CINCINNATI (FOX19) - Cincinnati Vice Mayor Christopher Smitherman says the referral for criminal prosecution against five of his fellow City Council members who admitted to discussing public city business privately via text messages and emails is “a very, very sad day for the city.”
The self-described “Gang of Five" are P.G. Sittenfeld, Chris Seelbach, Greg Landsman, Tamaya Dennard and Wendell Young.
They now face possible criminal prosecution after State Auditor Keith Faber made a referral for the misdemeanor crime of dereliction of duty.
It’s only a recommendation. A prosecutor would decide whether to take it to a grand jury.
A special prosecutor was appointed Thursday, a former assistant federal prosecutor, Patrick Hanley.
The five council members admitted in a March 7 settlement to violating Ohio’s Open Meetings Act by conducting public city business privately via text messages and emails, a copy of the court document shows.
Ohio Ethics Commission Executive Director Paul Nick told FOX19 NOW Thursday they have been "communicating with the auditor’s office on matters within our authority.”
He declined to elaborate or comment further.
The five did not respond to requests for comment Thursday or could not be reached. We have also sent five individual written requests for comment to their offices at City Hall and will update this story once we hear back.
Smitherman said the special prosecutor needs to do a “deep dive." He is calling for Hanley to depose the Gang of Five about their private verbal discussions to determine the full extent of their Sunshine Law violations.
“It’s morally despicable and the prosecutor should review it seriously and do a deep dive and the only way the public will know a deep dive has happened is because people were deposed. No one knows what they were discussing in those private conversations they had at Coffee Emporium and phone calls and conference calls. They’ve never been asked, and I want them asked.
“I want to know what votes I was taking on the floor of council that were a farce because five members of council decided to undermine their oath. They undermined the oath they made to the citizens of Cincinnati when they were sworn into office because as soon as they were sworn into office they formed a gang to undermine the process. They made a farce out of the citizens of Cincinnati because that’s who elected us."
Smitherman also called for the special prosecutor to get all the text messages that have yet to be released, that he says “are in the bowels of the law department.”
These are ones the council members exchanged with third parties - and they must be released and examined to determine if any other laws were violated in those discussions, he said.
These texts are the subject of a federal lawsuit filed by anonymous plaintiffs who sued the city over the release of more of council’s texts.
They claim their constitutional rights were violated and their privacy was invaded in the messages sent last year to the “Gang of Five" that the city already released.
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.
“The public still does not understand," Smitherman said, “there are other text messages that have not been released that are in the bowels of the law department right now and those text messages, some of them, are related to third-party conversations that were had about public business, i.e. the federal lawsuit i.e. Jane Doe, i.e. John Doe, and so there is someone out there who is concerned about conversations they had with Gang of Five about public business. They are not personal, they would not be in federal court fighting for that.”
Smitherman called it “outrageous” the Hamilton County Democratic Party issued a statement Thursday that chalked the referral for criminal prosecution up to politics.
The statement read: “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.”
The Gang of Five are all Democrats; the state auditor and current Hamilton County prosecutor, Joe Deters, are Republicans.
Smitherman has announced he intends to run for mayor in 2021 as an Independent.
So far, he is the only one who has filed any papers indicating a mayoral run.
Sittenfeld has not announced, but it is expected he will.
Like Smitherman, he is term limited from campaigning for council in the next election.
“For the Democratic Party to say this matter was resolved because they thought it was resolved is outrageous," Smitherman said. "It doesn’t matter if you are a Democratic or Republican or Independent or Charterite. You have to follow the law you swore under oath to uphold.
“It doesn’t help attacking the state auditor and attacking anybody other than looking in the mirror and saying ‘I gotta own this. I undermined the trust of the public I serve.' They would have never admitted to any of this if they weren’t caught. If legal action had not been taken, I believe they would still be engaging in this behavior.”
Finally, Smitherman reiterated a proposal he made earlier this year that the Gang of Five should repay taxpayers $176,000 the city spent on the case.
Those costs include a $101,000 lawsuit settlement over their secret communications and another $75,000 in outside attorneys fees.