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Judge Rejects COAST's Claim, Scolds Prosecutor

By Kevin Osborne · June 9th, 2010 · Porkopolis

Ronald Reagan once supposedly said the unwritten 11th commandment, at least as far as politics was concerned, was “Thou shalt not speak ill of another Republican.”

People of good conscience, however, know that simply isn’t true. Sometimes a person’s actions are so egregious or unethical that leaving them unchallenged would be detrimental. A person’s first duty isn’t to their party or nation, it’s to their own moral code. (Even Tea Partiers who ran in the GOP primary realize this.)

That must have been the thought going through Judge John D. Martin’s mind when he wrote the recent decision in a case before him involving the Hamilton County commissioners, Prosecutor Joe Deters and the Coalition Opposed to Additional Spending and Taxes (COAST).

The ruling stems from a lawsuit filed by Mark W. Miller, a COAST leader, alleging that county commissioners violated Ohio’s opening meeting laws when they held an executive session (read: closed-door) meeting to discuss an action taken by Deters.

COAST has practically made a cottage industry out of criticizing and suing the commission in recent years, ever since Democrats took control of the public body in 2006.

Martin’s June 3 ruling rejected Miller’s claim and called Deters “unprofessional,” to boot. But first things first.

To discuss Miller’s lawsuit, one must first remember the highly questionable action taken by Deters in October 2009. At that time, 12 Common Pleas Court judges agreed to hold a private meeting to consider Deters’ request that they fire an outside law firm used by the county commissioners since the late 1990s.

The outside firm (Vorys, Sater, Seymour and Pease) has represented the county on issues dealing with the construction of The Banks, a massive redevelopment project along the Ohio River on land between the Reds and Bengals stadiums. The project, expected to cost about $1 billion in public and private dollars, is the Greater Cincinnati region’s largest and highest-profile development and likely will take more than a decade to complete.

About $19 million has been spent for the firm’s services since that time. The money comes from stadium tax proceeds and not the county’s general operating fund.

When the law firm was first used nearly 13 years ago, Republicans filled all three seats on the Hamilton County Commission. Those commissioners believed attorneys with special expertise were needed to handle the complicated matters involved with purchasing the land and drafting agreements with the city of Cincinnati.

Frankly, commissioners didn’t think the Prosecutor’s Office — filled with novice attorneys who start out making about $35,000 annually, many of whom got their jobs as political favors — could adequately handle the task.

The Republican-controlled commission eventually formalized its relationship with the firm, dubbing it “special counsel,” in late 2002. Paperwork renewing the arrangement has been routinely signed over the years by Deters and filed with the court.

Once Democrats took control and began making cuts in various county budgets, including $15 million from the Prosecutor’s Office, Deters decided to play hardball. The prosecutor said the outside firm’s expense wasn’t needed at a time when the county is facing budget deficits. (It’s also noteworthy that once Republicans lost control of the commission, only then did the party begin opposing The Banks project.)

Deters — a Republican who was the longtime GOP chairman — cited a provision in Ohio law that he alleged allowed any county prosecutor to ask judges to fire the outside firm if the cost exceeded the prosecutor’s salary in any given year. Well, not exactly.

What Joltin’ Joe failed to mention is the salary provision applies only to when the firm is hired; there’s no specific provision for terminating the relationship. Also, Deters willingly cut his prosecutor’s salary in half by moonlighting in private practice with Stan Chesley. That move made it easier to claim the firm exceeded the limit.

As Mr. Rogers might ask, “Children, can you say ‘stacking the deck?’ ”

Betraying his politically motivated intentions, Deters didn’t even notify commissioners about the request.

The two Democratic commissioners, David Pepper and Todd Portune, filed a complaint with the Ohio Supreme Court to have the firing rescinded. So far, the court has sided with commissioners on various motions but hasn’t yet made a final decision.

Before filing the complaint, Pepper and Portune held an executive session to decide to serve as the county’s attorneys themselves, free of charge. That’s when Miller filed his suit, claiming Deters should’ve attended the session because he technically was the county’s attorney until the decision was made.

Martin, a Republican who is a retired Fairfield County Common Pleas judge, disagreed. To claim Deters should attend is absurd, Martin ruled.

“One thing is clear above all else — no legislative panel, however gifted in foresight, could have anticipated and provided for the circumstances of this case when they wrote up (the state law),” the judge wrote. “No one could have anticipated the lack of professionalism on the part of the county prosecutor in turning on his statutory client, the board of county commissioners, and proceeding against them in the common pleas court of the county in the summarily removal of their special counsel for an apparently well managed and hugely expensive project for the county.”

Martin continued, “The board was left with no counsel to appear in executive session with, as provided by the exception, and with no alternative but to be their own attorneys if they were to continue to exercise their duties and functions as county commissioners.”

If Deters didn’t like the commissioners holding an executive session without him or someone from his office present, Deters has no one to blame but himself, the judge added.

“An executive session is permissible when litigation is imminent and the commissioners knew this to be very probably likely,” Martin wrote. “The session must be with the public body’s attorney. It is clear there was no such statutory attorney due to the prosecutor’s self-created conflict of interest.”

COAST already has said it will appeal Martin’s decision. “Miller and COAST will appeal this and waste more time and taxpayer money,” Pepper replied.

Meanwhile, Deters’ response was predictable: He told The Enquirer, “It would be nice if the judge knew what the law was.”

For a moment, let’s forget the fact that Martin was hand-picked for this case by Ohio Chief Justice Thomas Moyer, a Republican who was well-respected before his recent death.

Instead, let’s remember what Deters said when commissioners filed their Supreme Court complaint. He said Portune — also an attorney — didn’t understand the law.

Sorry, Mr. Deters. It’s becoming obvious that you don’t know the law.


PORKOPOLIS TIP LINES: 513-665-4700 (ext. 147) or pork@citybeat.com


 
 
 
 

 

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