CINCINNATI (FOX19) - Five Cincinnati City Council members who got into trouble over deciding public business privately via text messages may now face criminal prosecution.
The Ohio Auditor Office made a referral for criminal prosecution Thursday to the city of Cincinnati against five council members for the misdemeanor charge of dereliction of duty, according to Hamilton County Prosecutor Joe Deters.
The so-called “Gang of Five" admitted in a lawsuit settlement earlier this year to violating Ohio’s Open Meetings Act. At that time, a Hamilton County judge told them they should resign.
Auditor Keith Faber told FOX19 NOW in an interview earlier this year his office was reviewing the thousands of text messages exchanged among the five members who made up a majority on the council: P.G. Sittenfeld, Chris Seelbach, Greg Landsman, Wendell Young and Tamaya Dennard.
Deters said in a news conference Thursday a special prosecutor was appointed to handle the referral.
He said he discussed the matter with City Solicitor Paula Boggs Muething and Mayor John Cranley. He said all three agree it’s best for a special prosecutor to come because Deters and Muething both have conflicts of interest.
“People still blame me for Tracie Hunter,” Deters said.
“People are going to think it’s political. It is not. I want to make sure everyone understands. You have to be conscious of what the rules are if you’re an elected official.”
The referral for criminal prosecution is only a recommendation at this point, Deters said.
The special prosecutor will decide whether to present it to a grand jury, he said, adding that he thinks that is “probable.”
Deters identified the special prosecutor as a former assistant federal prosecutor who now works in private criminal defense, Patrick Hanley.
“It’s the job of the prosecutor’s office to seek justice and hopefully that’s what Pat does,” Deters said.
The recommendation to prosecute is based on a review of text messages among the council members illegally discussing city business between Jan. 18, 2018 and March 24, 2018.
Faber wrote in his recommendation that the council members were “public servants serving as elected officials of a political subdivision, recklessly failed to perform a duty expressly imposed by law with respect to the public servant’s office, or recklessly did an act expressly forbidden by law with respect to the public servant’s work; to wit: took official action and conducted deliberations upon official business by a majority of a public body, outside of the requirements of the City of Cincinnati charter and the Open Meetings Act, which requires such actions to be done only in open meetings.”
The city and Deters decided on a special prosecutor approach after the prosecutor’s offices in seven Ohio cities turned down the city’s request to take the referral, according to a memo Muething wrote to City Manger Patrick Duhaney and Mayor John Cranley.
Columbus, Dayton, Toledo, Oregon, Montgomery County, Akron and Upper Arlington all declined.
A spokeswoman for the Auditor’s Office declined comment Thursday, telling FOX19 NOW: “It is our policy not to discuss ongoing work of our office.”
We also reached out to city officials and the council members for comment.
We did not hear back beyond the city solicitor’s memo being released.
The five council members, usually prolific on Twitter and other social media, were quiet online Thursday.
The auditor’s office has been officially investigating the Gang of Five’s actions during the normal financial audit of the city, Faber told us earlier this year.
Deters said Thursday the special prosecutor has a copy of the audit. It has not been publicly released.
Faber told FOX19 NOW in previous interviews about the situation there’s evidence to indicate the five council members knew they were violating the state’s Open Meetings Act at the time they privately discussed public business via secret texts and emails in 2018.
If that’s the case, he said at the time, there’s likely going to be findings for recovery against them.
Findings for recovery are assertions public money was misspent and must be repaid.
In another interview, back in April, he said a special audit was likely to look into the matter.
Since then, Faber and his staff has been close-mouthed about the case. They have not said if a special audit was ever launched, and it’s not clear when the audit will be publicly released.
We also reached out to the Ohio Ethics Commission.
Executive Director Paul Nick said they have been "communicating with the auditor’s office on matters within our authority.”
He declined further comment Thursday.
In a statement, the Hamilton County Democratic Party dismissed the auditor’s referral for criminal prosecution as political.
“Local elected Republican officials put this issue to bed nearly a year ago, and now the Republican State Auditor - who is Trump’s reelection campaign co-chair and was a central player in the statewide ECOT (Electronic Classroom of Tomorrow) charter school corruption scandal - is trying to make a name for himself in Cincinnati.
"Hamilton County residents care about good paying jobs and infrastructure improvements, not hyper-partisan shenanigans. It’s time to move on.”
Former Cincinnati Mayor Charlie Luken tells FOX19 NOW he agrees.
“This is a political sideshow foisted on our City by a Columbus politician looking for personal political gain. The matter has been thoroughly reviewed by local law enforcement and no action was taken. Our council has much more important business to consider. Enough already. Move on. This is going to cost hundreds of thousands of taxpayer dollars for a 'special’ prosecutor. For what? It has already been investigated by Hamilton County."
