‘Who’s going to call chicken first?’ (PLUS VIDEO)

By on April 15, 2015

Council rebuffs suggestions to alleviate Akron’s lawsuit against the mayor

by Patrick Burns

Councilman Dan McCormac contained his frustration at Monday’s Akron Borough Council meeting.

But just barely.

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Akron Councilman Dan McCormac is worried about legal fees spent on a lawsuit filed by the borough.

“Who’s going to call chicken first?” McCormac asked. “At what point do we see legal fees racking up, racking up and racking to the point where we say ‘Enough is enough, let’s move on?’”

McCormac responded to rising legal fees related to council’s suit filed against Mayor John McBeth over a salary dispute when council cut the mayor’s salary from $750 to $150 in a “legal correction.”

McBeth — who said he first learned of the pay cut in December only after Akron cut its direct deposit on his 2014 salary — said it’s a violation of the Pennsylvania Constitution to cut a mayor’s salary once a four-year term has begun.

He’s threatened to sue and bill Akron for legal fees.

While McBeth has not yet sued, Akron Solicitor Kenelm L. Shirk III counter-sued March 18 in what McCormac labeled a “preemptive strike.”

Shirk III claims previous councils erred in raising mayoral salaries dating back to 1976 when raises were simply approved in the budget process.

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Akron Solicitor Kenelm L. Shirk III (middle) said cutting the mayor’s annual salary from $750 to $150 is the borough’s only legal option.

The solicitor said a raise can only be awarded through an ordinance. The last mayoral salary ordinance raised the annual salary of mayor to $150, up from $100, on Feb. 6 1961, according to the lawsuit filed against McBeth filed in the Court of Common Pleas of Lancaster County.

Therefore, according to Akron’s suit, any annual salary paid in the past 54 years to a mayor over $150 was illegal.

The suit requests that McBeth pay back $2,400 in overpayments dating back to 2006. The mayor received no salary payments from 2008 to 2011, according to the suit.

While the suit seeks restitution from McBeth, it appears to ignore “overpayments” made to prior Akron mayors dating back to 1976.

Akron Council first bumped the mayor’s salary to what had been the going rate of $750 in 1994. That year, Harold Summers succeeded Mayor Guy Zell whose salary changed six times in the two-plus decades Zell held office from 1966 to 1989.

Council President Thomas Murray said council had not looked beyond the current mayor’s overpayments and that “a direction on that would be determined” in how Akron would handle previous mayor’s overpayments.

“We’re taking it one step at a time,” Murray said.

Murray said it is unclear how Shirk determined that Akron would seek the return of McBeth’s overpayment dating back nine years.

Murray said Shirk had advised that council members would be personally responsible for fines and overpayments if they did not adjust the salary back to the “ordinance established in 1961.”

“Once you’re aware of it, you cannot ignore the error,” Murray said.

Council was first made aware of the historical procedural errors in granting mayoral raises in late 2013 just around the time McBeth had won a bitterly contested mayoral election.

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Mayor John McBeth was reelected to a third term that began in 2014.

McBeth said after Monday’s meeting that his lawyer, Glen J. Smith, would likely respond to the suit within a week.

He and Murray agreed that the Pennsylvania Borough Code clearly prohibits altering “mid-term compensation of incumbent elected officials during their current term.”

On Tuesday, Murray said McBeth was paid in December – the first year of his term – the proper salary, so no alteration was made.

“We did not change his anything,” Murray said, “The mayor’s salary is decided by the 1961 ordinance which set the mayor’s salary at $150.”

Interestingly, the 1961 ordinance appeared to have been adopted by borough council in the last year of Harold Wolf’s term.

McBeth said the salary of the mayor was $750 when he was elected and that the reduction to $150 was made after he began his four-year term.

McCormac on Monday said other options should be explored in light of the mounting legal fees and apparent legal conundrum.

Finance committee chairman Perry Lorah said legal fees paid up until last month were about 36 percent of what was budgeted.

“You know these legal fees are going to go up as this case continues on with the mayor,” McCormac said.

“Next week, next month, 10 months from now we’re going to have to look down at the numbers and say ‘Oh boy, was it really worth it?’”

He suggested that council and the mayor agree to pay the $600 deducted from McBeth’s original salary to a charity chosen by the mayor.

Councilman John Taylor agreed that the charitable donation was a good idea. But he and Councilman Earl Shirk questioned the legality of doing so and whether it’s worth spending legal fees to find out.

“Unless there’s some indication that that is an acceptable solution, I don’t want to spend (the solicitor’s) time researching it,” said Earl Shirk.

McBeth said the option of paying a portion of his salary to charity would have to be discussed with his attorney.

John Williamson submitted a mediation proposal to have McBeth and council meet with professional mediators from Mennonite Central Committee and Akron Mennonite Church.

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Akron Council discusses legal options at it regular monthly meeting on Monday.

McBeth said he supported the mediation proposal while council balked.

“I’ve been involved in a lot of mediation over the years and I do believe in mediation,” said Earl Shirk.

“The only challenge I see with doing this is we’re talking about an ordinance that — at least in my interpretation — does not leave us an option. So it’s very difficult for a mediator to reach a conclusion when there is a law that, at least in the interpretation of our council, says we cannot cross.”

Patrick Burns is a staff writer for The Ephrata Review. He welcomes your questions and comments and can be reached at pburns.eph@lnpnews.com or at 721-4455.

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