SWANSON V. MAIER "QUO WARRANTO" - SCPR FIRST IMPRESSIONS ON THE EVIDENCE. WHAT ARE THEY?

UPDATED:  9:45 AM

For the SCPR, the only way to look at the February 5, 2013 conclave of the Stark County Democratic Party session to pick a successor to Mike McDonald is through the prism of politics.

All three candidates had very impressive "on the merits" qualities to emerge as the selectee.

So on the 5th "the winnah" was going to be the one of the three who had the most political clout and the savviest political gendarmes at his disposal.

Which of course meant that Republican Larry Dordea had no chance at all.

When the unfortunate need of McDonald to send in his letter of resignation arose, "believe me you:"  the wheels of politics got to turning real quick!

According to testimony (i.e. a deposition of former Sheriff Tim Swanson) filed with the Ohio Supreme Court yesterday, it appears that Randy Gonzalez (chairman of the Stark County Democratic Party) asked for the help of Stark County commissioner Tom Bernabei in finding a successor to McDonald.

A meeting was called (at Bernabei's commissioners' office) that included, of course, Bernabei himself, the-then Sheriff Tim Swanson and Gonzalez.

Swanson seems to be surprised to learn that Massillon Safety Director George T. Maier had been settled upon as the person to succeed McDonald.

Settled up by whom?

By those who fancy themselves to be the "the powers that be" within in the Stark County Democratic Party hierarchy, perhaps?

• Note:  The SCRP has talked with Bernabei and he tells your truly that he is NOT part of a effort on the part of Stark County Democratic Party insider leadership to intervene on behalf of George Maier. 
• Once he has had a chance to look at the Swanson and Maier depositions in Swanson v. Maier, he says he will get back The Report with more details (i.e. to questions unasked by legal counsel) and with his perspective. 
• As readers of the SCPR know, yours truly always solicits input from those who are subjects of SCPR blogs availing the full and unfettered opportunity to state their side of the matter.

Swanson was asked by perhaps? the faces of the Party poobahs to help Maier qualify by his appointing Maier for one day as a "full-time" deputy Stark County sheriff.

Why this strange request?

Well, there is a provision in Ohio Revised Code (ORC) Section 311.01(B)(8)(a) and (b) (Election and Qualification of Sheriff) that an appointee as county sheriff:

• must have from within four (4) years back from February 17, 2013 (the qualification date by the SCPR's calculation) have held obtained a certificate of peace officer training, and
• must have from within four (4) years back from February 17, 2013 (the qualification date) have been a full-time peace officer engaged in enforcing statutes, ordinances or codes.

Swanson's hosts worried that Maier was not qualified under Ohio statutory law and could Swanson help out by appointing Maier as a full-time deputy sheriff for a day?

To his credit, Swanson refused in this way:  (his testimony)

I said, "George, here is the deal: You qualify, I support you 100 percent." I told him that on the phone. And I still, to this day, if somebody says you are qualified, I support him 100 percent.

I just don't want to circumvent the law.

And I worked for 13 years as a sheriff on the board to get the law to where it was, and I don't want to go around it.

Where did George Maier turn next?

To an old friend (one of his "good ole boys?") who is sheriff of Harrison County.

Sheriff Ronald J. Myers.

As luck would have it for Maier, old pal Ronald was looking for a full-time deputy sheriff because of the booming oil and gas industry in Harrison County which was causing a big increase in traffic.

As it turns out, though he had not hired a new deputy for some time, Maier's serendipitous surfacing triggered a "aha" moment for the Harrison County sheriff who admitted in his deposition in Swanson v. Maier to be somewhat of a fan of Maier's going back to the days that Maier was serving in a Ohio Highway Patrol outpost in one of Ohio's most hinterland-esque areas of the state.

Myers and Maier met in New Philadelphia on January 5, 2013.  Myers talked about needing a new deputy and Maier said "Well, I'd like to get the position if I could get it."  And Myers said:  "Okay."  (LINK to deposition)

According to Myers, talk of the job just sort of came up "out of nowhere."