Alex Triantafilou, chairman of the Hamilton County Republican Party said in a statement to FOX19 NOW: “These unprofessional attacks on our State Auditor resemble the rank silliness we saw from this gang in their secret text messages. This text message debacle is 100% their fault. Instead of focusing on the mess they’ve made of city government, they continue to blame others for their own misconduct.”
The five members of council’s secret communications were revealed when an anti-tax activist, Mark Miller, sued for them last year after city officials did not release them when an attorney for Miller filed a public records request for them.
The April 2018 lawsuit 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 the then-City Manager Harry Black to resign in violation of Ohio’s Sunshine Law and the city charter.
Over the past year, all of council’s texts have been released, including group ones and others they exchanged with each other individually or with a few others.
Council’s secret messages were eyebrow-raising, with Young calling the mayor a liar and referring to him as “little sucker."
In another, Sittenfeld urged the former city manager to seek counseling.
In other messages, Black promised Seelbach he would fix problems with the streetcar if Seelbach would vote to keep Black.
Shrive told FOX19 NOW Thursday he was glad the state auditor was taking the Sunshine Law violations of the Gang of Five seriously and he hoped for a “just” resolution to the matter.
He confirmed he was exploring the possibility of taking action with a group of citizens to try to remove the elected officials from office should they be convicted of a crime.
City taxpayers shelled out over $101,000 in a settlement in the case, $90,000 of which went to Miller’s legal fees at the Finney Law Firm. The law firm was founded by the same man who began Coalition Opposed to Additional Spending and Taxes (COAST), Chris Finney.
Another $10,000 of the settlement was for a statutory forfeiture because one council member purposely deleted his text messages (Young) and $1,000 for statutory forfeiture for violating Ohio’s Open Meetings Act, according to the Ohio Ethics Commission.
Taxpayers also forked over another $75,000 in legal fees from outside lawyers to represent the the city and the Gang of Five, on top of city attorneys spending 450 hours on the case, city records show.
Council had approved spending up to $150,000 for outside lawyers.
Four of the five “Gang” members: Seelbach, Sittenfeld, Landsman and Young, acted on their own back in March to repay their $200 share of the $1,00 fine for violating the Open Meetings Act, city records show.
At that time, we asked the solicitor’s office for records showing if and when Dennard repaid her share. To date, we have not been provided with a receipt showing that occurred.
To try to improve access to public records, the state auditor recently announced his staff will look each year to see if local governments are complying with Ohio’s sunshine and public record laws as part of their annual audits.
It’s a new rating system called “STaRS." Similar to restaurant star ratings, government’s openness will be rated on the number of stars they receive.
The first results will be included in audits for the fiscal year ending Dec. 31, out publicly after Jan 1 and posted online.
As part of the lawsuit settlement, Cincinnati city officials were required to draw up meeting minutes based on the secret texts and emails so there is a public record of the communications.
The settlement they entered into back in March also required the Gang of Five to release the texts and emails they exchanged between Jan. 1 through most of October.
If criminal prosecution occurs against the “Gang of Five,” it would be the second time they faced that possibility.
Deters convened a grand jury in late November 2018 to look into whether anyone broke the law once it was revealed in court papers related to the case that texts on Young and Dennard’s phones were destroyed in the midst of the legal battle over them.
A city attorney told Shrive that Young intentionally deleted his messages from his phone, and Dennard’s were accidentally destroyed when her phone fell into a pool, Shrive wrote in court records.
Dennard later clarified in tweet “I NEVER dropped my phone in a pool and I never said I did.” She said she dropped her phone at a pool in August 2018 and “it experienced water damage.” She also said three months prior to her phone being damage, in May 2018, she had already turned her phone over “TWICE for the sough-after data to be extricated by the City law department."
Deters sent deputies with subpoenas to City Hall to obtain the Gang’s cell phones in late November 2018.
A lawyer, referred to as a “special master” was appointed by the court at Deters’ request to help prosecutors review the messages once they were downloaded from council members’ phones. The special master turned his reports over to prosecutors who ultimately declined to continue to proceed with the grand jury investigation.
Deters turned the texts over to Ruehlman, saying an open meetings law violation related to their destruction would only result in fines while the judge could impose a more serious sentence.
The judge can hold people in contempt of court for disobeying his court order to retain all messages.
That didn’t happen, however.
A hearing was held to determine if Young was in contempt for purposely deleting his texts despite the court order to retain them due to the ongoing litigation.
But the judge decided the contempt charges didn’t apply because Deters said his office could not determine when Young destroyed the messages, before or after that order came down.
Young’s lawyer, Scott Croswell, maintained Young deleted them before the order.
In June, two anonymous Democrats, listed as “John Doe,” sued the city over the release of more of council’s texts.
They claim their constitutional rights were violated and their privacy was invaded when the city recently released some of the messages sent last year to the “Gang of Five."
The suit alleges the city illegally exposed private information about their lives when they released texts that also were given to the media, including FOX19 NOW.
The suit seeks a restraining order to halt the city and attorney Brian Shrive from releasing more texts until the case is decided.