Silence a resident: A story is born!

by David Miller

Loveland, Ohio – Life-long resident, Neil Oury asked the Mayor for time to speak at the February 14 council meeting. The request was granted and his name was added to the agenda. Oury said he wanted to speak about future downtown development projects. He barely started speaking when Vice-Mayor Angie Settle, who was presiding over the meeting in the absence of Mayor Mark Fitzgerald, continuously interrupted him and said he must stick to the subject of what he was given permission to speak about.

The first interruption was when Oury talked about how Loveland taxpayers paid $20,000 to put on Christmas in Loveland and the Fourth of July celebration, events previously put on by the Loveland Chamber of Commerce at no cost to taxpayers. (“On the sly” – How City Hall pirated Christmas in Loveland)

Settell: “I’m sorry, if you don’t get to your point, I’m calling you out of order. You signed to speak about one thing.”

Oury: “Yeah, I’m getting to it.”

Settell: “No, You got to get to it right now. I’ve reminded you three times, I’m sorry but your time is up.”

The more adamant interruptions by Settell was when Oury tried to speak about a lawsuit filed against Fitzgerald when he was City Manager of North College Hill.

Oury says he is very concerned that a decision had been made to demolish Loveland’s City Hall without public knowledge. He said the project to construct a new City Hall was announced as a done deal in the City newsletter and he reviewed past meeting minutes and could find nothing concerning the project. He says that he wants more transparency in decisions about downtown development and knowledge about how Fitzgerald managed affairs as City Manager of North College Hill should be a warning to Loveland residents and council. He said that when City Hall takes over popular public events, interferes with events like the Loveland Farmers’ Market, and decides behind closed doors to rebuild City Hall, it’s time for a change from business as usual.

Oury: I find it real ironic that basically, our mayor acted the same way when he worked for North College Hill as city administrator. He was…

Settell: OK Mr. Oury, ya know…

Oury: There’s a very good point to this.

Settell: You talked about, um…

Oury: You’re interrupting my time.

Settell: Well I know, because I’ve asked you several times to stay on point, OK. This is not on point when you start talking about individuals’ personalities. Let’s confine it to the issue, please.

Oury: It’s not personalities.

Settell: Well, That’s what it sounds like to me.

Oury: We have a mayor that has committed fraud and is being sued for fraud.

Settell: OK, That’s it.

Oury: And I think he is doing the same thing here.

Settell: OK, I’m sorry. I’m not going to stand here and let you talk about people who are not here to defend themselves.

Oury: He can watch it on tape.

Settell: Well, he’s not here.

Oury: I’m not going to discuss it with him, I’m making a statement.

Settell: OK, your times up. Thank you.

Below is video of the exchange. You can also read at the bottom of this story the full text of the remarks Oury tried to read at the council meeting.

Angered after reading the minutes of the meeting, Fitzgerald lit into Oury at the next council meeting saying Oury lied about ever being accused of fraud.

In this video, Oury reacts to Fitzgerald’s anger:

Oury also spoke to Loveland Magazine about his treatment by Vice-Mayor Angie Settlell:

The next council meeting brought a response from lawyer and Councilman Ted Phelps who decided to comment on Fitzgerald’s allegation that Oury lied. Phelps said, “The statement about the Mayor having never been on the receiving end of a complaint of fraud is not corroborated by filings made in Hamilton and Montgomery County courts.”

BACKGROUND OF FITZGERALD’S WOES AS CITY MANAGER OF NORTH COLLEGE HILL

In June of 2014, when Shawna O’Shea was a member of the North College Hill (NCH) council she filed a taxpayer lawsuit against the City and City Manager Mark Fitzgerald for what she argued, “Was an attempt to continually misrepresent facts to Council, engage in fraudulent behavior toward the Ohio Public Employees Retirement System (OPERS), misapply city funds, and abuse corporate powers.” The lawsuit revolved around allegations of combining the salaries of Fitzgerald and his wife, Economic Developer Linda Fitzgerald, in order to increase future retirement checks for Mark Fitzgerald.

Then-Mayor Dan Brooks and Mark Fitzgerald wanted Linda Fitzgerald to take no salary and to have what would have been paid to her, combined with her husband’s salary.

O’Shea alleged Mark Fitzgerald was engaged in fraudulent behavior toward OPERS in order to bolster his retirement benefits. By combining both salaries it was alleged that Mark Fitzgerald could report all the income towards his own retirement.

A document filed in the case by O’Shea’s attorney claimed, “Defendant Mark Fitzgerald initiated the entire scheme solely to further enrich himself” and that he, “Conspired to defraud OPERS” .

In a document revealed in court, Brooks explained:

“Mark Fitzgerald approached me last year and informed me that he is looking forward to retiring in 4 years but, he needs to bolster his OPERS pension. I assume most of you realize that the pension is based on the average of your best three years salary. Thus, he asked to be made an employee as opposed to a contractor. He suggested that his and Lynda’s salary be combined thus totally $125,000 per year. As an employee, we need to pay a portion of his OPERS but not all. In addition, he will pick up a portion of his health insurance. In exchange for this, he and Lynda will freeze their salary at this level for the entire four years.”

In the original complaint about the combined salaries, O’Shea’s attorney, Matt Miller-Novak, alleged that even though Linda had retired from her position as economic development director, Mark continued to collect her salary as if his own. He said, “Mark Fitzgerald continued to pay himself the entire package price of $125,000 intended to compensate both Linda and Mark Fitzgerald.” Miller-Novak said that no one on the NCH Council knew that Linda Fitzgerald had resigned. “Instead, he kept quiet and he has been pocketing City funds he is not entitled to. He is abusing his powers, he is misusing City funds, and he is self-serving.”

