May 29, 2007




Mayor Beyer called the May 29, 2007 City of Union council meeting to order on Tuesday evening, at 7:30 p.m. 


            Attendance was taken and the following council members were present:  Mr. Bruns, Mrs. Terry, Mrs. Kyle, Mayor Beyer, Mr. O’Callaghan, Mrs. Goudy and Mrs. Perkins.  Other city staff members present were John P. Applegate, City Manager, Denise Winemiller, Clerk of Council, and Joe Moore, Law Director. 


            Mayor Beyer called for a moment of silence.


            1.         Mayor Beyer asked if there were any additions or corrections to the council minutes from the May 14, 2007 meeting.  There were no corrections mentioned so Mr. Bruns moved that the minutes be accepted.  Mr. O’Callaghan seconded the motion.  Mrs. Goudy abstained and the other council members voted for the motion.  The council minutes from the May 14, 2007 were accepted as prepared.


            2.         Citizens’ and Visitors’ Comments. 


            Mr. Stamper from West Martindale Road complained to the council concerning the boom boxes from the traffic on the road in front of his house.  He said he wanted some action taken since the city did have an ordinance concerning that.

            Mayor Beyer said they had discussed this at the last meeting and he asked Mr. Applegate if he could provide them with an update.  Mr. Applegate said he had a file on his desk with copies of ordinances and the regulations from several other cities.  He said he would be comparing those noise ordinances against Union’s to see if there was anything else that the city could utilize to address Mr. Stamper’s request.


            Mr. Beyer recognized Mrs. Collins from West Martindale Road who addressed the council with a Memorial Day Tribute.  She recognized the people who have served and paid the price for freedom from the Revolutionary War forward.  She discussed Union’s growth over the years and gave thanks to the men and women in the service.


            3.         Open Agenda


            Mayor Beyer said he had the pleasure of speaking at the VFW’s Memorial Day celebration.  Mayor Beyer thanked Mr. Bruns for providing his transportation.


            Mayor Beyer said he had a card to the police department from Vivian Barefoot and he read the card into the record.  “Thank you for watching over my home and a special thank you for cleaning up the neighborhood.  I feel a lot safer now, and I’m sure my neighbors do too.  Hope you enjoy the Esther Price candy.  Be careful out there.” 


            Mrs. Perkins asked if Mr. Applegate had been able to go out and assess the drainage situation on Burgundy Drive that was brought up at the last council meeting.  Mr. Applegate said that he and Glen Green, the building and zoning inspector had gone out to look at the situation. Mr. Applegate said it is basically a grading problem from what was done originally and from what people have done since then.  The sinkhole that was mentioned is actually a working catch basin that is located one yard down.  There is a high spot in the yard about fifty feet away from the catch basin.   Mr. Applegate said if the residents would lower the high spot by trimming the sod back and put that dirt in the low, bare spots, that would probably take care of the problem.  He talked to the owner of the property and the homeowner agreed and said he appreciated the city checking it out.  Mayor Beyer asked if the property owners would do what Mr. Applegate suggested and he said they would.  It was not the city’s responsibility.  The drainage was the builder’s responsibility but the homeowners in the area unintentionally created the problem.


            Mr. O’Callaghan thanked Mrs. Collins for her comments about Memorial Day and thanked Mayor Beyer for attending the Memorial Day ceremony in Union. 

            He said he noticed a little more police presence in Union over the three day weekend.  He said he appreciated that. 


            Mr. Stamper said the new firehouse looked fantastic and he said they were doing a great job. 

            Mayor Beyer invited Mr. Stamper to come to the open house at the firehouse when it is completed in July. 


            Mr. Applegate said there would be a press notice that would be released the next day concerning a lawsuit that Union won that had been filed against the city and the city manager almost ten years ago.  Mr. Applegate read the press release into the record. 


U.S. Supreme Court Rejects Disgruntled Citizens’ Final Request for Appeal – City of Union and its Manager Win Freedom of Speech Lawsuit


May 18, 2007, DAYTON, OHIO – It has taken nearly 10 years and a total defense cost of 79,000 dollars for Union and its City Manger, John Applegate, to know they did not violate citizens’ constitutional rights by talking to Union voters about very important health and safety issues.  This Thursday, the City and Applegate received word that the highest Court in the land rejected Plaintiffs, Ronald Kidwell, Julie Johnson and Charles Arnett’s, request to hear their case.  These citizens have now lost their last available appeal – the case is finally over.  


Plaintiffs’ unsuccessful and protracted First Amendment legal battle made the law clear.  City’s like Union are permitted to provide its citizens with information and the city’s position on ballot initiatives and tax levies and referenda. Union committed no wrong by talking to its citizens about the ballot issues related to the creation of Union’s Fire & Rescue Department dating back to 1997 and to land annexation and the provision of water and sewer services to nonresidents dating to 2000-2001.


