GEORGE MAIER TO FACE LEGAL/ADMINISTRATIVE ACTIONS 14, 15 & 16?

Now that the Ohio Supreme Court has decided that George T. Maier is going to be on the May 6th ballot as the Democratic candidate for Stark County sheriff, he is likely thinking that the legal wars have come to an end and the only hurdle he has to clear is defeating Republican Larry Dordea in the November election.

How about a federal court action asking the federal courts to intervene in the election on the grounds that Stark Board of Election protestor Cynthia Balas-Bratton was denied "due process of law" on the allegations that Democratic BOE member Deametrious St. John had predetermined his vote on the matter of Maier's qualification and that therefore his participation in the February 21, 2014 hearing on the protest violated Balas-Bratton U.S. Constitution rights?

How about a second interim Sheriff Tim Swanson quo warranto on the issue of Maier qualifying under ORC 311.01(B)(9)(a)  - being a 'fulltime' peace officer - which the Supreme Court found he was not on the basis of his having served as a deputy sheriff for his "friend forever" (per Myers' deposition in Swanson v. Maier, quo warranto), namely; Sheriff Ronald J. Myers of Harrison County?

How about - if a second quo warranto is successful - a third quo warranto filed by Larry Dordea should he lose the general election in November?

Those, readers of the SCPR, are the possibilities of further challenges to Maier notwithstanding yesterday's decision not only upholding Republican Secretary of State Jon Husted's tie-braking vote of March 7th siding with the Democratic BOE members in allowing Maier on the ballot but also closing off a quo warranto challenge to Maier for not meeting the criteria of ORC 311.01(B)(9)(a) [a supervisor at corporal or above for two years].

The Report is told by Craig Conley (Balas Bratton's protest attorney and Tim Swanson's attorney in a civil suit to recover lost wages and benefits)  that George T. Maier was not properly sworn in as deputy sheriff in Harrison County for the period November 8, 2013 through December 5, 2013 that he worked once again for his "friend forever."

So?  A mere technicality, no?

Not according to Conley.

He says that the Ohio Constitution require swearing in and if an official is not sworn in, then if is as if the official was never a public official to the position to which appointed.

Conley says that had Maier been sworn in his November/December stint in Harrison County would have cut off any additional challenge on quo warrantos to Maier's right to be sheriff.

Hmm, no?

In the SCPR's conversation with Conley post-denial of the Balas-Bratton Writ of Prohibition, he was not interested in rehashing the rationale of the decision other than to say that he disagrees with it.

The Report has picked up on an expression that Conley often uses, to wit:  "The Supreme Court doesn't have to be correct [in its decision], it just has to be the Supreme Court."

But it was obvious to The Report that he thinks that Swanson and Balas-Bratton have merely been sidetracked on the respective tracks and that they may well wish to pursue further legal action.

And Conley is game to represent them "pro bono" (i.e. without charge "as a public service")

Conley sounded to the SCPR like someone not at all inclined to counsel his clients to quietly slink away.

After hearing the disappointing news of yesterday Supreme Court decision, Conley, if anything, was fired up and ready to continue the "all out 'legal' warfare" George T. Maier has been besieged with.

On March 11, staunch Maier ally Stark County Democratic Party chairman Randy Gonzalez (may The Report say it) "whined" about George's legal hassles in a letter addressed to the Stark County commissioners thusly:

In closing, I would like to point out that 13 legal and administrative actions have been undertaken regarding the position of the Stark County Sheriff, none of them brought forth by Sheriff George Maier. He has taken each of these head on while continuing to make the safety of the citizens of Stark County his top priority. He deserves, no he has earned the opportunity to face the voters, and the Stark citizens deserve this final legal challenge to be fair, where both sides have legal counsel vigorously representing their client's case.

In the letter (which the SCPR publishes in full at the end of this blog), Gonzalez  wherein he is pushing for the commissioners to appoint Don McTigue (a Columbus attorney unnamed in the letter) to be hired by the commissioners (at $8,000 [also not specifically pointed out in the letter])

But the commissioners (Creighton and Regula) refused on March 13th to join Commissioner Bernabei in his desire to go along with the Dems' McTigue request.

