BREAKING NEWS

Building Crafts had filed action against the city and Holt relating to the bidding and award of a construction contract known as the city of Hillsboro Wastewater Treatment Plant Upgrade project.

According to Case No. 09CV519, the court reviewed the matter and concluded a restraining order was appropriate. The court ordered the city not to award the construction contract to any party other than Building Crafts, Inc. during the pendency of the order.

The court order was in effect for 14 days.

On Oct. 5, the court modified its ruling as follows:

This cause came before the Court this 5th day of October, 2009 on the motion of the Plaintiff for a preliminary injunction. Plaintiff was represented by Patrick A. Devine, Attorney at Law, Columbus, Ohio. Defendants were represented by Kathryn Hapner, Assistant Law Director for the City of Hillsboro. John Higgins, Attorney at Law, Columbus, Ohio appeared on behalf of the Defendant as "Of Counsel."

The Court had previously ordered a continuance of the evidentiary hearing on the motion for preliminary injunction due to the unavailability of a key witness in the case because of a death in his family. However, the Court had ordered the parties to appear to address the issue of whether an actual decision to award the bid had been made by the city.

After hearing the statements of counsel, the Court finds that the contract that is the subject of this action is to be awarded by the City Council of Hillsboro, and that decision had not been made prior to the issuance of the temporary restraining order in this case. The Court finds that the Court cannot proceed with a ruling on whether the Defendant has violated the law in its awarding of the contract that is the subject in this action until it has actually accepted bids on the contract.

Therefore, it is the order of the Court that the temporary restraining order issued on September 24, 2009 by modified as follows: The City Council of the City of Hillsboro shall be permitted to meet and to make a decision to award bids for the contract that is the subject of this action. However, the Defendants shall be restrained from executing any contracts for the project until the Court has issued a decision on the motion for a preliminary injunction. The Defendant

indicating that it was likely that a meeting of the City Council could be held this week; it is ordered that evidentiary hearing on that motion be set for October 16, 2009 at 8:30 a.m. 

The Court was informed that Mr. Higgins, of Frost, Brown & Todd, Attorneys at Law, Cincinnati, Ohio was also the attorney representing Dugan and Meyers, which is the second low bidder for the partial combined bid for the contract for which Plaintiff bid and is apparently the bidder that the Defendant's Engineer will recommend be awarded the partial combined bid rather than Plaintiff. The pleadings in the case further indicate that Dugan and Meyers filed a protest of the Plaintiff's bid and that the Plaintiff's bid is approximately $183,000 lower than the combined bid of Dugan and Meyers for the work bid by Plaintiff.

The Court finds that these allegations create a potential if not actual conflict of interest for Mr. Higgins and his firm as their ethical obligation is to represent the interests of their client, Dugan and Meyers, not the City of Hillsboro. If Dugan and Meyers is awarded the bid, and the pleadings are correct, there will be an additional cost to the taxpayers of the city of Hillsboro of $183,000. Therefore, the Court will not permit Mr. Higgins or any other attorney from the law firm of Frost, Brown & Todd to represent the Defendan in this action.

The Court further notes that in its disclosure of witnesses, the Defendant listed the City Law Director Fred Beery as a witness in this case. Ms. Hapner is the Assistant City Law Director and is appointed by Mr. Beery. Rule 3.7 (c) of the Ohio Rules of Professional Conduct for attorneys provides as follows: "A government lawyer participating in a case shall not testify or offer the testimony of another lawyer in the same government agency, except where division (a) applies or where permitted by law." Paragraph (a) of the rule permits testimony only if it relates to an uncontested issue, the nature or value of legal services rendered in the case or if the disqualification causes a substantial hardship on the client.

Therefore, it is the ruling of the Court that in the event Defendant intends to call Fred Beery as a witness in this case, that neither Ms. Hapner nor any other lawyer employed by the City Law Director's office shall be permitted to represent the Defendant in this case. If the Defendant believes that the disqualification of the Law Director's office will work a substantial hardship in this case, it shall file a motion requesting hearing on this issue by October 7, 2009 and the Court will conduct a hearing on this matter on October 9,  2009 at 11 a.m. If no motion is filed, and Ms. Hapner remains as counsel for the Defendant, then Mr. Beery will not be permitted to be called as a witness for Defendant in this case.

IT IS SOR ORDERED.

Signed,

Highland County Common Pleas Court Judge Rocky A. Coss