UPDATED AT 11:15 AM
(SEE EMAIL FROM SCPR READER)
CRAIG T. CONLEY
February 27, 2014
Thank you for today's blog reviewing the Cornwell testimony at the Balas-Bratton protest hearing before the Stark County Board of Elections.
Before today's blog, I was not sure what to think of Cornwell's testimony.
On the one hand, he was obviously biased and
argumentative in favor of Maier in spite of his claims of neutrality in favor of "the law".
On the other hand, he seemed somewhat credible in that he believed in what he was saying.
It is enlightening to find out about his prior amicus briefs asking the Supreme Court for strict interpretations of ORC 301.01 and as well as the fact that the original statute was modified for tighter qualification guidelines is enlightening.
It is indeed a flip/flop.
You also mention that you hope that Braden and Cline will note the Craig case when transmitting the BOE record to the Ohio Secy of State.
This raises a question. BOE member Ferruccio handled all objections and was clearly the sole "referee" in the BOE hearing.
Why didn't member Cline, an attorney, offer any input on any of the objections? In particular, I note Cornwell's unwillingness to answer "yes or no" questions with a clear yes or no. Would it have been out of procedural order for Cline to interrupt and order Cornwell to answer clearly "yes" or "no"??
It seems to be a "trademark" of anything touched by George T. Maier attorney Thomas L. Rosenberg (of Roetzel and Andress/Columbus).
Okay, I'll bite.
What "seems to be a 'trademark' of ... Rosenberg?"
Depending how it plays in his perceived interest of his client, he shows that he can take a letter or a statute and likely anything else relevant to a legal case and take contradictory positions.
A classic case of his doing so can be seen on this (LINK) to prior SCPR blog. In the cited blog, Rosenberg was going to "out of the goodness of his civic minded heart" represent Stark County taxpayers to retrieve from interim Sheriff Tim Swanson the $20,000 that Stark County's commissioners agreed to pay to Rosenberg and his law firm for his having represented Maier in a quo warranto filed February 12, 2013 by Swanson.
The presumption was that Maier was going to win.
But, of course, in hindsight we now know that "something funny happened on the way out of the court." Maier lost and was ousted as the Stark County Democratic Party Central Committee (SCDP-CC) appointed sheriff by the Ohio Supreme Court on November 6, 2013
Swanson winning did not stop Rosenberg from writing the commissioners and demanding that the commissioners not reimburse Swanson (some $33,800) for his legal expenses in getting Maier thrown out.
Maybe he did and maybe he didn't go about it the right way to demand that the commissioners pay his legal fees on the basis of his having won, but Swanson is about to have the last laugh on Rosenberg.
There is a scheme of Ohio statutory law in existence that makes a quo warranto loser "personally liable" to the winner. And, Swanson has retained legal counsel and had him file a lawsuit against Maier (LINK).
Now what do you suppose Maier would rather happen?
Pay Swanson his $33,800 as on a "moral claim" basis or have Maier have to pay out of his personal funds nearly $90,000 in wages and benefits that Swanson missed out on because Maier usurped his office?
How is Rosenberg explaining that one to George T. Maier.
Rosenberg seems to have developed having "one's foot firmly implanted in one's mouth" into an art form.
On February 11, the SCPR wrote a blog describing Rosenberg's allegation in a November 13, 2013 letter to Stark County prosecutor John Ferrero that Lt. Louis Darrow, if he were to pursue a second appointment (Maier's first appointment having been invalidated) of the SCDP-CC on December 11, 2013, would - as a classified employee - be violating ORC 124.57.
George Maier by his own hand on December 5, 2013 wrote Harrison County Sheriff Ronald J. Myers (his "friend forever") telling him as a classified employee, he had to resign so he could seek the appointment also.
Well, on November 26, 2013 Maier had filed an application with the Stark County Court of Common Pleas for the SCDP-CC appointment.
Presumably, Maier was acting under the advice of Rosenberg.
One standard for Darrow; another for Maier?
Isn't that terrific that a man who would be Stark County sheriff apparently has two standards in legal accountability?
Now we get to the point of this blog.
Rosenberg appears to be at it again.
This time it is through his expert witness Robert Cornwell.
Cornwell has been the chief executive officer of the Ohio Buckeye Sheriffs' Association (BSSA) since 1983.
In 1987, he, as a BSSA lobbyist, got state Representative Ron Gerberry (of the Youngstown area) to guide a bill through the Ohio General Assembly which came to be known as Ohio Revised Code Section 311.01.
