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Law director addresses roles

December 21, 2012
Morning Journal News

SALEM - Councilman Dave Nestic played a dual role in a recent city council meeting, allowing him to both second a motion to have a rezoning ordinance prepared and vote on that motion, according to city Law Director Brooke Zellers.

Zellers issued his written opinion on the matter Thursday night, a day after Councilman Clyde Brown raised an issue with how the vote was handled.

He claimed the motion to rezone 6.9 acres from commercial to multiple family residential and 14.3 acres from multiple family to single family residential should have died for lack of a second because Nestic was acting as president pro tempore in Council President Mickey Cope Weaver's absence.

Council President doesn't have the power to make or second motions and can only vote in case of a tie. Brown said since Nestic was acting as president, it was wrong for him to second the motion initiated by Councilman Rick Drummond and to vote on it.

Zellers agreed the meeting was "an actual council meeting," and members of the Planning Commission were there as guests to discuss their previously made recommendations regarding a zoning issue. He said the joint meetings were put in place years ago "in order to streamline the process for enacting or amending zoning."

He said since Weaver was not present for the council meeting, Nestic, as president pro tempore, "would be responsible to discharge the duties and be clothed with the power of the President in her absence pursuant to Rule 30 of the Rules Governing the Council of the City of Salem."

"However, because Mr. Nestic is also a sitting member of Council, 1962 Ohio Attorney General Opinion 3203, which is still valid today, allows that he is entitled to vote when there is a roll call on a question and in other cases where his vote would change the result, but would not be allowed to vote to create a tie and then subsequently break that tie as normally would be allowed by the President of Council," Zellers wrote.

"Based upon the foregoing it is my opinion that Mr. Nestic, because of his dual role, would therefore be able to second a motion that was put onto the floor and vote on it unless his vote created a tie," the written opinion said.

Zellers emailed copies of the opinion to Mayor John Berlin, Brown, Nestic and other members of council, along with the Salem News.

Earlier in the day, Nestic said the meeting was treated like a joint meeting of council with the planning commission.

"I don't know that I have to relinquish any vote," he said.

He said Brown raised some issues and questions that Zellers would have to decide. Berlin commented that in the story about the issue in Thursday's paper, Brown said he had not heard from Zellers or Berlin after he raised the issue. According to Berlin, Brown never asked him to respond, saying he would have if Brown had asked him to. He attended the meeting as a member of the Planning Commission.

The Planning Commission had already taken action to recommend the rezoning of two sections of a 67.7-acre parcel the NRP Group of Cleveland has an option to purchase on East Pershing Street, Butcher Road and Cunningham Road. The company is planning a three-phase housing development of apartments and single-family homes.

Phase I consists of a 120-unit walk-up apartment complex located just south of Pershing Street and southwest of Butcher Road.

Brown and Councilman K. Bret Apple both voted against having an ordinance prepared for council to consider. Nestic, Drummond and Councilwoman Cyndi Baronzzi Dickey all voted in favor of the motion.



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