Gang of Five: City Council secret texts cost taxpayers $71K so far

Gang of Five: City Council secret texts cost taxpayers $71K so far
FILE PHOTO (FOX19) (Source: WXIX)

CINCINNATI, OH (FOX19) - Cincinnati officials released figures Wednesday showing the cost to taxpayers -- so far -- for outside attorneys to defend City Council’s Gang of Five in lawsuits seeking their secret text messages.

After repeated requests, Vice Mayor Christopher Smitherman received a rundown from City Solicitor Paula Boggs Muething.

“The public deserves to know what they are paying for and how much it costs,” Smitherman told FOX19 NOW.

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Big picture: the city has been billed $71,963 so far.

That’s $60,252.45 from two prominent downtown Cincinnati law firms and $11,708.25 from an outside vendor used to retrieve text messages from the phones of the self-proclaimed “Gang of Five:" Council Members Tamaya Dennard, Wendell Young, Greg Landsman, P.G. Sittenfeld and Chris Seelbach.

“It costs $10,000 per day in losses to operate the streetcar, so that’s just a week of streetcar losses, right?” said Chris Finney, one of the lawyers representing Mark Miller of COAST, who sued for the private messages.

That $71,963 figure is nearly half of the $150,000 the city has allocated for outside legal work in the lawsuit from an anti-tax activist accusing five council members of violating the state’s Open Meeting Laws by deciding public business via a secret text string.

Council sought outside legal help in the case when a conflict of interest arose during attempts to draw Smitherman into the case.

A judge rejected the request, so city lawyers took the case back over, according to an email from Boggs Muething to Smitherman released to FOX19 NOW under a public records request.

City attorneys also are clocking in major time on the case. Boggs Muething estimated they have clocked in a minimum 350 hours on case, which is now in the First District Court of Appeals.

More details about the hours city attorneys have clocked in on the case and invoices to the city from the outside law firms are expected to be released Thursday, according to Smitherman.

“The longer this saga over the text messages drag on the more costly it will be for taxpayers," said council member Jeff Pastor. "I would like this saga to end and get back to focusing on how we are going to close the looming budget deficit ahead.”

The suit, filed in April, describes the Democrats as “a cabal of five rogue members” of council holding illegal, secret meetings via email and text messages to discuss Mayor John Cranley asking then-City Manager Harry Black to resign, a violation of Ohio’s Open Meeting Act and the city charter.

The Gang’s private lawyers, who are with Dinsmore & Shohl and Taft Stettinius & Hollister, unsuccessfully argued in court Oct. 21 to keep the messages private.

Hamilton County Common Pleas Court Judge Robert Ruehlman disagreed and ordered the messages turned over to him no later than Nov. 2.

That includes even messages between two council members - and he extended the date to Jan. 1 2018 to the date his order was issued. The lawsuit only sought 18 days of texts.

Now, it’s not clear when the appeals court may rule. Then, the resolution of the case - and legal costs - could continue to mount if it’s appealed to the Ohio Supreme Court.

Since the lawsuit was filed, attorneys for the Gang have released all of the text messages they exchanged in the group string, not ones exchanged between two council members.

Those messages were eyebrow-raising, with Young calling Mayor John Cranley a liar and referring to him as “little sucker."

In another, Sittenfeld urged then-City Manager Harry Black to seek counseling.

In other messages, Black promised Seelbach he would fix problems with the streetcar if Seelbach would vote to keep Black.

The Gang also discussed Cranley’s nominee to the Southwest Ohio Regional Transit Authority board (which was ultimately rejected in a 6-3 vote) and FC Cincinnati’s stadium in the West End.

By law, the city must pay the legal fees of anti-tax activist Mark Miller if he prevails in his lawsuit.

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

A city attorney disclosed Dennard accidentally destroyed hers when her phone fell into a pool, and Young purposely deleted his off his phone, court records show.

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

Hamilton County Prosecutor Joe Deters and three of his top assistant prosecutors are reviewing the case to see if the law was broken when the text messages were destroyed.

You can read the full email with the figures released so far below:

Vice Mayor:

This email is in response to the RLS below. My apologies for the delay in getting you this information. We will get copies of the invoices to your office tomorrow.