And he offered these additional details in his examination by Swanson's attorney:

• Maier's application for appointment was granted by him on January 6th (a Sunday),
• he would be an entry level full-time deputy,
• he was required by union contract to work 80 hours within a 14 day time period,
• he (Myers) assigned Maier to work on the following weekend of Saturday, January 12th and Sunday, January 13,
• The appointment papers were not filed with the Harrison County auditor's office until January 14th,
• he hired Maier notwithstanding knowing the fact that Maier was full-time safety director in Massillon at the same time,
• that Maier never worked 80 hours within 14 days, only a total of 16 hours on January 12 and 13, and
• he took as certification of police officer training (ORC 311.(B)(8)(a)) a letter from Ohio attorney general Mike Dewine issue to Sheriff Swanson on July 28, 2011

And yet in his deposition, Maier denied that his two day full-time employment had anything whatsoever to do with his qualifying to be Stark County sheriff.

Hmm?

Does anyone reading this blog believe that?

Does anyone in Stark County other than the SCPR think how arrogant it is for Maier to think that he can spin a tale like he did and have it be taken as credible by just an ordinary inquiring mind?

A man who would be the Lord and Master law enforcer over us all!

Maybe there should be just a little squirming among Stark Countians at the audacity of the spin?

Another thought that the SCPR picked up from a "sounding board" to yours truly is whether or not Maier's two days in Harrison County was enough to make him a full-time employee however brief his full-time status may have been.

How so:  whether or not?

Well, the sounding board opined, in Harrison County it is likely that to actually qualify as a full-timer one must qualify to be and become a union member by negotiated contract language.

Would Maier's brief stay on the sheriff's staff have allowed for enough time for the full cycle to have been realized?

More, from among a number of things, on Sheriff Swanson's deposition (LINK).

• he says he thinks Maier is unqualified under ORC 311.01(B)(9)(a) and (b) in that:
• (B)(9)(a):  must have from within five (5) years back from February 17, 2013 (the qualification date) have been a supervisory peace office,
• OR,
• (B(9)(b):  must two years of post-secondary education,
• he acknowledged he was a Lou Darrow (his operations chief) for sheriff supporter at the February 5th sheriff selection event,
• he asserted that he is "the one driving the bus" in challenging, George Maier's qualification to be county sheriff,
• NOTE:  The Report is struck how easily evaded the weak attempt by Maier's high-powered Columbus-based (Roetzel & Andress [R&A])  legal counsel to determine who was paying for the Swanson challenge.  
• Not that it is relevant to the outcome of the case.  
• As far as the SCPR is concerned,  R&A spent an awful lot of time and effort questioning on matter not relevant to the criteria likely to be used by the Ohio Supreme Court in determining the case.
• Remember also R&A is being paid by Stark County taxpayers to represent Maier.
• he sent a letter to Prosecutor John Ferrero, to wit:

February 7, 2013

Dear Prosecutor Ferrero

I am requesting that your office take whatever steps are necessary to begin legal action to determine if George Maier is qualified to assume the position of Stark County Sheriff.   

Thank you for your attention to this matter. Should you have any questions, please feel free to contact me.

Sincerely

[Sheriff Timothy Swanson] 

• he gave reasons given for sending the letter, to wit:

I wanted him to publicly be able to say why he wasn't doing anything. How do I want to say

I don't have a lot of faith in Mr. Ferrero. I am not a big John Ferrero fan. I felt this was necessary for me to do.  To put him on the spot of either do your job or bow out.  

Yours truly found intriguing a line of questions by George Maier's attorney which suggests a desire to separate George from his brother Johnnie, to wit:

Hmm?

In George Maier's deposition (LINK), he takes great pains to speak glowingly of his family

So why would he allow his attorney to impliedly make George out (at least the SCPR's take) as being a cut above his brother Johnnie?

Tis a puzzlement.

Because it appears to the SCPR that with the Maiers, "blood is thicker than water!"

So legal counsel's tactic may be a case of "whatever it takes."

