City prosecutor retired after clash with Winburn

A public spat with a council member helped quietly end the 35-year career of Cincinnati Prosecutor Charlie Rubenstein but The Enquirer discovered his "retirement" includes Rubenstein being paid for more than four months without working and both sides agreeing not to bad-mouth each other publicly.

"If asked," the Jan. 16, 2015, Release and Settlement Agreement between Rubenstein and the city notes, "the parties shall state that they have amicably resolved any differences and that Mr. Rubenstein is retired from the City of Cincinnati."

Despite that clause, it wasn't amicable.

"I think it's unusual to have the Release and Settlement Agreement for an employee who is retiring," said Jerry Newfarmer, a former Cincinnati City Manager and now head of Management Partners, a government consulting firm.

The Enquirer has written before about Rubenstein's battles with council member Charlie Winburn. They led to behind-the-scene negotiations that in January ended Rubenstein's city career and produced an agreement city officials chose to sign. It has an odd requirement that City Manager Harry Black and Solicitor Paula Boggs Muething agree they won't talk about the issue – even though all involved are public employees paid with public money.

The Enquirer filed an Open Records request to obtain the agreement and asked city officials several times to talk about it but they refused except to wish Rubenstein well.

"I think public officials have an obligation to explain the public actions they make. It's very convenient to gag yourself," said John Curp, a Cincinnati attorney who served as Cincinnati Solicitor – and Rubenstein's boss – from 2008 until Mayor John Cranley took office in January 2014 and replaced Curp.

Rubenstein, 59, left his job Jan. 16. He is using accrued sick time until his June 1 retirement but the city's policy notes he can cash in a maximum of 600 hours. Using a 40-hour work week, it's 760 hours between Jan. 16 and June 1, time and money that also increases Rubenstein's city pension. City officials wouldn't explain why Rubenstein is given credit and paid for working until June 1 for what appears to be 160 hours in excess of what the city policy allows.

Rubenstein, who didn't returned repeated calls, has been controversial. In the last year, he:

•Irked the Hamilton County Public Defender's office with his my-way-or-no-way tactics, and;

•Publicly disagreed with Winburn over the politician's push to erase minor marijuana convictions from criminal records.

Candy in pants case draws attention

Rubenstein's battle with the Public Defender's office made news last summer after a man was arrested for stuffing $200 in candy down his pants. The man's attorney took the case to trial. Scott Nazzarine, an attorney for the Hamilton County Public Defender, obtained the video of the incident from the convenience store where the man was arrested. Neither police nor city prosecutors got copies of the video before it was erased by the store.

When the case went to trial, Rubenstein asked Nazzarine for the video. Having a duty to protect his client's rights, including the right not to incriminate himself, Nazzarine refused. Rubenstein responded by getting a judge to sign a search warrant for the entire Public Defender's office, potentially forcing them to allow prosecutors access to records about all criminal cases they were defending.

"I was livid about what happened," Winburn said of the incident which The Enquirer reported. "After your article, everybody at City Hall was talking about it."

Public Defender Ray Faller objected loudly. The city responded by adopting "Guidelines for Obtaining Evidence Relating to Representation of Clients in Municipal Prosecution Cases." Cranley wrote Faller a letter that effectively noted Faller was correct – and Rubenstein was wrong.

Winburn called for Rubenstein to be investigated by the Ohio Supreme Court for a possible "violation of professional conduct" and suggested in October that the U.S. Department of Justice investigate Rubenstein's practices.

Charlies clash over pot cases

Winburn also fought with Rubenstein over the council member's attempt to help erase criminal records for those with minor marijuana convictions. Winburn's goal for expunging those records was, he said, "to get them jobs, reunite them with their families."

Rubenstein, though, thought it improper for the city to pass an ordinance telling a state judge to expunge a crime.

"He (Rubenstein) was adamant we couldn't do it," Winburn said.

In 2006, City Council – Winburn wasn't on that council – strengthened the city's marijuana laws. It adopted an ordinance that made possessing even a small amount of marijuana a crime that couldn't be erased from a criminal record. That meant those convicted under it couldn't get that conviction erased, effectively making it harder for them to get jobs.

Prior to approaching Rubenstein about the pot expungement program, Winburn talked about it with a felony court judge, a law firm, Hamilton County Public Defender's lawyers and Rubenstein's boss. All, Winburn said, told him the program was legal.

"When his supervisors ruled in my favor, I think that created a rift," Winburn said.

At the time, Winburn was running as the Republican candidate for the 9th Ohio Senate seat, which he lost, but said his marijuana expungement program wasn't related to his political ambitions.

"I won the issue. (Rubenstein) lost the issue," Winburn said.

City manager won't talk

City Manager Harry Black refused to speak to The Enquirer about Rubenstein's retirement but issued a statement that mirrored the agreement: "The settlement agreement contains standard waiver, release, and non-disparagement language. The City and Mr. Rubenstein have amicably resolved any differences and Mr. Rubenstein is retired from the City."

Not so, Curp countered, saying the language is standard for unionized employees. Rubenstein wasn't.

"This is not a standard retirement document," Curp said of Rubenstein's Release and Settlement Agreement. "This is not unusual for employees who have been separated after disputes with the city" suggesting Rubenstein was separated, not retired.

The agreement calls for Rubenstein to officially apply for retirement June 1, more than five months after the Jan. 16 agreement.

Rubenstein, Curp added, was a solid prosecutor who often was unfairly criticized for being too rigid, but who had a high conviction rate.

"Charlie was (perceived) throughout the state of Ohio as one of the top criminal prosecutors," Curp said.

Winburn, though, has been a longtime proponent of eliminating the city prosecutor office and letting the Hamilton County prosecutor handle city criminal cases. Winburn believes eliminating the city's prosecution office will save taxpayers' money.

Retired Rubenstein

Charlie Rubenstein ended his city of Cincinnati employment Jan. 16:

•His annual salary was $127,308;

•Worked worked in Solicitor's office since 1979;

•Cincinnati Prosecutor since 2011;

•The Cincinnati Solicitor's office has two departments. One handles civil and governmental law issues for the city. The other prosecutes misdemeanor charges like DUI and speeding;

•The Hamilton County Prosecutor's office prosecutes felonies countywide and misdemeanors for jurisdictions that don't prosecute their own misdemeanors.