Conflict on Council

2020 has been a tumultuous year for Beachwood’s legislators

Beachcomber Archives

“There are lots of other important things that are happening in our community right now. Flooding… security concerns about Beachwood place… it’s budget season… It’s about moving the community forward. I really wish that we could get past this. In the end, we all lose by arguing. We need to be serving the community, not messing around like this,” Council Member Alec Isaacson said.

A two-year-old confrontation between an off-duty Beachwood police officer and a high school student has ricocheted into censure and criminal charges against a city council member, a separate suit against the city seeking to end the prosecution and competing claims between council members about responsiveness, transparency and respect for residents’ civil rights. 

The six city council members who voted for the Aug. 17 censure tell one story.

“Mike Burkons has engaged in actions which council has determined are unbecoming of a City of Beachwood Councilperson and has negatively impacted the Office, Council and the community,” the censure resolution states. “Now therefore be it resolved… that Councilperson Burkons is hereby censured.”

Mike Burkons tells a very different story.

“When I ran for office, I promised to speak out and do everything in my power to change some of the cultural problems that exist in our city government,” Burkons wrote on his blog on Oct. 2. “It is clear how threatened certain elected officials are [now] that I am doing exactly what I promised I would do. This won’t stop me.” 

The Incident

On Sept. 28, 2018, an off-duty Beachwood police officer approached a male high school student playing basketball near the tennis courts.

The officer’s daughter had accused the other student of harassing her, and she had approached him at the basketball courts earlier that day asking what he wanted. She left and returned with her father.

According to the complaint the male student later filed with the Beachwood police, the officer told the boy he was scaring his daughter and asked if he was a Beachwood resident. 

Alix Noureddine, a Beachwood resident who is Assistant Law Director and Prosecutor for the city of Cleveland Heights, who witnessed the incident, approached the officer and asked what the situation was. The officer explained the situation, and Noureddine suggested they speak with the police. The officer answered that his daughter had spoken with the school resource officer, and that he was a police lieutenant himself. 

Noureddine was called in as a witness to the complaint and stated that he believed the officer’s conduct was  “inappropriate,” and that there was “maybe a better way he could have handled it.” Noureddine also stated the officer’s conduct was not “improper.”  

On his blog, Burkons claimed he was especially upset about the first email Noureddine sent because an assistant law director should know that to obtain a police report you only need to email the law director. ”

The Censure

 A year and a half later, on June 6, 2020, Noureddine emailed then Police Chief Gary Haba and CC’d Beachwood City Council members asking to see the police report from the incident. Nouredinne inquired about any action taken against the police officer. In the email, he referenced an “off-duty white, male police[man] harassing a young black kid.” 

Beachwood City Council President James Pasch and Chief Haba responded to the email while the other council members did not. 

A month later, on July 12, Beachwood City Council member Mike Burkons posted on Facebook about the city’s lack of transparency regarding the June 2019 police shooting at the mall. Noureddine sent an email to Burkons. 

“You and your colleagues with the exception of James [Pasch] literally didn’t respond to my email identifying a white Beachwood officer harassing a black child,” the email stated.

An email exchange between Burkons and Noureddine took place on July 12 and 13, after which Burkons forwarded Noureddine’s emails to his employer at Cleveland Heights City Council and CC’d Noureddine. Emails between Burkons, Noureddine and both City Councils can be found here (exhibit 3).

On his blog, Burkons claimed he was especially upset about the first email Noureddine sent because an assistant law director should know that to obtain a police report you only need to email the law director. 

Pasch found out about Burkons forwarding Noureddine’s emails later that day and emailed Cleveland Heights City Council.

“…Mr. Burkons’ viewpoint on this issue does not represent anyone else on City Council or the administration,” Pasch wrote. “We are deeply concerned that he would contact any resident’s employer because of a policy disagreement… I have spoken with my colleagues on this matter and the mayor, and we offer our sincerest apologies to you.”

Beachwood City Council members were also concerned by a text message exchange between Burkons and the police officer. On July 13, the officer involved asked Burkons if there was “anything new?” to which Burkons responded “Nope, I think that email to CH council quieted him.”

