‘I Am Not a Rubber Stamp’

July 26, 2024 by Amy Patterson

Last November, Geauga County Commissioners moved to purchase about 17 acres on state Route 6 in Chardon for a future senior center.

The sale has since languished and in recent weeks, commissioners complained Geauga County Prosecutor Jim Flaiz was holding things up.

During their regular session July 9, Commissioner Tim Lennon said outside legal counsel found nothing wrong with the sale contract and it was ready to move forward.

“I mean, we can just maybe ask for an explanation in writing? A letter? Email?” Lennon said. “If (Flaiz) wants to come in public session and explain … why we’re not moving forward and signing this agreement, but to just go quiet and silent on this and sit on their hands …”

Flaiz agreed to discuss the issue at the commissioners’ July 16 meeting, with the caveat they waive attorney-client privilege, so it could be discussed in public. Dvorak and Commissioner Ralph Spidalieri agreed to the waiver.

“There’s been a lot of finger-pointing and blaming. Unfortunately, the member of the board that’s doing a lot of the blaming and finger-pointing didn’t bother showing up for this meeting,” Flaiz said, referring to Lennon, who was absent.

Flaiz said his office communicates directly with county staff, mostly through County Administrator Gerry Morgan — also absent from the July 16 meeting — and Assistant County Administrator Linda Burhenne.

“We communicate with your staff,” he said. “They do not effectively communicate with you and then you guys are taking shots at my office in public meetings.”

Flaiz said his office sent an email to commissioners March 28 outlining specific objections to the purchase agreement, which include a non-refundable $50,000 deposit and only a 10-day inspection period following the completion of the sale.

In addition to the non-refundable deposit, the seller has not disclosed any possible problems like old gas tanks or lines, he said, adding the seller must separate the mortgage for the property from the other properties it is currently lumped in with before the sale can go through.

“If (Morgan is) not communicating that to you from March 28th, I’m struggling to see how that’s our fault,” Flaiz said. “(Assistant County Prosecutor Laura LaChapelle)’s got dozens and dozens and dozens and dozens of emails on this back and forth with Gerry, with the outside counsel you wanted to look at it and we’ve been trying to resolve these issues.”

LaChapelle and his staff made a number of changes to the agreement and the county’s outside legal counsel made more, further hindering progress, Flaiz said.

“That redlined version with the changes was sent to Gerry. Gerry then mistakenly sent a different version to the seller — didn’t send our redlined version — so then they marked that up and sent it back,” Flaiz said. “So, from the seller’s perspective, they’re like, ‘Well, wait a second, you guys already agreed to this other language. Gerry sent us an agreement that you guys had signed off on that didn’t have these changes, now you want these changes.’”

Flaiz has a statutory responsibility to protect the county treasury, to protect the county from being sued and to prevent deals that have “unconscionable contract language,” as does the agreement for the vacant Dollar General on the property, he said.

“We’re getting pushed constantly by Gerry and Linda to just sign off on this, sign off on this. I am not a rubber stamp. I’m not doing it,” Flaiz said. “Unless this stuff’s changed, we are not signing off on it. And if that complicates your lives or delays a senior center for the aging, then go find another building that isn’t part of a short sale and that has a reasonable seller who will work with us.”

Flaiz called these contract issues “totally ridiculous” and criticized the commissioners for not acknowledging the vulnerable position Morgan and Burhenne are putting the county in by pressuring his office to sign off on the deal.

Burhenne pushed back on the fact the $50,000 deposit is not non-refundable.

Flaiz said after the 10-day period outlined in the current contract, it is, but that is too short of a time to discover major problems. He pushed for a 60- or 90-day inspection period.

“It is our opinion that the building is an empty box,” Burhenne said. “We know what the condition of the building is. We know we’re going to have to put money into it.”

Flaiz questioned potential environmental problems.

“You have 10 days to complete the phase-two environmental site assessment,” he said. “What if they make a disclosure when you sign this agreement that there’s been environmental problems on the property? Maybe they’ve inherited them.”

Spidalieri said their outside counsel from Meyers, Roman, Friedberg & Lewis — an additional attorney beyond representation through Benesch, Friedlander, Coplan & Aronoff LLP — was comfortable with the deal.

Burhenne told Spidalieri Flaiz had not yet seen that communication to the commissioners’ office.

“We had a real estate attorney look at it to get a second opinion because we … wanted to make sure we understood that we were in good shape,” Burhenne said. “And, just to be fair, you claim that you sent us something on March 28th and we sat on it. I have the exchanges back and forth. It went on for a month.”

“Are you denying that Gerry sent them the wrong version?” Flaiz asked.

“I did not — and I’m not aware of it and he’s not here to defend himself,” Burhenne said.

In an email July 24, Burhenne said LaChapelle represented commissioners during the contract negotiations until they brought in Benesch, who then worked with Morgan and LaChappelle to complete the contract.

On May 21, LaChappelle emailed Gerry to let him know finalized signed versions of the agreement were coming and to have their deposit ready, Burhenne said.

“Within a week, (LaChappelle) contacted Gerry and told him her office would not be signing the contract,” she said, adding despite asking why, they never received a definitive answer. 

Flaiz only agreed to speak to commissioners in an open, public session, she said.

Outside counsel from Myers, Roman cost the county $885 and Benesch, about $7,335, Burhenne said, adding the county has paid for preliminary title work, an appraisal and a land survey.

“(That) makes the contention of lack of due diligence somewhat exaggerated,” she said. “The likelihood is that the prosecutor has killed this deal.”

If that’s the case, commissioners will undoubtedly face higher costs in pursuit of a new Chardon Senior Center, Burhenne said, adding additional costs could arise from commissioners having to retain the current senior center at 470 Center Street in Chardon longer than they had planned.

During their meeting July 16, commissioners Spidalieri and Dvorak asked Flaiz to draft a letter giving the seller 15 days to comply with the changes his office made to the purchase agreement, noting the process has already languished for over 70 days.

“I’ll be quite honest with you … I think we need to make a decision right now, if they come back and (ask) for an extension, I would say no,” Spidalieri said. “It’s either yes, you’re going to do this or you’re not.”

“The ball’s in their court,” Dvorak said.