CIRCLEVILLE – Through a public information request, it was discovered that the purchase contract for the Barthelmas Park expansion may not be a valid real estate purchase contract. There is not a specific date on the signatures and the closing date is in the past. Also, the contract doesn’t even list which property is being sold. It only describes the property as being approximately 20 acres in Pickaway County. According to Kohrman, Jackson, and Krantz, an Ohio law firm, real estate contracts must have definiteness.
Definiteness. The terms of the contract, especially basic terms such as price, legal description, and closing date must be reasonably certain. A court must be able to look at the agreement and determine the parties’ obligations from within the “four corners of the document.”
As you can see below, the basic terms of the contract are not “reasonably certain”, especially the closing date. Typos are typically tolerated in contracts as long as there is a meeting of the minds. Errors become especially problematic on real estate contracts when they occur on basic terms. It’s even more problematic when it involves a public contract, because now the actual terms of the contract are only known by the signers and witnesses, and the terms can’t be discovered through public information requests. In addition to being an invalid contract, one has to wonder if it meets the State’s requirements on transparency of public business.
Has the purchase contract been executed yet?
I asked a handful of city officials if the purchase contract had been executed yet, and that’s the only question that hasn’t been answered so far. My assumption is that it has not, because according to the City Auditor, Mayor, President of Council and other officials, the money has not yet been appropriated for the purchase. A check can’t be written to close the contract if the money hasn’t been appropriated by council.
Was council mislead by the mayor about the terms of the purchase?
In the Circleville Herald, the funding of the park was characterized as:
Don Sherman, Circleville’s service director, told a committee that city applied in November for a Land and Water Conservation Fund grant. If they receive that grant, it’ll be for $150,000, the County Park District will pay $125,000 and the city will owe $25,000 on the property. If the grant is not approved for the city, the County Park District will pay $225,000 and the city will have to pay $75,000. The city should hear on the funding sometime this spring.
This excerpt is copyright of the Circleville Herald and is being included here under fair use doctrine, specifically for legitimate news commentary.
This phrasing is consistent with how Mayor Don McIlroy, Finance Committee Chair Barry Keller, and Auditor Gayle Spangler spoke about the purchase. Through a public information request, we discovered that the funding from the County Park District would come over 5 years, not immediately in one payment as alluded to in the Herald article. This is material because the cost to the city in 2019 would be $125k or $255k depending on the state grant, and the city just announced a $2.9 million budget cut, including cuts to the fire and police departments.
When I asked for documentation on what exactly council approved and how the costs were presented to the city, I was directed to the meeting minutes from the 2/5/2019 meeting.
Here is the ordinance authorizing the mayor to make the purchase. The language in the minutes that I downloaded on 3/15/2019 spell out the funding arrangement with the Parks District, and it mentions that payment will be over five years. According to these meeting minutes, the Mayor did not mislead council about how the Parks Grant funding would work.
An Ordinance Expressing An Intent To Purchase 21.224 Acres, More Or Less Of Land Located Adjacent To Barthelmas Park To Be Used For Park And Other Recreational Purposes Authorizing The Mayor To Enter In A Local Project Agreement With The Pickaway County Park District To Assist In The Funding For The Purchase Of This Property And Declaring An Emergency. Theis stated that this was reviewed in the LRSP cmte meeting. This ordinance allows the mayor to enter into a contract with the park district to fund the $300,000 to purchase 21 acres next to Barthelmas Park. The city has applied for a grant for $150,000, if that is accepted the Park Board will pay $125,000 over five years and the city will be responsible for $25,000. Theis continued with if the city does not receive the grant the Park Board will pay $225,000 and the city will then be responsible for $75,000. Brady motioned to suspend the rules. Strawser seconded. Roll Call. (6 Yeas – 0 Nays). Rules are suspended. Keller motioned for passage. Theis seconded. Roll Call. (6 Yeas-0 Nays).
Notice that no appropriation of funds was mentioned in either ordinance, which is consistent with what city officials told me.
I’m still seeking answers to the following questions
When will city council appropriate the funds?* Which fund will they appropriate the purchase from?* If the funding is coming from the roads and parks fund (206), will Ted Lewis Park funding or road funding be cut to fund it?* When does the City plan to close on this contract?* If the contract is not valid, is it appropriate for the mayor to write a new contract considering the budget cuts?
Updated 3/17/2019: Added the information about not describing which property is even being sold.