These issues were all discussed at the Beachwood City Council meeting on Aug. 17. For approximately the last 20 minutes of the meeting, when the censure came up for discussion. Burkons wrote on his blog that he was given no warning of the censure.

 “The meeting agenda was only updated to include it 26 minutes after the meeting began, which is unheard of,” he wrote. “However, I was first made aware of this about three minutes before Councilman Synenberg introduced the censure at the meeting.”

Synenberg expressed distress as he introduced the motion. 

“[This is] not something that [I] want to do…” he stated, “but [it is our] duty as council and therefore [I am] introducing the resolution for the public censure of Councilman Mike Burkons.”

Mr. Burkons’ viewpoint on this issue does not represent anyone else on City Council or the administration. We are deeply concerned that he would contact any resident’s employer because of a policy disagreement… I have spoken with my colleagues on this matter and the mayor, and we offer our sincerest apologies to you.”

— Email to Cleveland Heights City Council from Beachwood's Council President James Pasch

Burkons immediately asked if he could speak. 

“What rule do you think I broke?” he asked, before reading a letter of his account of the incident and events that followed. 

The letter can be found on his blog.

Burkons explained in an email to The Beachcomber that he originally wrote the letter he read at the meeting as an email to a resident with whom he discussed the incident.

“When I had about three minutes’ notice before the censure was announced because I realized the council packet [went] from 98 pages to over 150, and I saw why, I pulled up what I [had written] and read directly from it,” Burkons wrote.

After Burkons read his letter to council, the censure was read aloud.

“Mike Burkons is hereby censured [for] retaliating against an individual for exercising their First Amendment rights with the express purpose of silencing dissent,” the censure stated.

The full censure can be found here (pg. 98).

The reading was followed by a move to vote, but quickly broke into argument over why Burkons was being censured. 

“It’s not about the fact that you were standing up for the police officer, it’s the fact that you attempted to silence dissent,” Councilman Alec Isaacson said. “You attacked a resident.” 

“I definitely did,” Burkons responded. “You were fine with just letting this guy just call our policeman a racist. I wasn’t.” 

Councilwoman June Taylor quickly called for a vote.

“That’s great, you know, cut off conversation right when I’m making an argument,” Burkons said in frustration. “This is a very fair hearing.” 

Synenberg cut in, moving to allow the conversation to continue as long as it could “be done civilly.” 

Burkons argued he had a First Amendment right to speak up about the incident. 

Isaacson responded that Burkons had “crossed the line the minute [he] contacted Mr. Nouredinne’s employer with the express purpose of silencing his dissent.”

“No, no,” Burkons responded. “I did it with the express purpose of alerting his employer of exactly what he did and exactly how inappropriate it was that he did it.” 

Pasch cut in to read the text Burkons had sent to the officer once again. 

“What is wrong with that? Burkons cut in. “Am I supposed to be embarrassed about standing up for our cop?”

After the text was read, Pasch was ready for a vote, but Burkons wasn’t. 

I have a question… How is this not a violation of open meetings law? Were four people made aware of this before this meeting?”

— Council Member Mike Burkons

“I have a question… How is this not a violation of open meetings law? Were four people made aware of this before this meeting?” asked Burkons. 

“There was no combined meeting,” answered Pasch. 

“I know, but it’s called a round-robin meeting,” Burkons said. “You’re not allowed to speak with people on the same subject to get around public records law and open meeting laws.” 

“Thank you Mr. Burkons,” Pasch responded. “We did not do a round robin.”

Synenberg later addressed this question in an interview with  The Beachcomber

“[I] can only speak for myself, but I only had one-on-one conversations with a couple other members about it,” he said.

“There was a long period of debating [between Burkons’ email and the censure over] what to do,” Synenberg added. “When council members received an email from the law department with the text between Burkons and the officer in which Burkons said he ‘quieted [Noureddine],’ council members began to revisit the idea of censuring [him]. The conversations [turned to] I think we should do something and there’s a meeting on Monday so [we should] look into [censuring him].” 