In a March 14th e-mail to the commissioners (see the full text of the e-mail at the end of this blog), Gonzalez does what he does best, he bellyaches about how unfair he thought it was that the commissioners would not take $8,000 of Stark County taxpayer money to hire Don McTigue to advocate for the Stark County Democratic Party BOE position.

He even accuses Commissioners Janet Creighton and Richard Regula of voting on a partisan basis.

Hmm?

The Report's recollection is that Commissioners Creighton and Regula both said that they were not going to put $8,000 more of taxpayer money in the the legal contests on whether or not George T. Maier is qualified to be sheriff.

Back in March of 2013, the commissioners did authorize and, eventually, actually paid $20,000 to Thomas L. Rosenberg of Roetzel & Andress (Columbus Branch) to represent Maier in his losing effort in Swanson's February 12, 2013 filed quo warranto which resulted in Maier's ouster as sheriff on November 6th.

Craig Conley went to great pains to examine the billings that Rosenberg made against the $20,000 set aside and raised questions as to why the commissioners paid quite of number of the line items on the billings.

It is pretty obvious that the commissioners did not do their "due diligence" in making sure that the line items on the billings were ones that Stark County taxpayers ought to be footing the bill for.

To the SCPR, such is out-of-character for the commissioners.

It could be that they decided they were going to pay $20,000 for whatever and that would be it.  However, they are dealing with taxpayer money and are not entitled to adopt such an attitude.

Rosenberg did ask for more money but was refused by the commissioners.

Apparently, Gonzalez did not hear what the commissioners Creighton and Regula said (i.e. it is a money thing) in refusing the Democrat BOE members on McTigue being hired on the Balas-Bratton Writ of Prohibition case.

Could it be that Chairman Gonzalez cannot get his facts straight?

He may believe the Creighton/Regula votes were a political partisanship thing.

But Creighton and Regula did not say or otherwise indicate that their "no" on hiring McTigue vote was because they are Republicans and George T. Maier is a Democrat.

While The Report is on the "fact" thing which is what Gonzalez whines about when someone like the SCPR sees things differently than he does, let's look at another thing in the e-mail that The Report does not think Gonzalez got right is his statement:

Billy Sherer, Jr. (the replacement for St. John whose term expired on February 28, 2013) was present. 

Maybe the SCPR missed something, but when did Billy Sherer, Jr ask to address the commissioners at the meeting in question?

And why would Sherer be brought in as the spokesman for the Stark Dems BOE members anyway?  St. John and Sam Ferruccio, Jr were the two who voted on the Democrat position on February 21st.

But to repeat.  Had Billy Sherer stood up in the meeting of the 13th and started speaking, the SCPR has no doubt that he would have been allowed to proceed.

At the end of the meeting as he was walking out, George Maier did speak.  He objected to Prosecutor Deborah Dawson being part of the executive session.

Nobody tried to cut him off.

The SCPR has enough experience with the current commissioners to be satisfied that Gonzalez's assertion is total nonsense.

As readers of the SCPR know, The Report attends nearly every Stark County commissioners meeting and never has The Report witnessed these commissioners ever, ever refusing to hear someone who wants to address them.

Absolutely, never!

And there is no three or five minute rule that many Stark County subdivision governments impose on their citizens.

They are generous to a fault in letting citizens vent themselves.

The Report does think that "Mr. Stickler for the Facts Gonzalez" has plenty of problems with facts himself and ought to address his shortcomings when his version of the facts do not square up with the public record.

The Report thinks Gonzalez is pretty much the clone of one William J. Healy, II (mayor of Canton) who is constantly spinning things the way he sees them and parlays them as being "the official facts" and, of course, abides no other take on what others think the facts are.

The SCPR suspects that Gonzalez has fed The Report a line on a number of occasions.

Given his bent to whine and bellyache, it could be that Gonzalez will go ballistic when he learns that his words "the Stark citizens deserve this final legal challenge to be fair' may be a bit premature.

