Perry Village Releases NDA contract and Solicitor Statement
PERRY - After a public records request by The Ohio Register (TOR), The Village of Perry has released the nondisclosure agreement between the village mayor, James Gessic, and Newport Equities LLC, the legal arm of Province Group, developer at the heart of the data center controversy in the village.
TOR has read through the document and provided it for public viewing below. After analyzing the document, some irregularities were noted, though some may not be uncommon for this specific type of deal, depending on where the deal was at the stage of this agreement's creation. It is evident based on the document that a similar or formatted template was used by Newport Equities LLC for use with Perry Township and Perry Village as multiple strikethroughs are present throughout where the Village name as an entity has been added.
Most notably, there may be a possible attempt within the document to supersede state law by outlining a paradox of authority. The agreement states that the Mayor can only act during a public meeting, yet it attempts to push all discussions relating to the project to occur in "Executive Session" unless agreed otherwise (p. 1). Critics of these types of agreements have stated the tactics are a potential circumvention of Ohio’s Open Meetings Law (ORC 121.22) and potentially why many in the village felt the operation was being ushered in 'under cover of night'.
Additionally, the document seems to attempt to bypass the Ohio Open Records Act by self-defining the agreement itself as a "Trade Secret." Section 1 explicitly claims:
"To the extent permitted by law, the Parties agree that this Confidentiality Agreement is a 'Trade Secret'" (p. 1).
These sorts of tactics have been criticized by other as attempts to shroud who has signed an NDA and who hasn't, with elected officials often unsure if they can even discuss their existence without incurring legal consequences.
It was additionally noted that Newport Equities LLC did not sign the document provided, which could mean this was an earlier draft provided to TOR, instead of the final draft accepted by all parties.
Section 2 of the agreement references "designs, specifications, documentation “or other documents generated from this information”, yet none were provided as part of the request fulfillment. The document mentions the "Purpose" is developing a data center on "real property," but it fails to define the specific parcels or provide a site map, which would be standard for a project of this scale (p. 1).
The agreement was provided with the following statement The village wished to have published: the Village wishes to add the following additional information regarding the attached document (provided by Solicitor James O'Leary)-
"1. As Solicitor, I advised Mayor Gessic to enter into the Confidentiality Agreement in order to gain additional information from the developer on the potential plan for a Data Center. I reviewed the document and spoke with Mayor Gessic who only signed it at my recommendation.
AND
2. Mark Kersake's statement on the Confidentiality Agreement:
Any information shared or discussed under the NDAs was subsequently shared in a public presentation I made to a joint session of the Township Trustees, Village Council members, JEDD Board and some School Board members held at a Village Council meeting on April 11, 2024, which was before the Village Council (or the other two entities) voted to approve a land sale to us. Following that April meeting, details of the project and the land sale were discussed and shared with all members of the governing bodies of the aforementioned agencies, so the NDA was of no real consequence. The NDA was really only “live” from the day I signed them (February 1, 2024) to the above-mentioned April 11th meeting. After that, information about our project and the price and terms of the proposed land sales were discussed at several public meetings by the three agencies before they each voted to sell the land.
Mark J. Kerslake, CEO
Province Group/Newport Equities LLC "
In a separate public records request, It was shown that Village Solicitor James O'Leary was compensated for his legal work in some regard related to work completed on the Newport deal. According to the village , "this deposit [is to] be used for legal fees incurred by the Village, who has engaged the services of Calfee, Halter & Griswold LLP specifically for counsel related to Economic Development matters. This firm is not in anyway associated with Village Solicitor James O'Leary."
Provided documentation shows O'Leary was potentially compensated $25,000 for legal fees.
When asked if O'Leary had any other records of financial disclosures of conflict of interest statements on file, Village CFO John Roskos stated the following:
"Mr. O'Leary is a W2 employee of the Village; no other records exist other than his employee contract, which you will find attached. There are no other legal services contracts/agreements or any of the other records requested."
