Judge upholds magistrate’s ruling on Struthers law director

By Jeanne Starmack

The law director can stay in her position, a judge has decided.

STRUTHERS — A Mahoning County judge has upheld a magistrate’s decision to stop the city’s mayor from forcing the resignation of the law director.

Judge R. Scott Krichbaum of common pleas court upheld the decision by Magistrate Tim Welsh that Mayor Terry Stocker does not have the authority to force law director Carol Clemente Wagner from going through with a resignation she rescinded before its effective date.

Clemente Wagner, the city’s law director for 16 years, had notified Stocker on Oct. 29 that she intended to resign Nov. 30. Her current term is set to expire Dec. 31, 2011.

Afterward, Stocker took steps to notify the county Democratic Party, which would appoint her successor. The position was advertised, and he attempted to seat an interim law director until a permanent appointment.

But on Nov. 16, Clemente Wagner notified Stocker she was rescinding her resignation. The next day, he told her he would not accept her rescission.

Clemente Wagner took Stocker to court, arguing that he did not have the authority to prevent another elected official from keeping her post, and on Nov. 25, Welsh agreed.

The magistrate said an elected official is different from a hired employee. He decided that she had the right to rescind her resignation before it became effective. He prohibited Stocker from appointing an interim.

Stocker appealed Welsh’s decision to the judge, and a hearing took place Thursday.

The mayor argued that as the chief executive officer of the city, he appoints an interim law director pursuant to state law. His attorney wrote that “implicit in that statute is his authority to accept the resignation.”

Stocker also noted that Welsh decided the county Democratic Party was the only entity that has the authority to accept Clemente Wagner’s resignation.

Stocker contended he is the proper authority but pointed out the party accepted her resignation as well by issuing a press release, advertising for candidates and scheduling a meeting to appoint a successor.

Friday, Judge Krichbaum upheld Welsh’s decision.

“Plaintiff [Clemente Wagner] is not a public employee but, rather, an elected official,” he reiterated. “She is not the employee of Mayor Stocker but rather is elected by the people of the city of Struthers. Finally, although he undertook certain actions in response to her letter of resignation, the magistrate finds that neither Mayor Stocker or the Democratic Party ever clearly indicated to plaintiff that her resignation was accepted prior to her rescission of same.”

Stocker said he will weigh his options with his legal counsel and decide if he will appeal the judge’s decision.

Clemente Wagner had no comment.

starmack@vindy.com