chinese restaurant. It is very simple to have your staff and patrons smoke BEHIND THE BUILDING. Non-smokers do not have to breathe in your smoke everytime they pass by, including the ‘chairs’ that have been perpetually, year after year, outside on the sidewalk of the bar located in the Memphis-Fulton Plaza, which has loud patrons shouting and laughing raucously, including at passersby.
Discount Drug Mart on Fulton Rd. has continued to sell rotting vegetable produce for many years, which will be reported to the Health Dept. This has been noticed by visitors to your area and the store was told about it, along with their dangerously cluttered aisles full of boxes, etc, and the store has not remedied the situation.
The PAVEMENTS on West 56th thru West 58th st continue to be in a deplorable state for the last 10-15 years. This is dangerous for pedestrians, particularly in the winter when your people don’t shovel their sidewalks. Fix the sidewalks asap.
The VERY LOUD MOTORCYCLE TRAFFIC ON THE ENTIRE STRETCH OF MEMPHIS AVE. has continued for at least the last decade, 10 years, and nothing has been done. This is a continual Noise Violation by allowing loud motorcycles on this stretch, day and night.
None of the above behavior is observed in quieter suburbs.