Does he have any choice?
The gagging of Portune continues. The latest development is paragraph 2G of the seven-page joint defense agreement signed in late June by the Cincinnati Bengals and the county. It's a contract to share the legal expense of fighting a $14 million tax claim by the Internal Revenue Service (IRS).
The IRS believes the Bengals owe taxes and late penalties from the sale of almost $26 million in Paul Brown Stadium seat licenses. The county managed the program nearly until its end, but the money counted as part of the Bengals' contribution toward building the stadium. But a lease amendment in mid-2000 -- before Portune was elected -- shifted responsibility for these potential tax payments to the county.
Portune said in late June there are too many conflicts of interest between the Bengals and the prosecutor's office for the defense agreement to be in the best interest of Hamilton County taxpayers. Now Portune might not be even able to say that much, because the defense agreement specifies that both parties should only make "public comments ... that are truthful and supportive" of the defense's position.
A call to the Hamilton County Prosecutor's Office to clarify what that paragraph could mean wasn't returned.
By Ohio law, the prosecutor represents the board of county commissioners in civil litigation.
The first gagging of Portune, the lone Democrat on the three-person board, came June 5, in a resolution by Commissioner Tom Neyer, Jr., which passed with the support of Commissioner John Dowlin.
The resolution created a policy of not releasing documents labeled "privileged" by the prosecutor's office unless two commissioners vote to do so. If that sounds reasonable, bear in mind that the prosecutor labels nearly all its communications with the commissioners "privileged."
Since his election in 2000, Portune has run a very open office, freely handing out documents and information to reporters and citizens, even ones labeled "privileged." He believes it won't hurt the county and it will help the public to release most of the information the Republican-dominated county government has traditionally kept secret.
Recently Portune's release of documents relating to the city/county effort to lure Convergys Corp. to the riverfront riled the prosecutor's office, leading to the Neyer resolution. Portune and county prosecutors have also butted heads over the extensive use of closed-door meetings to conduct the county's business and over the prosecution of photographer Thomas Condon (see Open and Shut issue of June 13-19).
After the Neyer resolution passed, Portune put together a list of questions it raises. Who decides what communications are privileged, and what penalties are there for disobeying the rule?
The ongoing disagreements between Portune and the prosecutor's office came up during a July 17 meeting -- behind closed doors, of course -- between the commissioners and prosecutors, according to Dowlin.
"It was all about procedure," he says. "It was a real venting on each side."
Portune is reluctant to discuss the meeting, but he says he's no longer worried about the prosecutor's office taking some sort of legal action against him for doing his job as he sees fit.
"I don't think there's any risk of that at all today," he says.
Portune says it's still true, however, the Neyer resolution and joint defense agreement are keeping him from doing and saying things he otherwise would as a county commissioner. But he believes another commissioner will vote to forward his questions to the prosecutor's office.
"I believe that some or all of the questions will be asked by a majority of the board," Portune says. "It is an important issue that needs to get resolved."
But Portune says he isn't dealing with these issues passively.
"I have every intention of fulfilling my duties as an independently elected member of the board, representing the citizens of Hamilton County," he says. "That includes resisting efforts that wold have the design or the effect of infringing on that ability."
Portune pointed to Section 1985 of the U.S. Code, which deals with public officials' right to do their jobs without intimidation, threats or force designed to keep them from doing so.
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