The SCPR would be surprised if the Balas-Bratton Writ of Prohibition is the last litigation George T. Maier has to deal with.

Here are the Gonazlez communications in their entirety.

First, the letter:

3/11/2014

Dear Honorable Commissioner's, [sic]

I am writhing in regards to the question of appointment of legal counsel for the Stark County Board of Elections due to a conflict of interest held by the Stark County Prosecutor. There is a 3-2 decision denying the claim that Sheriff Maier is not qualified to be placed on the May primary ballot. As of now he will be on the ballot.

I'm confident you are all familiar with the history behind the case, so i will not waste your time reiterating specific details. The fact is we do have a decision to place Sheriff George Maier on the 2014 Primary Ballot and it is being challenged. The members of the Board of Elections need to stand behind that decision. The seriousness of the ramifications associated with this legal challenge and outcome will reverberate throughout our community for many years.

The Secretary of State's ruling affirmed the democratic right of allowing the people to choose who their next sheriff should be. I think we can all agree this is one of the most important and treasured privileges of our democracy. When choosing the council for the Board of Elections in this matter I hope you will consider the following factors.

This is not a neutral issue, the ruling was pro Maier and therefore an attorney with the most well versed background of the pertinent arguments for the Maier side of the case would be the most resourceful. This knowledge may also prove to be the most economical in the long run as this saga continues to unfold.

I strongly urge you to consider asking the Board of Elections, the true client in this case, for their recommendation. Any referral from the Prosecutor's office or retaining any attorney who has in the past, or Is employed by John Ferrero presents a severe conflict of interest. The last thing we need with over a year invested into this issue is any semblance of another conflict of interest, or any reason for further litigation.

In closing, I would like to point out that 13 legal and administrative actions have been undertaken regarding the position of the Stark County Sheriff, none of them brought forth by Sheriff George Maier. He has taken each of these head on while continuing to make the safety of the citizens of Stark County his top priority. He deserves, no he has earned the opportunity to face the voters, and the Stark SS citizens deserve this final legal challenge to be fair, where both sides have legal counsel vigorously representing their client's case.

Thank You for Your Consideration
Randy Gonzalez, Chairman

Second, the e-mail:

Thomas Bernabei

From:    Randy Gonzalez ...
To:    Janet Creighton ...Date:    3/14/20146:3:$ AM
CC:    ... 

After reading the Repository the facts there are not correct. Attorney McTigue was not at any meeting in reference to the Sheriff he he [sic] was asked to review the Sheriffs [sic] qualification and wrote a letter before he was appointed the second time. Others who reviewed Sheriff Mailers [sic] qualification were attorneys Schulman, Warren Price, Mike Thompson, and Steve Okey and all of them were present to answer question of the DCC at the second election of the Sheriff. The Sheriff also had his own legal counsel and later Attorney Ferruccio did an in depth review and also confirmed the qualification. Only after extensive review did Sheriff Maier apply [sic as to sentence structure] he certainly did not want what has taken place nor did I. The rule of law has been followed he is the Sheriff, [sic as to sentence structure] he is on the ballot and he is qualified.

The idea that McTigue should not be part of mis because he participated in the past is also flawed. Do you mink the AG is going to say "hey let's find someone neural [sic], someone who's background on the case is from the other side of the argument or better yet someone who doesn't even believe in his client is ruling.  [sic as to sentence structure] Hell no, he is going to find the person who can best support and believe in Mr Husted's ruling. Like it or not their  is a 3-2 ruling and as a Board I'm sure you understand that.

The majority of what has taken place in opposition to his qualification have come directly from the Prosecutor and his staff members one being a former Sheriff employee. [sic as to sentence structure]  Now Stark County has a longtime former assistaj it Prosecutor representing the BOE because he was free? There could have been a 3 or 4 to choose from that also could have been free if the BOE members would have signed off. That was not discussed publicly or any conversation from the client here, the BOE. There was a BOE member present at your meeting who also was not given the opportunity to speak.