“[W]e felt that regarding Mike’s dispute with Alix Nouredinne, we needed to do something to let [Burkons] know, as well as the public, that you can expect better of us.”

Back in the meeting, Burkons spoke before the vote. 

“I’ll just say this,” he said. “I think everybody should have been furious at the way that this person intentionally cast our officer when a year and a half earlier he said his behavior was not improper.”

“The resident asked whether or not a report was [made], whether or not the Beachwood police followed up, and asked for the records which we then gave him,” Pasch said.

“Go censure me. Have a good day,” Burkons said as the vote began.

Burkons didn’t get a vote. Everyone else voted ‘yes.’ Everyone looked tired. Isaacson rubbed his eyes as the meeting adjourned. 

“Have a good night everyone,” said Pasch. 

But that was only the beginning.

The Charges

Noureddine filed a criminal complaint against Burkons on Sept. 17 through the Beachwood Police Department. 

University Heights City Prosecutor Stephanie Scalise explained the process in an email to The Beachcomber.

“In virtually all criminal cases, an alleged victim can request that charges be brought against someone, but they do not have the final say in that decision,” Scalise wrote. “In this case, the alleged victim would be Noureddine and he reported that ‘he thought a crime occured and that he wanted the city to press charges.’”

“A prosecutor reviews the evidence… and then determines whether there is probable cause to issue charges” Scalise added. 

Anyone who reads my email will see [it] expressed my critical opinion of the way Mr. Noureddine chose to use his right to free speech. If that criticism shut him up, no laws were broken and his First Amendment right was not violated as that right doesn’t protect his speech against criticism.”

— Council Member Mike Burkons

Normally, this would be done by the Beachwood City Prosecutor, Nathalie Supler. She withdrew because the city prosecutor is appointed by City Council, thereby creating a conflict of interest. On Sept. 14, Supler filed a motion to the Shaker Heights Municipal Court to appoint University Heights City Prosecutor Stepahnie Scalise in her place.

Scalise reviewed and gathered evidence, and then brought the case against Burkons on behalf of the community. 

Scalise explained the significance of this action. .

“[The criminal case] represents the damage that a crime causes to the community [rather than a single alleged victim],” she wrote.

On Sept. 25, Scalise brought a first degree misdemeanor charge against Burkons. This is punishable by either a $1,000 fine, 180 days in jail or both. 

Burkons is being charged for violating Ohio Revised Code 2921.45, which states “no public servant, under color of his office, employment, or authority, shall knowingly deprive, or conspire or attempt to deprive any person of a constitutional or statutory right. Whoever violates this section is guilty of interfering with civil rights, a misdemeanor of the first degree.” 

Burkons is accused of interfering with Noureddine’s civil rights by trying to limit his free speech.

Burkons commented in an email to The Beachcomber.

Even if the intent of my email was to shut Noureddine up, which it wasn’t, it still wouldn’t be an illegal interference of Noureddine’s First Amendment rights.  The First Amendment… only protects speech against official government sanctions/penalties.  Anyone who reads my email will see [it] expressed my critical opinion of the way Mr. Noureddine chose to use his right to free speech. If that criticism shut him up, no laws were broken and his First Amendment right was not violated as that right doesn’t protect his speech against criticism. 

There is no argument my email includes such a threat and even if it did, it wouldn’t be considered legitimate because my position as a Beachwood Councilman gives me no power or authority to impose an official government sanction on Noureddine for his speech if I wanted to.

The Texts

On Sept. 28, Scalise wrote a letter to newly-hired Beachwood Police Chief Kelly Stillman. 

“[I told] him that [my] review of the matter had revealed concerns about [the officer],” she told The Beachcomber. The letter stated the following.

[The text messages] attached to [the censure] caused me to have very serious concerns regarding the conduct of one of your officers – [the officer from the incident]. On the exact same date that the Councilman sent his retaliatory email, there are text messages from [the officer] to Councilman Burkons in which [the officer] thanks him for doing this illegal thing for him. In reviewing this body of evidence for possible criminal charges, I seriously considered whether there might also be probable cause to charge [the officer] with Conspiracy. Ultimately, I decided that the evidence I had in front of me was not enough to show that [the officer] asked the Councilman to take that action on his behalf or that he even knew it was happening ahead of time.

