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.