Overview of text message-related litigation

The City’s legal position is that text messages sent on personal, privately paid-for cell phones are not the public records of the City because these messages are not kept by the City. Recently, this position has been challenged in lawsuits filed in Hamilton County and the Ohio Court of Claims. Below is a summary of these lawsuits:

  • State ex rel. Miller v. Sittenfeld, et al., C1800224: This case is a public records original  action before the First District alleging that text messages sent between  Councilmembers on their private cell phones are public records under Ohio  law when they discuss City business. The City is currently working to  submit the questioned text messages to the Court for its review.
  • State ex rel. Miller v. Sittenfeld, et al., A1801834 and C180608: This case alleges that an open  meeting violation occurred when a quorum of City Council conducted City  business via text message on March 16, 2018. The trial court issued a  discovery order that the Solicitor’s Office maintains is overly broad and  requires the City to divulge attorney-client communications. The City  appealed this discovery order to the First District Court of Appeals in  Case Number C180608. The relator filed a motion to dismiss the appeal,  which the Court denied. The appeal is set to be briefed in the first part  of this year.
  • Gannet v. City, 2018-01339PQ and Sinclair  v. City, 2018-01357PQ: These cases are public records disputes filed  in the Ohio Court of Claims pursuant to R.C. 2743.75 which provides for an  alternative process to filing a lawsuit when there is a denial of a public  records request. This dispute is brought by the Enquirer and Sinclair  Media arguing that text messages sent between Councilmembers, the Mayor,  and City Manager on their private cell phones are public records under  Ohio law when they discuss City business. The City has filed motions to  dismiss these claims and has not yet received a decision on them.

Overview of Outside Counsel Work

The City Solicitor’s Office identified a potential direct adverse conflict in the case State ex rel. Mark Miller v. Sittenfeld, et al., Hamilton County Case Number A1801834 (“Open Meetings Lawsuit”) and requested an appropriation to obtain outside counsel to represent the City of Cincinnati as well as separate outside counsel to represent the Councilmembers involved in their official capacities. The Solicitor chose the law firm of Taft Stettinius & Hollister to defend the City and the law firm of Dinsmore & Shohl to represent the Councilmembers. On September 19, 2018, Council passed Ordinances 290-2018 and 291-2018 which appropriated a maximum of $75,000 for each firm’s outside counsel contract.

These firms stepped into the role of the City Solicitor’s Office in defending both the City and the Councilmembers in the Open Meetings Lawsuit. The City Solicitor’s Office continued to defend the City and Councilmembers in a related public records lawsuit filed in the First District Court of Appeal, State ex rel. Mark Miller v. Sittenfeld, Case Number C1800224 (“Public Records Lawsuit”).

On October 23, 2018, the Judge in the Open Meetings Lawsuit issued a decision that eliminated the potential direct adverse conflict, and on October 31, 2018, Council passed Motion 201801646 directing the Solicitor’s Office to end the outside counsel engagement. At that point, the City Solicitor’s Office began representing both the City and Councilmembers in the Open Meetings Lawsuit. As of October 31, 2018, Taft billed the City a total of $17,080.45 and Dinsmore billed the City a total of $37,502.

Through October and November, discovery in the Open Meetings Lawsuit was ongoing, specifically retrieving text messages from cell phones. This process required the use of an outside vendor, Binary Intelligence, to retrieve the text messages. Binary Intelligence was originally hired through Dinsmore. Because Binary Intelligence was already engaged in this process on October 31, 2018, the Solicitor’s Office continued to use their services to complete the discovery because this was the quickest and most economical way to finish the work. Additionally, attorneys from Dinsmore did some work after October 31, 2018 which was limited to transitioning the defense of the Councilmembers back to the Solicitor’s Office. Binary Intelligence has billed a total of $11,708.25 for their services to date. Since November 1, 2018, Dinsmore has billed a total of $5,670 for their services.

Summary of Billing:

  • Taft (representing the City) = $17,080.45
  • Dinsmore (representing Councilmember Respondents) =  $43,172
  • Binary Intelligence (discovery technical work) =  $11,708.25

Total: $71,963.70

City attorney time spent:

Because the City Solicitor’s Office generally does not bill departments for legal work that is not reimbursable, its attorneys do not bill their time in the same way that private attorneys do on non-reimbursable matters. Therefore, the City attorney hours on this case are only an estimate. In addition to the City Solicitor, three other attorneys have performed litigation-related work on these cases. The approximate number of hours these attorneys have billed to this particular matter is a minimum of 350 hours.

Open Meetings Violation Liability:

Finally, you asked what the maximum fine is for each illegal text message found in violation of the Ohio Open Meetings Law. Pursuant to R.C. 121.22(I), there is a $500 forfeiture if a public body is enjoined for violating the Open Meetings Act. In this instance, the allegation is that a series of texts constituted a meeting, so the potential violation for such a meeting would be a $500 forfeiture per meeting. The public body is also responsible for paying the reasonable attorney’s fees of the party that brought the suit.

Please feel free to contact me or Emily Woerner at 352-3307 if you have any questions or concerns.

Thanks, Paula

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