Lastly we are all sick of tax dollars being spent. The Sheriff enough that he was willing to put his money where his mouth is. When I was asked to get the Democrats to endorse the sales tax we did, [sic as to sentence structure] help on the campaign we did we did, [sic] and in fact Kody did a great deal at no charge and when we appointed a Republican to a County office we did because the voters put him there. Now in return we get strict party line votes from the Board of Commissioners and the BOE. This decision was not fair, nor justified or properly publicly discussed. And by the way Commissioner Creighton [sic as to sentence structure] was the only one who acknowledged the letter l emailed you [sic as to sentence structure] did the others get it?

CONLEY ISSUES ULTIMATUM TO PROSECUTOR FERRERO. WILL FERRERO GIVE IN?

The SCPR has learned that civic activist and attorney Craig T. Conley sent a letter today to Stark County Prosecutor John Ferrero demanding that Ferrero file a lawsuit on bonds (2) and an insurance policy covering employee theft for the losses sustained by the Stark County treasury over the terms of Stark County Gary D. Zeigler's time in office.

Most ($2.46 million of nearly $3 million) but not all of the missing money was pilfered by former treasury Chief Deputy Vince Frustaci who pled guilty in the Northern District of the United States District Court on June 25, 2010; the day the federal government filed a Bill of Information against him.

Despite the appearance that the Frustaci generated loss has been known since Frustaci was fired, county officials still have not moved to recover the loss.  But for the efforts of Conley, it seems that Ferrero would not have moved to recover for taxpayers until after Frustaci is sentenced on September 7th.

The SCPR commends Attorney Conley for his pro bono (for the public good) work.  Stark Countians should be and are undoubtedly pleased with Conley's effort.  However, everyday citizens need to be contacting Prosecutor Ferrero with questions as to why he is resisting Conley's effort to get the recovery effort moving.

Here is a copy of Conley's letter to Ferrero.

BONDING & INSURANCE COMPANIES TO LESSEN BURDEN OF FRUSTACI THEFT ON STARK COUNTY TAXPAYERS? SEE COPY OF FERRERO LETTER RESPONDING TO PEREZ REQUEST THAT HE PURSUE BOND/INSURANCE MONIES

UPDATE:  07/28/2008

Today's "status conference" has been postponed.  The SCPR has been informed that Judge Marvin Shapiro will not be the judge to replace the recused Judge John Haas and that the Ohio Supreme Court is in the process of selecting another judge.

ORIGINAL POST

How much is Stark County's "Rainy Day Fund" going to get hit by the recent revelation that the missing funds from the Stark County treasury (about $3 million) of which $2.46 million is due to the admitted theft by former treasury Chief Deputy Vince Frustaci?

Probably about $2 million, but it could be significantly less.

How is that?

By the action of local citizen activist and attorney Craig Conley.

First of all, he is forcing the hand of Stark County Prosecutor John Ferrero on the matter of pursuing Stark County Treasurer Gary D. Zeigler for recovery from his personal/individual assets.

On July 2nd Conley filed a lawsuit on the behalf of Stark County taxpayers in the name of Bethlehem Township citizen Tom Marcelli against Stark County Treasurer Gary D. Zeigler in his personal/individual capacity (which means going after Zeigler's personal/real property holdings if a judgment is obtained).

Judge Haas of the Stark County Common Pleas Court has recused himself and the case has been taken up by visiting judge Marvin Shapiro of Summit County.  Shapiro retired from the Summit Court of Common Pleas on March 31, 2008.

Stark Countians will know more tomorrow the date and time for a "status conference" called by Judge Shapiro) about who (Prosecutor Ferrero or Attorney Conley) will be trying the case.

This the lawsuit that could help Stark County taxpayers dip below the $2 million loss (after bonds, insurance and other resources have been collected on). 

The SCPR believes this lawsuit should have been filed on June 25th (the date that the "Bill of Information" against Frustaci was filed in federal court and to which Frustaci pled guilty).

A legal fiction was circulating around government and political circles (which the SCPR believes was generated by the Stark County Prosecutor's Office) that the suit was premature because Frustaci had not yet been sentenced.