The Lt.’s conversation with the Councilman shows quite a lot to be desired by both men in terms of professionalism, as they engaged in mocking other members of council and criticizing the law enforcement agencies in neighboring jurisdictions.

In an email to The Beachcomber, Burkons posed a question. 

“How would [the] letter from Stephanie — who… expressly threatened to use state power against [the officer] due to his speech that is protected by the First Amendment — not be a substantially clearer example of criminal conduct?

 Some of those opinions [shared by the officer] were critical opinions of certain city officials, including me… As for the part of the letter where Stephanie wrote that [the officer] thanked me for doing “this illegal thing for him,” that wasn’t what [he] was thanking me for, and more importantly, until someone in this country gets criminally convicted for doing what I did, it is misleading to characterize it as an illegal thing.”

On the exact same date that the Councilman sent his retaliatory email, there are text messages from [the officer] to Councilman Burkons in which [the officer] thanks him for doing this illegal thing for him.”

— University Heights Prosecutor Stephanie Scalise in a letter to newly-hired Beachwood Police Chief Kelly Stillman

The texts between Burkons and the officer were dated between May 6 to July 26. Some of the texts contained inflammatory statements against City Council President James Pasch and other council members. The texts also insinuated that it couldn’t have been a coincidence that Noureddine was trying to discredit [the officer] around the time that Beachwood was looking to hire a new police chief. 

In an email to the Beachcomber, Burkons explained his connection to the officer.

I only knew him casually until earlier this year. The first [real] conversation I had with him was earlier this year… sometime between when Nourreddine sent his initial email to Council on June 6th and before I sent the email to CH officials on July 13th.  I told him how unfair I thought it was that Noureddine went out of his way to intentionally portray him the way he did in the email… he expressed how upsetting this was for him, especially at a time when he was the only internal candidate for police chief… After the censure and the criminal charges [were] filed against me, I [got] to know him better and I would say I know him more than casually. 

A few days later, Burkons added one last thought.

[The officer] is a long time resident and Beachwood police officer and he deserves better, especially from city officials who will claim how much they care about our police officers. Since [the officer] is not allowed to comment and defend himself, I will.  He wasn’t thanking me for sending the email to CH officials. He was thanking me for being the only one who even spoke with him and let him know they thought it was unfair and wrong [how Noureddine was portraying him.”

The transcript of the texts was sent to council members a few days before the censure. 

They were obtained by Jack McClure, who sent a public records request to Beachwood Mayor Martin Horwitz and Diane Calta on July 29, (3 days after the last text in the transcript) 

“Pursuant to the Ohio Public Records Act, I am writing to request copies of any and all … tangible or digital documents, files, transmissions, or messages received or generated by Beachwood City Councilman Mike Burkons related to his Facebook posts and emails on July 12, 2020 regarding what the City of Beachwood can do in response to George Floyd’s death.”

“I am… requesting copies of [all media] that Councilman Burkons had regarding potential Beachwood legislation with council members, city employees, residents, or any other party through his official Beachwood accounts or his private accounts/services. I am also requesting copies of all messages or other forms of correspondence that Councilman Burkons had with representatives, officials, or residents of other Ohio cities.”

“I am also requesting copies of any and all communications between Councilman Burkons and members/employees of the Beachwood Police Department since Jan. 1, 2020.” 

Calta wrote in an email to The Beachcomber that Burkons produced the material directly to McClure.

 “Mr. Burkons, contrary to city policy and procedure, produced his text messages and emails directly to the requester,” she said. “The requester then forwarded the responses from Mr. Burkons to the city law department and James Pasch.”

The public records request was sent by [email protected]. Protonmail is an encrypted email service with servers in Switzerland. 

Scalise told The Beachcomber that she is skeptical of Jack McClure’s identity. 

“I tried to track him down myself… I cannot prove it, but I suspect that Jack McClure is not a real person,” she said.