While it is unfortunate, during these years of financial hardship which all Ohio communities have faced, that Union was forced to spend such significant resources to maintain its rights to simply do its job – inform and educate its citizens – the law created in this case will go a very long way in hopefully discouraging disgruntled residents from filing similar lawsuits.  Federal District Court Judge Thomas M. Rose dismissed all claims, finding – based upon the evidence and the law – that the Plaintiffs’ case did not merit proceeding to a trial.  The U.S. Court of Appeals agreed with Judge Rose.  Upon learning that the United States Supreme Court rejected Plaintiffs’ request for yet another appeal, Applegate said, “We want to hear from our residents.  And, it is important for our residents to hear from their elected council members.  Disagreements are ended with votes cast at the ballot boxThis is democracy – and our courts agree.”  While Union’s insurance covered 55% of the defense costs in this suit, Union certainly could have re-allocated the 35,500 dollars it spent in defense of this lawsuit to better serve its community.  All citizens and local governments in this country can rest assured both still enjoy the right to free speech. 


          Mr. Applegate said he was very relieved when he got the call that the lawsuit was over.   He said that during 1997 and 1998, the disagreements and lawsuits that followed were about the city creating their own fire and rescue department.  Mr. Applegate said he and council and city staff all agreed it needed to be done. 

Mr. Applegate noted that the end of this lawsuit with all of the appeals proved the point that the city made the right decision and that the decision was made in the best interest of the city.  Mr. Applegate said Union council and administration had honored the promise that was made in 1997 in having a fire and EMS crew responding in less than five minutes.  The Union Fire Department is now responding closer to four minutes.                              

What the opposition said would cost millions of dollars a year, has not.  It has cost several hundred thousand a year to operate the fire department.  Mr. Applegate said that the city has one of the finest departments in the county.  He stated that the council made the right decision concerning the fire department and their decision to fight the lawsuit was right and proper.  The courts said it was legal for the city to express what they feel is the right path for the citizens and that the city and council can voice their objections and argue their position, which is what they were elected to do.  Mr. Applegate said he was glad to be able to say this to the council.


            Mayor Beyer asked if they would send the prepared statement to the Englewood Independent and other media.  Mr. Applegate said the city would be doing that. 


            Mr. Moore said he would like to comment on this decision.  He said he had been the law director at Union for years and that the Union city council does not do things that are not in the best interest of the city.  He said currently he has a referendum and initiative petition and these cases cost the city a lot of money at times and sometimes the cases do not have much merit.  He said he was not necessarily referring to this case but he would like the record to reflect that citizens in Union frequently are approached concerning referendum and initiative petitions.  He would hope that this kind of legal decision would show that the city does act properly.  Mr. Moore hoped this would make a citizen stop and think before they signed a petition just for the sake of signing it. 


Mr. Moore added that if people believe that something should be changed, he is not saying people should not sign anything but he asked that they think about the effect it would have on the city.  He said money was tight in municipal government and these lawsuits cost a lot of money. Mr. Moore said he would hope that people, now learning that after ten years and thousands of dollars later, that the Union government did nothing wrong, the next time something was presented, that the citizens would ask themselves questions such as; why should we sign this, what is wrong with the law the way it is, and why should we take this law and change it, before signing the document and going forward.  Mr. Moore said that in America, we have the ability to do these things, but the process assumes that people will stop and think about why they are signing documents. 


            Mr. Moore said he wanted to comment on what he refers to as the point of sale ordinance.  This ordinance says that before a person can sell a house, he has to make certain repairs.  Mr. Moore said they have heard comments that the city should not have a law like that but when Union passed their ordinance, the Supreme Court of Ohio had already ruled in favor of that kind of ordinance, saying these kind of ordinances are good for cities and helps the housing stock stay in good shape because it forces people to make the repairs to their house when the money is available to make the repairs.  Some people may suggest that an initiative petition be circulated against that city ordinance but this type of ordinance historically has a good success rate and makes the communities look better.  Mr. Moore said this was one of those times when he hoped that people would stop and think before they participate in trying to change a law that is actually a benefit to the city. 


            Mayor Beyer suggested that Mr. Applegate send the prepared statement on winning the lawsuit to channels 2, 7, 11, and 45.  He said even if they would not read the statement on the news, someone might call Mr. Applegate for more information.


            David Jackson from the audience said that his property had been annexed and he was being taxed from both Butler Township and the City of Union.  He said he was not getting any services from Butler Township. 

            Mr. Applegate said he agreed with Mr. Jackson and they have turned this over to an attorney that handles the city’s annexations.  The attorney is doing some research and working to put together a lawsuit.  Mr. Applegate said they would recommend that the lawsuit be filed.  He added that he had met with the county auditor and talked to them about it but it looked like they would be going forward with a lawsuit.   


            4.         Mr. O’Callaghan moved that the May 29, 2007 City of Union council meeting be adjourned.  Mrs. Goudy seconded the motion.  All concurred and the council meeting was adjourned.



Respectfully submitted,



Denise A. Winemiller, Clerk of Council



Michael O’Callaghan, Vice Mayor