In 1981, (served one term through 1984) Stark Countians had elected Republican insurance man Robert C. Berens as Stark County sheriff. Needless to say, most Stark Countians thought that Berens was a disaster. But there was a "silver lining" to his being elected. It was obvious to one and all that there needed to be standards for one to stand for election as a county sheriff. Hence, the birth of 311.01.
Well, now, it seems that the "mere technicalities" of ORC 311.01 are a huge barrier to Democrat George T. Maier ever becoming sheriff of Stark County in the sense of being elected to fill the term of Mike McDonald, who was unable to take office on January 7, 2013 (having been elected in November, 2012), because of illness which cost him his life on February 22, 2013.
At least such is what George calls them, "technicalities" that is.
Well for purposes of this blog, let's take a look at one of the "technicalities."
ORC 311.01(B)(9)(a) is the particular technicality we will delve into.in this blog, to wit:
311.01 Election and qualifications of sheriff.
(A) A sheriff shall be elected quadrennially in each county. A sheriff shall hold office for a term of four years, beginning on the first Monday of January next after the sheriff's election.
(B) Except as otherwise provided in this section, no person is eligible to be a candidate for sheriff, and no person shall be elected or appointed to the office of sheriff, unless that person meets all of the following requirements:
(9) The person meets at least one of the following conditions:
(a) Has at least two years of supervisory experience as a peace officer at the rank of corporal or above, or has been appointed pursuant to section 5503.01 of the Revised Code and served at the rank of sergeant or above, in the five-year period ending immediately prior to the qualification date; (emphasis added by the SCPR)
The enlarged language is one of several points of argument between Maier's attorney (Rosenberg) and the protester (Cynthia Balas-Bratton, represented by Craig T. Conley) to Maier's candidacy as Stark County sheriff
More specifically the argument centers on whether or not one has to have been within the last five years (going back from February 4, 2014) a "corporal or above" for two years within said five years.
And who better than to bring in as an "expert" witness than Robert Cornwell of BSSA, no?
After having seen him:
- testify trying to make having the losing position in Swanson v. Maier, quo warranto appear to make him some kind of authority, and
- after having seen where his BSSA, in a number of pre-Balas Bratton versus Maier cases, asserted the Balas-Bratton position; it appears that Rosenberg, once again, screwed up "big-time" in bringing Cornwell in to testify at the Balas-Bratton "protest" hearing of February 21st.
- SCPR Note: See video and a SCPR summary of Cornwell's Rosenberg-led examination at this LINK.
First, look at Cornwell's examination by Balas-Bratton's attorney Craig T.
The "key" points of the Conley cross-examination (of course, as interpreted by the SCPR) for purposes of this blog include:
- that Cornwell attempts to present himself as an "impartial witness" devoted to having anyone who applying ORC 311.01(B)(9)(a) to do so according "the way it should be,"
- the fact of the matter was that the Maier side of the Balas-Bratton protest was the side that asked that BSSA allow Cornwell to come and testify,
- BSSA and filed an amicus brief in Swanson v. Maier, quo warranto (which Maier lost)
- In the lead up to BSSA's attorney preparing the brief, Cornwell had multiple conversations with Maier attorney Rosenberg and which conversations included:
- past cases in which BSSA had taken positions on the various provisions of 311.01,
- that BSSA historically has asked the Supreme Court "to interpret the statute as it reads,"
- incredibly denies that the Maier amicus was filed in support of Maier,
- however, he admits that the amicus argues that Maier meets all the qualifications required by 311.01,
- resists Conley's point that the amicus was a losing proposition with the Supreme Court but ultimately under Conley persistence admits that the Supreme Court ruled that Maier did not meet the qualification under 311.01 of being "full time,"
- resists Conley's point that he holds himself as being an expert on 311.01 and yet he was wrong in Swanson v. Maier, quo warranto,
- agrees with Conley that a former version of 311.01(B)(9)(a):
- allowed for two years of supervision or its equivalent,
- did not require that the supervisor be a corporal or above (with no qualifying language of "equivalency,
- spars (which the SCPR undermines his implicit claim of objectivity) with Conley over whether or not being assistant Ohio Director of Public Safety (as Maier was in the Strickland administration) qualifies as being the "equivalent" of being a "corporal or above,"
The SCPR believes that there may be some connection between BSSA and the Maiers through state Representative Ron Gerberry who at the time the original 311.01 was passed, (1987) worked closely with BSSA. The Report has known Maier brother Johnnie A. Maier, Jr since the days he was state representative from a section of Stark County and who was one of his best legislative friends: Ron Gerberry!