According to Google, Jack McClure is the protagonist of the Jack McClure series by Eric Van Lustbader. Jack is the “Special Advisor and closest friend to the new President of the United States. [He] interprets the world very differently from the rest of us. Jack has had a troubled life. His dyslexia always made him feel like an outsider.”

According to Google, Jack McClure is the protagonist of the Jack McClure series by Eric Van Lustbader.”

The Hearing

Burkons’ case was scheduled to be heard Oct.16, by the Shaker Heights Municipal Courts but was moved to Chardon due to another conflict of interest: Shaker jurors are chosen from Beachwood and any fine from the case would have been paid to Beachwood.

Burkons is represented by Peter Pattakos of Pattakos Law Firm, LLC. 

On Oct. 16, Burkons pleaded not guilty in Chardon Municipal Court. Judge Terri L. Stupica issued a no-contact order forbidding  Burkons from contacting Noureddine. 

Pattakos has made it clear he wants special prosecutor Stephanie Scalise to be terminated. Pattakos claims Scalise is working for free and has asserted that Scalise is a “personal friend” of Beachwood City Prosecutor Nathalie Supler. They are also both lead prosecutors at Shaker Heights Municipal Court. 

Scalise responded to these claims to The Beachcomber

“Nathalie [Supler] and I know each other as colleagues at court, but we’ve never been close friends.  Although I have spoken with them briefly on the phone in order to do my job, I have never actually met Diane Calta or James Pasch or even the mayor in person.”

Scalise told The Cleveland Jewish News that her decisions in this case are not influenced by her connection to Supler.

“[My] handling of the matter, including determining probable cause to issue charges and any subsequent decisions, is wholly independent and not at the specific direction of anyone in Beachwood,” she said.

On Oct. 22, Pattakos wrote a Taxpayer Demand to Beachwood Law Director Diane Calta. Taxpayer’s demands are the citizens’ right to acquire court orders which force government officials to fulfill their duties.

“Beachwood Charter and Codified Ordinances make clear that an attorney, including “special legal counsel,” may only act on the city’s behalf if specifically authorized ‘by ordinance of Council,’ the demand stated. “…As you have admitted, no such ordinance was ever adopted here.”

Prosecutors must remain unbiased to determine whether or not there is enough evidence to bring a lawsuit in the first place. Special prosecutors must also be authorized by Beachwood City Council under Beachwood law.

Isaacson sees this differently.

We shouldn’t be [the ones] authorizing a special prosecutor in this case. By my understanding of Mr. Burkons’ logic: If a member of council were to get a traffic ticket, or if one of their family members were to get [one], and the prosecutor were to recuse themselves, then council would have to vote to appoint a special prosecutor. That gives council way too much of a role in the criminal justice system.”

On Oct. 28, Pattakos also filed a motion to change the venue of the case from Chardon back to Shaker. Pattakos’ reasoning was that according to the Ohio Revised Code, municipal courts may only judge cases where the incident occured in their territory, and Burkons’ case doesn’t fall under Chardon’s jurisdiction. There are lots of other important things that are happening in our community right now. Flooding… security concerns about Beachwood place… it’s budget season… It’s about moving the community forward. I really wish that we could get past this. In the end, we all lose by arguing. We need to be serving the community, not messing around like this.There are lots of other important things that are happening in our community right now. Flooding… security concerns about Beachwood place… it’s budget season… It’s about moving the community forward. I really wish that we could get past this. In the end, we all lose by arguing. We need to be serving the community, not messing around like this.

On Nov. 13, Pattakos argued to the Chardon Municipal Court that Chardon did not have the right to judge the case. The Chardon judge denied the motion, so Pattakos filed for a writ of prohibition in the 11th District Court of Appeals, which has the ability to issue “extraordinary writs” over courts within its territory (including Chardon). An extraordinary writ is essentially a command prohibiting courts from exceeding their power. 

On Dec. 4, the court issued a temporary writ which prohibits the Chardon court from taking action on the case until the 11th district can issue a final ruling. 

There are lots of other important things that are happening in our community right now. Flooding… security concerns about Beachwood place… it’s budget season… It’s about moving the community forward. I really wish that we could get past this. In the end, we all lose by arguing. We need to be serving the community, not messing around like this.

