A general overview of the issue about Beachwood ignoring the law to award GPD all contracts.
This will be a general and broad overview of this issue (I apologize in advance for the typos and poor writing I am sure this contains, but I didn't have much time to throw it together).
In Beachwood, like many cities, we don’t have an in house “City Engineer” who is an employee of the City, and instead we contract those responsibilities out to an outside firm on a contract basis. In Beachwood for at least the last decade, we have hired Joe Cuini, as an outside contractor (and not a City employee) and his firm GPD, to be our "City Engineer" and provide the “City Engineer” responsibilities.
Regardless of whether the person or firm hired to provide the “City Engineer” responsibilities is an in-house employee or outside contractor, they are supposed to be the City’s unbiased and non-conflicted experts to provide advice and guidance on all things engineering and infrastructure related.
There is a state law (ORC 153.65-.71), that requires that all engineering and design contracts over $50k, must be awarded in a specific competitive three phase process which is best explained in the first four pages in this link.
Whether a city hires an in house “City Engineer” or contracts it out like we do, one of the responsibilities of whatever person or firm is in the role of “City Engineer” is to ensure the three-phase process required by Ohio law (ORC 153.65-.71) is followed when awarding engineering and design contracts over $50k.
However, in Beachwood, when there is an engineering or design contract over $50k, instead of following the requirements of the state law, we rely on the expertise of Joe Ciuni, our "City Engineer", who in that role is supposed to be the City's unbiased and non-conflicted expert on all engineering and infrastructure related things, and follow his recommendation that we "award" the contract to his firm, GPD, at whatever he determines his firm should be paid for the work, without allowing any other firm to submit their qualifications or a proposal to be considered.
Not including this $1.3m design contract, which I will talk about in a moment, just since May of 2020, when I first pointed out this illegal practice, which was ignored, the City has "awarded" GPD 7 contracts this way, without allowing any other firms to be considered, with totals of $299,506, $110,000, $111,500, $77,296, $122,000, $82,000, $54,416, $55,000.
Our law director has determined that under the "Home Rule" exemption, the City has the authority to ignore the state law (ORC 153.65-.71) and instead follow the similar local law the City of Beachwood passed (see BCO 169.01-.02) in 1998 that lowered the threshold from $50k to $25k.
I pointed out to our law director that it is clearly established that “Home Rule” authority does not apply to state laws that pertain to the public’s “health, safety and general welfare”, which ORC 153.65-.71 clearly does.
I pointed out to our law director that if this wasn’t the case, a City like Beachwood could simply pass a local ordinance saying it was legal to provide abortion services within City limits, and doctors could set up clinics here.
I also pointed out to our law director that even if “home rule” did apply here (which it doesn’t), it would only allow the City to follow the local law instead of the state law, and in this instance, Beachwood doesn't follow the local law either.
All of these points were ignored.
Now let’s move past the background and on to the recent $1.3m design contract we just learned GPD basically awarded to themselves, while ignoring the requirements in state law (ORC 153.65-.71).
The reason this example is different than the others 7 contracts mentioned above that were “awarded” to GPD since 2020, is not only because the dollar amount is $1.3m, when the next closest example is $298k, but also because $1m of the $1.3m contract is funded by ODOT with federal monies.
Because of this, the ordinance ODOT required City Council to pass stated that the contract for the detailed design phase must be awarded in compliance with ORC 153.65-.71, making it impossible for the law director to cite his clearly flawed “home rule” argument like he did in other instances.
Instead, at the Council meeting on 6-21-22, where Council was asked to vote to move forward with the $1.3m detailed design phase of this project for a proposed traffic improvement project in the Richmond/Chagrin/271 area, Council President Alec Isaacson, Law Director Stewart Hastings, Public Works Director Chris Arrietta and City Engineer Joe Ciuni of GPD, claimed that the City actually awarded this $1.3m contract in compliance with the requirements of ORC 153.65-.71, and conducted the specific required competitive process mandated in state law (ORC 153.65-.71), back in 2016, which they claimed GPD prevailed as the top ranked firm and were awarded this contract, over “3 or 4 other firms”.
I was 99% certain that when they made this claim at the meeting, that it was a clear lie but any uncertainty that existed went away a few days later when ODOT provided the documents I sought in a public records request.
The records ODOT provided show that the process that occurred in 2016, which our Council President Alec Isaacson, Law Director Stewart Hastings, Public Works Director Chris Arrietta and City Engineer Joe Ciuni of GPD, referred to in the meeting, was for the $591k preliminary “planning study only, to perform an Interchange Modification Study and to conduct preliminary development to identify a preferred alternate for implementation”.
ODOT went out of their way to make clear to the City and GPD, at least a half dozen times in written correspondences, that this $591k contract from 2016, was only allowed to be a planning study and could not include design elements, and after the 15 months it was expected for this study to be completed, then the City had to pursue the detailed design phase as separate project and separate contract.
After I received these documents from ODOT, I emailed our law director to notify him that they clearly showed that what he, Council President Alec Isaacson, Public Works Director Chris Arrietta and City Engineer Joe Ciuni of GPD, told us at the 6-21-22 meeting was objectively untrue, when they claimed the City properly awarded this $1.3m contract in compliance with the requirements of ORC 153.65-.71, back in 2016, which they claimed GPD prevailed as the top ranked firm and were awarded this contract, over “3 or 4 other firms”, was objectively untrue.
The Law Director's response was basically that ODOT didn’t have a problem with the way we did this.
I responded and asked him to identify the specific individuals at ODOT he spoke with that told him that the City didn’t have to follow the law, pointing out no one at ODOT has that authority.
I also pointed out that as the law director, it is his job and responsibility to know that ORC 153.65-.71 clearly requires that ALL CONTRACTS over $50k (not just some), must be awarded in this specific competitive process it mandates.
I can't imagine that someone who is in the position of law director would actually try to make the argument that, "Yeah, I know ORC 153.65-.71 clearly says that all contracts over $50k must be awarded in this specific competitive process, and I also know that ODOT just required us to pass an ordinance specifically stating that the $1.3m contract for the detailed design phase must be awarded in compliance with the requirements in ORC 153.65-.71. However, I figured that if the contract for the $591k planning study was awarded six years earlier was awarded following ORC 153.65-.71, then it would be cool if we just ignored the requirements in ORC 153.65-.71 for all other contracts related to that project, and just awarded them to the same firm".
As impossible and incompetent of a legal argument this is, it seems to be the one our law director is making right now. I have to assume he knows how embarrassing flawed this argument is, but is still making because he expects that Council President Alec Isaacson, and Councilman Eric Synenberg, who is the chair of the legal and personnel committee, are likely to pretend they believe it is a competent and reasonable legal argument, because they want this project to go through.
As expected, the law director never responded to provide the names of the people at ODOT that he claimed didn't have an issue with the way we are doing this, or that we didn't have to follow the requirements of ORC 153.65-.71.
For those of you who got to the end of this without falling asleep, if you have any questions, please feel free to email me at Mike@Burkonsforbeachwood.com, or call me at 216-832-6771.
Mike Burkons