Nicholas Link is a former Auditor of NCH. When he found out about the combined salaries he filed a complaint with OPERS. The very first person he spoke to after describing specifically what was happening said, “Well, they can’t do that,” said Link.

O’Shea’s lawsuit claims Mark Fitzgerald gave himself a $41,000 raise, above the $84,000 he was being paid for his City Manager position, and over four years received $120,000 in “ill-gotten gains” from “his fraud and deceit.”

Link also said on Monday that he has been told by several insiders at NCH that OPERS is now refusing to accept the additional payment that NCH was sending them for the $41,000 income, and is returning the money to NCH. He said that after OPERS studied the facts and did their due-diligence, “Once they determined that Mark was not legitimately making $125,000, they decided would send back the over-payments that represented anything above his $84,000 salary.” Link said that since the OPERS payments were in part deducted from Fitzgerald’s salary, he assumes that NCH would be returning the money to Fitzgerald.

The lawsuit also alleges that NCH Law Director, William Deters directed Linda Fitzgerald to draft a “phony” letter designed to fool OPERS into believing she had resigned but led the NCH Council to believe she was still working. It is alleged, and confirmed by Link that on several occasions, Linda would appear at council or other meetings as if she was still employed by the City.

Also, O’Shea claimed that in 2014, Fitzgerald illegally granted a contract for enforcing the city’s building codes to his friend Gerry Stoker, despite the council voting down the contract. She claimed that Fitzgerald presented a contract to hire Stoker to NCH Council and they voted against it. They wanted competitive bids for the work. Days after he got the no vote, Fitzgerald went ahead and signed a contract with Stoker’s building inspection firm, XPEX. Stoker is a former zoning department head for the City of Loveland.

Both Mark and Linda Fitzgerald were asked to respond to Phelps comment and the allegations made in the O’Shea lawsuit. Mark replied via email saying:

There is no merit to the O’Shea complaint. It is politically motivated designed to tarnish my many years of public service.

NEVER have I been prosecuted for any alleged misconduct.

NEVER did the O’Shea complaint ask for relief on fraudulent conduct.

Attached is the memo from NCH mayor brooks to council of his intent to combine the positions (begin at the third paragraph and please convey it verbatim in your Loveland magazine article)

Council endorsed mayor brooks decision.

Read the attachment HERE: SKM_224e17032114030

On February 13, 2017, the NCH Council voted to settle the outstanding lawsuit just as it was heading to trial. According to the settlement agreement, the City of NCH agrees to never again employ or contract with Mark Fitzgerald including any entity he has an association with in any capacity. The City of NCH also agreed to never again compensate employees beyond what NCH Council appropriates. The City agreed to pay legal fees to O’Shea’s lawyers. The agreement was for a total of $100.000. $75,000 came from NCH coffers and $25,000 was paid by a NCH insurance policy. O’Shea, who only sought injunctive relief, received no money.

NCH Council Member Matt Wahlert voted yes to settle the lawsuit against Fitzgerald. He said in a press release, “What the city did, I believe was wrong and I thought we would lose this case.”

Link said that to his knowledge, Fitzgerald does not have to return the $120,000 because it wasn’t a stipulation of the settlement agreement. He said that the current majority on NCH council will probably never ask Fitzgerald to return the money paid to him for the services Linda Fitzgerald was not providing. “The Teflon Don strikes again,” is how Link described it.

NCH also hired and paid the attorney that defended Fitzgerald in court. NCH hired a separate law firm to defend itself in the lawsuit.

Matt Wahlert also said, “I felt compelled to settle because I believed the alternative would have been a lengthy and more costly litigation process. A loss by the city would mean much higher legal fees and the distinct possibility of cutting services. I was not prepared to throw the baby out with the bathwater.”

The Writer’s Notes:

It has always been the policy of Loveland Magazine to not report when someone has been merely accused of a crime. So, even though many citizens have encouraged us to report the fraud allegations over many years — we have not done so until now. It is our belief that all persons are innocent until “proven” guilty and that everyone deserves their day in court. The case against Mark Fitzgerald never went to trial so Fitzgerald’s guilt or innocence was never determined by a judge or jury.

Also, of note is that attorneys use a lot of hyperbole in their pleadings to a judge and some of that is reported here. They also know better than the rest of us not to throw around charges haphazardly. They choose their words with caution.

The court case against the Loveland Mayor only became newsworthy when a Loveland citizen wanted to talk about it at a council meeting and wasn’t allowed to do so. Add to that, the Mayor’s angry diatribe directed at Neil Oury for daring to repeat quotes he found in a lawsuit – escalated what had happened to “newsworthy.”

Add to that, Loveland Magazine believes that the most important thing that ever happens at any city council meeting is when citizens rise to speak what is on their mind. We believe that council must listen, listen with respect, pay attention, and no shuffling papers. When asking voters for their support they told them they would listen to their concerns. Vice-Mayor Settle made this “newsworthy” when she would not let Neil Oury speak his mind and attempted to cover up what had happened to Fitzgerald while employed at NCH. Oury has every right to bring up the subject and no one at the council table should ever censor a citizen’s speech. It’s not Angie Settell’s microphone, podium, council chamber, or city building.

They were bought and paid for by the people.

Below is a scanned copy provided to Loveland Magazine of the full remarks Neil Oury wanted to present at the Loveland Council meeting on February 14. Oury marked the words he was able to say in orange. Oury marked “Quotes” he found from other sources, including court documents, in yellow.