— Council Member Alec Isaacson

Pattakos is hopeful that  the 11th District Court of Appeals will decide in his favor. . 

“I expect the 11th District will uphold the clearly established law, and rule that this case cannot proceed in Chardon,” he wrote to The Beachcomber.

On Nov. 30, Pattakos wrote another Taxpayer Demand to Beachwood City Council to terminate Scalise. 

“[Scalise was] bound by a lawless handshake agreement reached by an admittedly conflicted Assistant Prosecutor [Supler] with one of her friends [Scalise], in an apparent conspiracy to engineer a transparently retaliatory prosecution,” Pattakos wrote.

Pattakos argues Scalise is an illegal prosecutor because the council didn’t pass any ordinance which would have authorized her. 

“The Law Department filed a motion for “appointment of [a] special prosecutor,” which was granted by the Shaker Heights Municipal Court, [but] which misleadingly stated that Scalise had already been “engaged” by the City.”

Pattakos argued that because Scalise wasn’t legally engaged, Supler had lied to the courts.

“[T]he two attorneys who comprise the City’s Law Department—each of whom have admitted that conflicts of interest bar them from participating in any such prosecution of Burkons— have, apparently for political and retaliatory purposes, attempted to circumvent the need for Council approval of Scalise’s appointment by secretly engaging her without authority, and then attempting to sanitize the unauthorized engagement by misleading the Shaker Heights Municipal Court into “appointing” Scalise as “special prosecutor” for the City,” he wrote in an email to The Beachcomber.

In an email to CJN, Pattakos wrote that the decision to prosecute Burkons had already been made before Scalise spoke to Noureddine.

“[Scalise] didn’t even talk to the so-called ‘victim’ here until after Sept. 14, by which point it had already been determined that Burkons would be prosecuted,” he wrote. “This all just powerfully underscores the retaliatory motive behind these proceedings.”

 Pattakos also alleged that Pasch was involved in the charge against Burkons.

According to phone records obtained in a public records request, Pasch had seventeen phone calls with Noureddine between June 9 and Sept. 16, in addition to one-hundred twenty-three calls with Law Department officials over the same time period, as well as a ten-minute conversation with Scalise on Sept. 16, nine days before Burkons was charged on Sept. 25.

Scalise explained that she called Pasch to learn where the documents attached to the censure had come from. Burkons disputed this to The Beachcomber.

“[His explanation] doesn’t make any sense as… the law department, not the council president, handles public records requests,” wrote Burkons. “[It also] doesn’t explain the previous reporting of CJN [where] he told them he wasn’t aware the city hired a special prosecutor [until the charges were filed].”

Scalise and Pasch stand by their explanation of these events.

Pasch told CJN he spoke to Noureddine “[the] same way I would for any resident whose livelihood had been threatened by a fellow member of council but that was the extent of my involvement.”

In a Dec. 7 City Council meeting, City Council retained Kenneth J. Fisher as council to defend against Burkons’ lawsuit. In the Council meeting, Calta explained that she referred the Oct. 22 taxpayer demand to outside council (Mr. Fisher) who then responded to the letter.

“We’ve been advised that Mr. Burkons’ counsel will be filing a suit tomorrow, and in order to defend that lawsuit we need to secure our special counsel. That expenditure will exceed $5,000… At this point in time there will not be any insurance coverage which requires the city to secure outside counsel.”

Pasch and Burkons recused themselves from voting and headed into the virtual waiting room.

Council then voted to retain Fisher as special counsel to defend the lawsuit. Scalise will still continue as special prosecutor for Burkons’ case. The remaining four  council members voted “yes” and the motion was adopted.

On Dec. 8, Burkons filed a lawsuit against the city seeking an order to terminate Scalise’s prosecution.

Isaacson has one last comment for The Beachcomber.

“There are lots of other important things that are happening in our community right now. Flooding… security concerns about Beachwood place… it’s budget season… It’s about moving the community forward. I really wish that we could get past this. In the end, we all lose by arguing. We need to be serving the community, not messing around like this.”

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