Cornwell brought up the fact that Tim Swanson was president of BSSA (2008) and that he worked well with Swanson and thereby wished to imply that it is believable to think that BSSA is not biased toward the Maiers' interest.
But the SCPR is not buying.
The Report will be working to establish a tie between Cornwell, BSSA, the Maiers and Representative Gerberry as being "the key" as to why BSSA has come out so strong in its Swanson v. Maier, quo warranto amicus for Maier.
Many times, it is not so much that people lie about this or that item being asked about, but the "sin" comes in in "what they omit."
The SCPR believes that such may be the case with Cornwell.
It will interesting to see whether or not the SCPR can uncover a BSSA, Cornwell, the Maiers, and Gerberry connection.
In addition to potential BSSA documentable bias of a BSSA/Cornwell/Maier relationship, there is the matter that it appears to the SCPR that BSSA and its executive director Cornwell has taken legal positions, specifically, on ORC 311.01(B)(9)(a) [see above], contrary to what its position was in Swanson v. Maier, quo warranto, and is on the Balas-Bratton "protest" of George T. Maier's candidacy before the Stark County Board of Elections.
Unless the SCPR has missed something in Cornwell's testimony in Balas-Bratton v. Maier last Friday, Cornwell does not in that testimony reveal that BSSA has "flip-flopped" on the issue.
The leading case in which BSSA filed an amicus before the Ohio Supreme Court was:
Cornwell does not mention Craig?
Well, how about the fact that BSSA submitted an amicus in Craig that shows its position to be exactly the opposite from that BSSA expressed in Swanson v. Maier!
From the BSSA amicus brief in Craig:
Reed admitted that he had not completed two years of post secondary education or its equivalent and that he has never served in the state highway patrol Rather, he sought to qualify as a candidate for sheriff on the theoiy that his experience with a private security firm (Cincinnati Special Police LLC) (LLC) was equivalent to "two years of supervisory experience as a peace officer at the rank of corporal or above/' even though Reed and respondent admit that experience with this LLC does not constitute experience as a peace officer. This "liberal construction" was accepted by the Board "in favor of placing candidates on the ballot" (Response, Third Defense.)
Such statutory interpretation [SCPR Note: i.e. "equivalency"] may have been permissible under prior versions of Ohio Revised Code §311.01(B)(9), as interpreted in State ex. rel Hawkins v. Pickaway Cty. Bd of Elections (1996), 75 Ohio St 275, but, in response to Hawkins the statute was amended to require supervisory experience as a peace officer at the rank of corporal or above. The statute in its present form was then considered by this Court in State ex rel Wolfe v. Delaware Cty. Bd. of Elections (2000), 88 Ohio St 3d 182, wherein this Court found that there was no need to construe the meaning of the statute since it "expressly requires that the supervisory experience be *as a peace officer at the rank of corporal or above'." Id. at 185-86. (emphasis added by SCPR)
As far as the SCPR is concerned, it was outrageous for Cornwell under the apparent guidance of Maier attorney Thomas Rosenberg to have failed to bring the Craig decision (a case "on all fours" [an expression attorneys are familiar with] to the attention of the Stark County Board of Elections members hearing and deciding the Balas-Bratton "protest of the Maier Stark County sheriff candidacy.
Members Cline and Braden in transmitting the record to the Ohio secretary of state should cite the Craig case omission (and, of course the "contradictatory" BSSA Craig amicus brief from the BSSA (Cornwell) presentation last Friday.
And there are other cases in which BSSA had a contrary to Swanson v. Maier opinion (amicus briefs) that never found their way into the record of Balas Bratton v. Maier.
Those should be dug out and presented to the secretary of state, also.
Shame on BSSA and its chief executive officer Robert Cornwell for the glaring omissions.
And shame on Thomas L. Rosenberg for not bringing the foregoing referenced cases and briefs to the attention of the Stark County Board of Elections.
"Flip-flop" is too nice of an expression for what was done.
Stark Countians, even those who favor George Maier, should be outraged that a man who would be Stark's chief law enforcer would countenance such an outrage.
And maybe he doesn't?
The telling question has to be: Will he distance himself from the BSSA (Cornwell) presentation?
If he doesn't and does not do so immediately, then, as far as the SCPR is concerned, George T. Maier owns it!