AG's Office: OV citizens' complaints are 'without merit'
Last month, a group of Ocean View citizens wrote a letter of complaint to the Delaware Attorney General’s Office. The complaint, which was signed by 65 citizens, petitioned to have the AG’s Office give its legal opinion in an effort to reverse town council actions that the “concerned citizens” said they felt were “illegal,” “contrary” to the town charter, “wasteful” and “constitute an abuse of power.”
The complaint addressed four concerns, alleging: that Ocean View Police Chief Ken McLaughlin’s contract extension is in violation of the town’s charter; a failure of “appropriate” governmental checks and balances; and various violations regarding the Freedom of Information Act (FOIA); and contesting the council’s recent decision to repeal the censure of resident and former councilman Bill Wichmann.
The complaint asserted that the council’s decision to extend McLaughlin’s contract – which added that the chief would be “under the direction and control of the mayor,” would prepare and submit an annual budget, and would control the hiring and termination of police department employees – runs contrary to the distribution of powers outlined in the town charter.
As is procedure, the AG’s Office sent a copy of the complaint to the town’s solicitor, Dennis Schrader, and requested a response on behalf of the Town.
Schrader argued that the Town had not violated FOIA, and said that “there is an animosity demonstrated by the Concerned Citizens in their complaint that appears to have its genesis in the termination of the former Town Manager [Conway Gregory] and focuses on the current Town Council, Chief of Police and Mr. Wichmann.”
The AG’s Office this week found in the Town’s favor. In a letter dated Feb. 16, Deputy Attorney General Kent Walker ruled that the complaints by the group of citizens were “without merit,” and that his office, “does not and will not expend its resources chasing speculations.”
Resident George Pickrell, who was one of the petitioners, said the citizens were very disappointed by the AG’s decision and that he does not agree with Schrader’s suggestion of animosity.
“That couldn’t be further from the truth. We were looking for help from the Attorney General’s Office because we could see that going to the town officials was like beating a dead horse — they weren’t going to respond to us,” he said. “We are not an investigative body. Those powers are entrusted to the Attorney General’s Office. We don’t hold any animosity toward anybody; we just want our government to operate the way the architects of the town charter called for.”
Kathy Vengazo, who was also one of the petitioners, said that the group was simply seeking an outside opinion for what they believe are serious issues.
“Mr. Schrader concluded that the letter was sent by a bunch of disgruntled citizens,” she said. “We are just concerned about the issues that are raised there and if our town charter is being complied with. We raised these points at the meetings and were not listened to, and so we went somewhere else to see if we’d be listened to. We weren’t out to get anybody. We just want to be sure that people follow the charter.”
In their complaint, the group asserted that some job duties were clearly defined in the town’s charter, which calls for the town manager to be the “chief administrative officer of the town.” They also cited the town’s recent University of Delaware Institute of Public Administration Study, which concluded that the town’s charter was written for a “council-manager” form of government.
According to the study, “based on a review of the Town of Ocean View’s Charter, it is clear that the council-manager form of government was intended by the Town’s founders and its citizens.”
The group had requested the AG’s Office impose a stay on further town organizational measures and the hiring of a new town manager until the matter was resolved. They also stated that they believed that the town council has been trying to make McLaughlin the chief executive officer of the police department, “with little oversight.”
Schrader argued that the council does, in fact, have the authority to have McLaughlin report to the mayor and not the town manager, as “it is the town council, not the town manager, that has the general and specific power to provide for a police force and the appointment and promotion of its chief and other officers, as it deems necessary and best.”
Schrader also cited State Solicitor Lawrence Lewis’s opinion, from October 2008, which stated that, with specific contracts of employment – such as McLaughlin’s – “the contract shall take precedence,” as his terms of employment are not covered by the merit system outlined in the town code.
The complaint had gone on to state that they believed there had been a failure of governmental checks and balances, as McLaughlin had only had a performance evaluation once — prior to his contract extension.
However, Point Editor Darin McCann this week was able to view multiple performance evaluations for McLaughlin, signed by both former Mayor Gary Meredith and current Mayor Gordon Wood.
McLaughlin said he hopes that, with the AG’s decision, perhaps the question of whether his contract is valid will stop. He also added that anytime his department spends more than $250 it has to go through a purchase-order process that is approved by the town’s finance director and the town manager.
“There’s so much misinformation,” McLaughlin said. “There were strong insinuations that I’m basically unsupervised over here. The way the money works, the way the budget works, the town council establishes a budget every year. The town council does that. Ken McLaughlin doesn’t. The police department has remained under their budgetary guidelines.”
The complaint had also claimed that there were repeated FOIA violations by council members, as a quorum of council members has been known to gather at “Bill’s Bar,” at Wichmann’s home.
“We suspect … that illegal discussions are occurring that should be held as public hearings,” the complaining citizens said.
The complaint also asserts that Wichmann has a “coterie of individuals … whom he regularly entertains and thereby manipulates to introduce and/or approve legislation, and/or reject proposed legislation, that further his agenda.”