Conley says that such is not the case.

Second of all, Conley, on July 22nd, opened up a second front in forcing Prosecutor John Ferrero's hand on initiating action to collect on bonds (2 - $250,000 bonds) and an insurance policy ($500,000) that the county owns on the performance of Treasurer Zeigler in terms of any losses to county funds during his term(s) in office.

He wrote Stark County commissioners and Stark County Auditor Kim Perez that they had an obligation to pursue the bonds and insurance coverage on Zeigler and, in the case of insurance, on Frustaci.

Yesterday, Perez responded with a request to Ferrero to proceed.

Again, Ferrero's action, when taken, will be over a month after the filing of the federal Bill of Information against Frustaci.

Why so long?

The commissioners and Perez were asleep at the switch.  However, they were relying on Prosecutor Ferrero to inform them as to what their legal position is as well as the timetable action.  The SCPR believes that the problem with with the prosecutor's office.

Again, there were legal fictions being floated about on preconditions for filing.  First, the necessity of sentencing of Frustaci and secondly contract language in the bond/insurance policies requiring the passage of a certain period of time before suit could be filed.

Conley tells the SCPR that such is not the case.

Moreover, Conley tells The Report that if suit on the bonds/insurance is not filed by this Friday, he will be filing another suit in the name of Tom Marcelli as a surrogate for Stark County taxpayers.

If it were not for Craig T. Conley, the SCPR believes that the taxpayers of Stark County would be in jeopardy of losing their ability to recover from Zeigler on what Conley says is his "strict liability" for the missing funds (remember, nearly $3 million) which occurred during his terms in office.

 Last week Prosecutor Ferrero lambasted Conley in local media for "costing taxpayers money."  Quite to the contrary.   Conley has potentially saved taxpayers $2 million.  A public records request by Conley for records evidencing the costs that Ferrero claim has gone unproduced upon because?:  "the do not exist." Conley says he is being told by prosecutor officer personnel.

Attorney Craig T. Conley has been a prime mover for the Stark County taxpayers and is due a debt of gratitude from all of us!!!

 By the way here is a copy of Ferrero's response to Stark County Auditor Kim Perez's request for Ferrero to proceed on the bond/insurance collections.

THINGS APPEAR TO BE GETTING UGLY IN MARCELLI (CONLEY) VERSUS ZEIGLER (THOMPSON) LAWSUIT. ALSO, ZEIGLER ASKS STARK COUNTY TO PROVIDE LEGAL COUNSEL?

It appears to the SCPR that Bethlehem Township resident Tom Marcelli's lawsuit (on behalf of Stark County taxpayers) against Stark County Treasurer Gary Zeigler claiming, in the heart of the case, that by virtue of Zeigler being treasurer while former Chief Deputy Vince Frustaci stole $2.46 million in county funds; Zeigler is "strictly" liable to Stark Countians for any deficiencies in taxpayer funds after bonds, insurances and other resources have been collected on.

The Report has been particularly impressed with Marcelli's pro bono legal counsel Craig T. Conley.  In all conversations with Conley, The Report's take is that he is trying to keep any "personal" factor between Marcelli and Zeigler out of the lawsuit.

Personal?

For Stark Countians who have followed Tom Marcelli in local media at all, it is apparent that there is little love lost between Marcelli and various county officials, most notably, Zeigler, Stark County Auditor Kim Perez and Stark County Commissioner Todd Bosley.

So when Conley filed the "time is of the essence" (before Zeigler assets become unreachable) in Marcelli's name, the SCPR expected that eventually there would be sparks flying before long.

Now it appears to The Report that the expectation is becoming reality.

The Report believes that Stark County Common Pleas Judge Haas also understands the potential volatility of this Marcelli/Zeigler legal confrontation and took immediate steps to keep the lawsuit on a purely legal basis.

