State auditor recommends 'dereliction of duty' charge for Gang of Five

Sharon Coolidge | Cincinnati Enquirer

Show Caption Hide Caption Cincinnati City Council texting case: Auditor recommends prosecution Prosecutor Joe Deters holds a press conference on Thursday, Dec. 19, 2019 to announce that the Ohio Auditor has referred five council members for prosecution on a misdemeanor crime of dereliction of duty for violating Ohio's Open Meeting Act when they made decisions via text messages.

Five members of Cincinnati City Council who violated Ohio's Open Meeting Act when they made decisions via text messages – and cost taxpayers more than $100,000 – could be in more trouble.

Ohio Auditor Keith Faber looked at the matter and has referred five council members for prosecution on a misdemeanor crime of dereliction of duty, Hamilton County Prosecutor Joe Deters announced.

The members are: P.G. Sittenfeld, Wendell Young, Greg Landsman, Chris Seelbach and Tamaya Dennard.

The recommendation is based on a review of text messages that show the five members, who make up a majority of the nine-member council, illegally discussed city business between January 19, 2018 and March 24, 2018.

That is a violation of the state's Open Meetings Act, which the five admitted in a civil court case earlier this year.

Faber, in his recommendation for prosecution, wrote the council members were "public servants serving as elected officials of a political subdivision, recklessly failed to perform a duty expressly imposed by law with respect to the public servant's office, or recklessly did an act expressly forbidden by law with respect to the public servant's office, to wit: took official action and conducted deliberations upon official business by a majority of the public body, outside of the requirements of the City of Cincinnati charter and the Open Meetings Act, which requires such actions to be done only in open meetings..."

A misdemeanor crime would typically be handled by the City Solicitor Paula Boggs Muething, but because the council members are her clients, she has a conflict of interest.

So Deters said he would take the case, but since he also has a conflict, he would turn it over to a special prosecutor.

Faber can only recommend charges. What happens next is up to the special prosecutor, Deters said. Pat Hanley, a Cincinnati-based attorney who is a former prosecutor at the U.S. Attorney's Office, will serve as special prosecutor.

Dereliction of duty is a second-degree misdemeanor, punishable with up to 90 days in jail and a $750 fine.

None of the five could be reached for comment.

Deters said he personally believes the group texts rise to the level of dereliction of duty.

"I think there is a probability of that," Deters said. "I think that is an assessment Pat Hanley has to make."

Still, Deters looked at the matter back in March when the case was unfolding, and decided to leave the matter in the hands of the judge in an earlier civil suit, Hamilton County Common Plea Judge Robert Ruehlman.

"It was the decision, at least based on evidence we had at the time, that Judge Ruehlman was going to take care of it," Deters said.

Ruehlman chastised the group, but didn't go beyond that.

Deters said he believes the council members were "well-intended, but there are rules you have to abide by. They clearly violated the sunshine law."

Faber and Deters are Republican. The council members all Democrats.

The Hamilton County Democratic Party was swift in its rebuke of the audit, calling the move political.

A statement from the party said: "Local elected Republican officials put this issue to bed nearly a year ago, and now the Republican state auditor – who is Trump's re-election campaign co-chair and was a central player in the statewide ECOT charter school corruption scandal – is trying to make a name for himself in Cincinnati. Hamilton County residents care about good-paying jobs and infrastructure improvements, not hyper-partisan shenanigans. It's time to move on."

Former Cincinnati Mayor Charlie Luken, a Democrat, weighed in on Twitter, saying, "Didn’t the criminal justice system look at this for a long, long time here in Hamilton County? Seems the Auditor, Faber, is seeking to make some political hay and stick the residents of Cincinnati with a long, loud political fight that will result in nothing."

Hamilton County Republican Party Chairman Alex Triantafilou said the matter is serious.

"This is further evidence of the chaos we see at City Hall and Judge Ruehlman was right, this whole group needs to go," Triantafilou said. "On criminal charges, I'll take a wait-and-see approach to what the evidence is and what the law says."

Last March, after a civil suit over the texts was settled, Faber said he was investigating the council members as part of the city's routine audit.

The decision to examine the council members' actions followed a court settlement in which the council members agreed they violated the law and would pay $101,000. It was the result of a months-long saga over the group's text messages that led a judge to release 10 months worth of their texts, revealing conversations involving city business, a power struggle with the mayor and snarky asides about politicians and citizens.

During the settlement hearing, Ruehlman said, "I really believe the five City Council members should resign. No city voter should ever vote for them again.

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Muething, in a memo to City Manager Patrick Duhaney and Mayor John Cranley, explained how the case unfolded.

She said an investigator with the state auditor's office contacted her in early December about a referral on a misdemeanor charge that was forthcoming.

Because of the conflict she reached out to other jurisdictions for assistance, including Columbus, Dayton, Toledo, Oregon, Montgomery County, Akron and Upper Arlington. All declined to help.

After that, Muething reached out to Deters and together they decided a special prosecutor was the best option, she wrote.

Attorney Brian Shrive, the lawyer who represented the citizen who brought the civil case, said "It was good to see that Auditor Faber has taken this issue seriously. We look forward to a just result. "