Schrader responded to the allegations, saying that the statements “reflect the animosity of the complainants” and do not provide any factual basis or proffer evidence or prove that a quorum occurred for the purpose of discussing public business. He went on to assert that the social functions occurred after votes or actions of council had been made.
“What else is one to think?” asked Pickrell of the social gatherings at Wichmann’s home.
Walker, however, agreed with Schrader, stating, “While it appears that the mayor and council members may meet socially, perhaps even frequently so, you have stated no facts from which anyone could conclude that either a quorum or a constructive quorum of council members discussed – much less reached a consensus or acted upon – Town business in private.”
“It’s a gazebo in the guy’s back yard,” added McLaughlin, who was also mentioned in the complaint related to gatherings at Wichmann’s.
“We have evidence that the Chief of Police has been at Mr. Wichmann’s house/bar and suspect that he also actively participates in these prohibited discussions without intervening as one would expect a law-enforcement officer to do,” stated the complaint.
McLaughlin said the complaint implied that when he visits Wichmann’s home he consumes alcohol — he stated that he does not consume alcohol, “period.” McLaughlin also said he has gone to Wichmann’s house to respond to a complaint filed on behalf of Wichmann’s wife, Betty, that people were in the vicinity of her home, taking pictures.
“It never ends,” said Wichmann. “I had to file a complaint because my wife was getting nerved up because we had cars coming by in the evening, cars that would drive by the house, slow down by the house, stop at the house… She was getting herself kind of worked up about it.”
The final grievance aired the group was about the repeal of Wichmann’s censure last December. The petitioners stated they did not believe the council had the authority to repeal the censure “when they were not involved in the original imposition.”
In his letter of response, Schrader argued that the town’s Rules of Order provides that rules of parliamentary procedure not covered by the town’s own rules are to be decided in accordance with Mason’s “Manual of Legislative Procedure.”
According to Schrader, the manual “refers to the power of the legislative body to discipline its members and, impliedly, the power is also vested in a legislative body to forgive, pardon and rescind, etc., such discipline as was meted out.”
In his letter of finding, Walker stated that none of the complaints outlined by the petitioners warranted the AG’s Office taking action. And, he stated, “we have no authority to investigate the conduct of the town officers or to meddle in the governance of Ocean View or of any other Delaware city or town.”
Wichmann said this week that he agreed with Walker’s findings in their entirety. “These baseless accusations were made by less-than-honorable persons against honorable citizens,” he said.
He added that he was concerned that the signers of the petition, which includes previous town council and planning commission members Richard Nippes, Perry Mitchell, Roy Thomas, Eric Magill and Dick Logue, as well as current commissioners Lois Saraceni and Ron Smith, did not consider the potential of future controversy through their signatures.
“I think that’s a dangerous situation, when any board members in any town get involved on that type of involvement,” he said, adding that it could suggest that those members’ votes were or would be made for or against others’ motions because of the complaint.
Vengazo said that she, too, was concerned for the other petitioners and the potential backlash they could receive from opposing parties.
“I don’t know that they anticipated that their names would suddenly be in the newspaper. I have heard in the meantime that some people have been called who have been on that list, why they signed the list… Our fears about some kind of retaliatory actions have been realized,” she asserted.
In a statement to the Coastal Point, Wood said that he was pleased with Walker’s findings on the complaint.
“Simply said, every issue raised in the complaint was decided in favor of the Town of Ocean View and the town council. More simply said, it was a shutout in favor of Ocean View taxpayers,” he said, noting that Walker’s letter was harsh on the complainants.
“I think the opinion really was critical of the complaint — almost contemptuous. One would hope this will end such petty and unsubstantiated – or, in the case of the chief’s reporting issue, repeated – complaints.”
He added that the he believed responding to such complaints to the State have cost the town’s taxpayers more than $50,000 in unanticipated legal fees.
“Unfortunately, this is Ocean View, and past councilmen and candidates don’t seem to recognize how much these episodes cost Ocean View taxpayers. Was ‘getting even’ a motivation for the complaint?”
Pickrell and Vengazo both stated they were not pleased with the outcome of their complaint, saying they were upset that they were not given the opportunity to respond to questions or give further evidence, and that they were vexed that the AG’s Office had requested Schrader’s response.
“It’s like asking the fox, ‘Who ate the chickens?’” said Pickrell. “Going to Dennis Schrader was not our first choice either, because we know he advocates for the Town. We knew his position would be what we got. If we wanted his opinion, we would’ve gone to him.”
“It looked like the Attorney General’s Office did nothing but rubberstamp Dennis Schrader’s response,” said Vengazo. “It’s important that the sincerity of the people that signed the letter was stressed. It wasn’t a ‘gotcha’ thing… We feel very frustrated that there doesn’t seem any other way for us to be heard.”
Schrader declined this week to comment on the complaint but said that he thought Walker’s decision was an appropriate one.