Gang of Five: Some text messages destroyed, attorney says

Gang of Five: Some text messages destroyed, attorney says
Cincinnati City Council's "Gang of Five." From left to right: P.G. Sittenfeld, Chris Seelbach, Greg Landsman, Wendell Young, Tamaya Dennard. (Photo: FOX19 NOW)

CINCINNATI, OH (FOX19) - Two Cincinnati City Council Members who are part of the self-proclaimed “Gang of Five” destroyed secret text messages on their phones that are the focus of an ongoing lawsuit, an attorney announced Tuesday.

Wendell Young purposely deleted texts, and Tamaya Dennard has told city lawyers she dropped her phone in a pool, accidentally destroying hers, said Brian Shrive.

He represents an anti-tax activist who sued for the messages earlier this year, alleging the majority of council violated Ohio’s Open Meeting Act and the city charter.

Attorneys for Gang of Five informed Shrive of the destroyed messages this week, he said, and indicated they are working to recover the lost messages if possible.

Reached for comment Tuesday, Young responded “News to me.”

He requested more information, so we sent him a copy of Shrive’s news release.

Then he responded: “This matter is being litigated in court. I’ll have no comment until the courts decide.”

Dennard did not respond to a request for comment.

Neither did City Solicitor Paula Boggs Muething.

“I’ve never seen this level of corruption at City Hall before,” said Vice Mayor Christopher Smitherman. “It only confirms with the public how bad these text messages are.

“The judge should require the Gang of Five to appear in chambers in person and hold all of them in contempt of court. These guys are thumbing their noses at a judge. It sends the wrong message to allow those who make laws to ignore them.”

Shrive said he and his client, Mark Miller, intend to pursue sanctions against Young and Dennard and the city, “for the destruction of records/evidence and misleading the court.”

That means taxpayers might have to shell out even more money for what has now clearly become another City Hall debacle.

The city and/or Young and Dennard could be ordered by the court to pay penalties for failing retain the messages and/or follow Ohio’s public records law.

Destruction or damage of public records, for instance, is subject to a fine of $1,000 to $10,00 per violation, state law shows.

Young and Dennard and/or the city also could possibly now be held in contempt of court.

Earlier this year, City Council already approved spending up to $100,000 for private lawyers to represent the Gang.

Several lawyers argued for the Gang last month when they unsuccessfully attempted to convince Hamilton County Common Pleas Court Judge Robert Ruehlman to keep the messages private.

Now, the Gang is being represented by the city solicitor because a previous conflict of interest no longer exists.

The judge tossed out a motion by a political ally of some of the Gang to drag Smitherman, whose wife is suffering from terminal cancer, into the lawsuit and fray.

Smitherman, an independent who has declared his candidacy for mayor in 2021, has been at odds with the Gang on several issues and could find himself in a political fight with Sittenfeld if Sittenfeld challenges him for the mayor’s job.

It’s not clear why city lawyers and/or Young and Dennard did not disclose text messages had been destroyed sooner.

This all started over two news releases issued by the Gang announcing their support for then-City Manager Harry Black after Mayor John Cranley asked him to resign in March.

The releases indicated the Gang had privately met or discussed the issue ahead of time before a public discussion or vote, which would be a a clear violation of Ohio’s Open Meeting Act and the city charter.

Shrive filed public records requests with the city for the text messages to prove the theory, but he said the city and council members did not respond.

Six weeks later, he sued for the messages, alleging the majority of Cincinnati City Council violated Ohio’s Open Meeting Act and the city charter.

The suit names Sittenfeld, Dennard, Young, Seelbach and Landsman.

It describes the Democrats as “a cabal of five rogue members” of Council holding illegal, secret meetings via email and text messages to discuss Cranley asking Black to resign.

Emails attached to the lawsuit provide what appears to clearly be documentation of the law violation, including two press releases about the city manager from the five council members.

One email is titled “Draft Letter for Council Majority to release” and another one from Seelbach to Landsman has a subject line “Revised Letter” and indicates they are all texting each other on a group string.

One of the press releases, signed by the five council members, states they wouldn’t encourage or assist “the intentional denigration of another black leader in our community.”

The second release states they do not support a more than $400,000 severance payment to Black that he and the mayor agreed on, which would fork over more than eight months of his salary than his current contract stipulates.

The council majority at that time refused to fire Black, saying Cranley’s objections to him are personal and political and not based on his job performance.

Black insisted he was staying.

He quit, however, moments before a special City Council meeting was convened April 21 to vote on his termination. By then, he’d lost majority council support in the fallout over Kyle Plush's death.

In the meantime, city attorneys turned over text messages exchanged by the “Gang of Five" to an appeals court for private review earlier this week.

The messages are from March 1-19 relating to or regarding the former city manager and mayor.

The texts will remain under seal until the court determines which, if any, are public records. It’s not clear when the First District Court of Appeals may rule.

Earlier this year, lawyers for the Gang released dozens of text messages exchanged on council members' group string between Jan. 19 to March 24.

But they argue that because the messages were sent and received using their personal phones, they cannot all be considered public records, no matter their contact.

Last month, Hamilton County Common Pleas Court Judge Robert Ruehlman directed the Gang of Five and city officials to release all communications Jan. 1 to present, or Oct. 23, court records show.

Judge to Gang of Five: Turn over secret text messages by Nov. 2

He also ordered council members to be deposed by Shrive.

But the city solicitor filed an appeal to the judge’s order on the grounds it would force council members to turn over text messages and other communications that should be considered privileged and confidential between them and their lawyers, court records show.

The Gang does admit, however, to texting other council members about the mayor and former city manager during City Council meetings; and that some of these text messages have not been produced in response to our public records request.

It’s not clear when this case will be resolved or what the final price tag will be for taxpayers.

The heart of the matter - whether text messages exchanged by public officials about public business on their private phones are public record - could ultimately be decided by the state’s highest court.

Earlier this month, a prominent local group of African American ministers called on the Gang to come clean and release their secret text messages. The ministers suggested the Gang was putting up such a strong fight to shield their private messages to stave off political embarrassment.

“The City’s money and resources shouldn’t be squandered trying to protect people’s reputations caused by their own words. The City of Cincinnati has more important problems to tackle using limited resources," the ministers wrote."

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