This tack may indicate that counsel feels that his client has a very weak case on fulfilling the requirements of the qualification law and therefore he needs to emphasize his deep, deep and impressive list prior police work, his training and the like and to distance from the political.

But all-in-all, The Report's take on evidence filed (the form of depositions and documents [many of which have to do with Maier's credentials/history in police work] with the high court is that it changes not a thing.

The Maier testimony seems to the SCPR to be a desperation attempt to overcome sketchy at best verifiable facts that he meets the statutory criteria of (B)(8) and either of B(9)(a) or (b) of ORC 311.01.

Moreover, readers of area media reports will recall that Maier, when asked before applying for the Stark County Democratic appointment, said that if he did apply that he would "guaranty" that he is qualified.

Well, on reading his deposition it is abundantly clear his guaranty statement was an overstatement to say the very least.

He is very much at the mercy of the Ohio Supreme Court's determination of what "qualified" entails.

In is answers to questions posed to him his answers are saturated with equivocal and nuanced language.  Hardly "guaranty-esque" talk, no?

In sum, it is hard to see how Maier remains sheriff.

Very few, if anyone thinks George Maier as a matter policing experience and vocational experience (de facto) that he is unqualified to be sheriff.  But de jure  (as a matter of law) is quite another thing.

The SCPR's only reservation in the de facto sense about Maier is his temperament.  (LINK to prior SCPR blog which deal with the topic).

As Tim Swanson posits, "the huff and puff" (the SCPR's words; not Swanson's) on Maier's job history and credentials matter little, if at all, in the face of the statutory law requirements of Ohio.

For there is that little thing we call "the rule of law" however inconvenient and frustrating it may be to a person such as George T. Maier in his quest to remain as Stark County sheriff.

It is a touch ironic that it is apparent from Maier's deposition that he seems to have gotten more than a little help from Stark County Common Pleas judge Frank Forchione.

Ironic?

Yes, Forchione himself went through a tussle in last December, 2012 and early 2013 with a Bethlehem Township resident over the judge's order that a defendant who had pled guilty to a number of felonies in his court pay a $5,000 fine to the victims of the Sandy Hook Elementary School shootings.

So, again, how is that ironic?

The legal challenge to the judge was grounded in his having not followed the statutory law of Ohio which requires that fine money be paid into the county treasury to be deposited into the general fund.

In short, the issue (of complainant Tom Marcelli in a declaratory action) with Forchione was a matter of the "rule of law."

Marcelli dismissed his case when he was satisfied that Judge Forchione had complied with Ohio law.

This was the same Judge Forchione, who declared in a pre-processing of applications telephone conversation with the SCPR (LINK) that his role was not to approve or disapprove qualifications of applicants, but merely to accept the applications and their affidavits and move the process along.  The qualifying agent, he said, was to be the Stark Board of Elections.

In the depositions, a point repeatedly made by Maier's counsel to deponee Swanson:  "You are aware, are you not, Judge Forchione says George Maier is qualified?"

The testimony brought out that Maier had had four meetings with the judge and in addition a number of telephone calls.  Moreover, the judge wrote (documentary evidence confirms) to Stark State College officials seeking "apparently?" to clarify whether or not Maier met the provisions of ORC 311.01(B)(9)(b).

Hmm?

All of which may say that he, Democratic Party Chairman Gonzalez, Commissioner Bernabei were part of a vanguard of "let's make George Maier sheriff" movement?  (See Bernabei preliminary disclaimer above)

And who might be - and who the SCPR thinks was- lurking in the background?

You've got it.  None other than brother Johnnie, the accomplished political operative he is.

It is understandable that in a family context that, at least from Johnnie's perspective:  "blood (getting brother George appointed) is thicker than water (i.e. ? "the supremacy of the rule of law").

Nonetheless, if the "rule of law" is to prevail, The Report would be surprised to see Maier remain Stark County sheriff when the Supreme Court rules.

However, a cautionary note is in order.

As local attorney and civic activist Craig T. Conley likes to say:  "The Supreme Court does not have to be right, it just has to be The Supreme Court!"