Haas engaged the filing immediately by having the parties into chambers soon after the July 2, 2010 filing to nudge the parties (through their attorneys Conley and Dennis Thompson [out of Akron]) to come to some basic accords like staying the proceedings for 90 days to give Stark County Prosecutor Ferrero an opportunity to assess whether or not he was going to take the case over, and the issuance of an injunction to set the parties into an agreed status pending the outcome of litigation.

As a consequence of the initial meeting and other conversations, Judge Haas did issue an order on July 14 in which he issued a 90 day stay of proceedings which, in the July 14 order, he said would be incorporated into a more complete "agreed" order being worked upon by the Court and the parties.

Right out of the chute, Thompson (in what the SCPR believes was a major miscalculation of how to deal with Craig Conley) started, to use Conley's words, "saber rattling."  He threatened the Marcelli side with Ohio Rule of Civil Procedure Rule 11 sanctions for filing a frivolous lawsuit.


Here is Rule 11:

The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation...

If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee (emphasis added).

The latest exchange (yesterday) between Conley and Thompson, if anything, indicate an escalation of hostilities between the two sides.

What follows is some excerpts of the more provocative language from Thompson's letters (July 13 and July 20) to Conley:

Regardless, while we are not required to under Ohio law, this gives us the opportunity to advise you and your client of your Civil Rule 11 and ORC 2323.51 liabilities. (July 13) (emphasis added)

As you must be aware, Mr. Zeigler has engaged in no misconduct or wrongdoing.  No less than 4 (sic) federal and state agencies, including the FBI, U.S. Attorneys office, Stark County Prosecutor and the Ohio State Auditor, have review the facts and none of them have implicated Mr. Zeigler in an fashion to Mr. Frustaci's criminal conspiracy.  From your pleadings, it is clear that you have no facts to support such a contention, either. (July 13) (emphasis added)

Also, to be noted from Thompson's letter is his claim that the statutory bases for the Marcelli lawsuit apply to Zeigler as a public official and that Zeigler is qualifiedly immune from any such lawsuits.  Moreover, it is clear from Thompson's July 20 letter that Zeigler has asked Stark County to provide a defense to the Marcelli lawsuit.  Apparently, this is why Stark County commissioners, last Wednesday, brought Zeigler and Thompson into executive session.

A question:  Is it a proper use of executive session to discuss whether or not Stark County has to provide a county official with legal representation?

Moreover, wouldn't it be "a real kick in the pants" for Stark County taxpayers to have to pay for "any" Zeigler legal fees?

Back to the Thompson letters:

Your concerns about any mortgage or an other issues are overshadowed by the fact that you have filed a suit that fails to state a claim for relief. (July 20) (emphasis added)

Since Stark County will be required to provide Mr. Zeigler with a defense, we will also be seeking reimbursement for the attorney fees expended in his defense, which is entirely compatible with your ostensible concern for the taxpayers of Stark County--of which your client [Marcelli] only recently joined the ranks after being delinquent for so many years. (July 20) (emphasis added)

At this point, we believe it would be a wiser course of action to consider your realistic alternatives in this case.  As we see it, none are very attractive or beneficial to you or your client.  This is not saber rattling; it is a legitimate response to a suit without basis in law or fact brought by an individual [Marcelli] with a strong public personal animus towards Gary Zeigler.  We are providing notice to you as a professional courtesy so that one one can say that we came out of the blue or that our responses are a surprise, nothing more nothing less.  It is time for you to take a step back from this. (July 20) (emphasis added)

If anyone - from the tone of this letter - thinks that Gary Zeigler is going to step down as treasurer, they had better think again.

It will take one of three things to get Zeigler out of office.

First, the petition being circulated by Stark County Republicans will have to produce enough signatures in a legally timely timeframe and get a court of law to remove him,

Second, the Stark County commissioners will have to find a legal basis on which to remove him and act to do so, or

Third, Stark Democrats (in the 2012 primary election) will have to find a candidate to defeat Zeigler in that election.

In the meantime, the SCPR is pleased to see Conley/Marcelli proceeding as they are.  Thompson's legal opinions are just that with an emphasis on the word "opinion."  In time, we will have a legal authority who counts (the judge in the case) determine the issue.