CINCINNATI (FOX19) - Cincinnati City Councilwoman Tamaya Dennard is under subpoena to appear next week before a Hamilton County grand jury in connection with the potential criminal prosecution related to the Gang of Five secret text messaging case, according to her lawyer.
The subpoena, served to Dennard Thursday, orders her to report to the grand jury at 1 p.m. Tuesday, said Erik Laursen.
This development comes as a special prosecutor investigates whether Dennard and four other members of Cincinnati City Council who settled a civil lawsuit last year regarding private communications about city business via text messages and emails should be criminally charged with misdemeanor dereliction of duty.
Laursen confirmed the subpoena was from the special prosecutor, Patrick Hanley. He said the subpoena does not state why she is requested to appear or instruct her to bring anything, such as her phone or documents.
Laursen said he did not think criminal charges were warranted. When we asked him if Dennard would appear before the grand jury next week, he responded that in general he would never advise anyone to ignore a grand jury subpoena.
He said he was trying to reach Hanley Friday and hoped to talk with him. He said he may add to his comments later in the day if that occurs.
The so-called “Gang of Five” - P.G. Sittenfeld, Chris Seelbach, Greg Landsman, Wendell Young and Dennard - admitted to violating the Ohio’s Open Meetings Act as part of the settlement, reached nearly a year ago. court records show.
Thousands of their secret communications were released, they were chastised in open court by the judge who approved the settlement and then publicly apologized, mostly through their social media accounts.
But then Ohio State Auditor Keith Faber announced he was investigating the matter as part of his annual audit of the city. Auditors can refer matters for prosecution and issue findings for recovery if they determine public money has been misspent and should be repaid.
Last month, Faber made a referral, or recommendation, to the city of Cincinnati for criminal prosecution of dereliction of duty for the “Gang of Five."
Allie Dumsky, spokeswoman for Ohio Auditor Keith Faber’s office, confirmed Thursday Dennard was served with a subpoena by a process server with the Ohio State Auditor’s Office. The subpoena was from the special prosecutor who is handling the referral.
The City Solicitor’s Office and Hamilton County Prosecutor’s Office both have conflicts of interest in the case, according to Prosecutor Joe Deters. City attorneys said they asked several other city solicitor offices in Ohio handle the referral, but all declined.
So the special prosecutor was recently appointed by a Hamilton County judge to handle it.
The settlement for the lawsuit cost the city $176,000 in total: $90,000 of which went to the law firm that launched the civil suit on behalf of an anti-tax activist.
Another $10,000 paid a statutory forfeiture because Young said he purposely deleted his text messages.
Deters convened a grand jury in late November 2018 after discovering Young’s texts were gone and Dennard said she lost hers when her phone was damaged at a pool.
Ultimately, Deters turned the case over to a county judge to handle, saying civil court was the more appropriate place to handle the matter.
The city paid $75,000 in legal fees from outside lawyers to represent the city and the five council members in the suit, leaving the Open Meetings Act violation fine at $1,000.
Vice Mayor Christopher Smitherman is attempting to pass a motion requiring the Gang of Five to repay the city - ultimately taxpayers - for those legal fees. He has been unsuccessful so far due to quorum rules.
He is now asking the City Solicitor’s Office to seek the next steps the city would be able to take under current Ohio law and the city’s charter to achieve this - or if it would take an amendment of the city’s charter.
Meanwhile, it remains unclear if the auditor’s office plans to issue findings for recovery against the Gang of Five.
But auditor’s officials have not said if they plan to issue findings for recovery or when they will complete and release city’s most recent audit. The last one to come out was nearly a year ago, in March 2019.
According to FOX19 NOW’s media partners at the Enquirer, Dennard’s subpoena service came with a bit of cat-and-mouse, as Dennard asked to be excused from the council meeting and slipped out a side door.
Her attorney, Erik Laursen, tells FOX19 NOW Dennard did not evade or try to evade the process server.
Laursen said she arranged with him to meet with the process server at Laursen’s office as soon as Dennard found out he was at City Hall. She excused herself from the council meeting, which was about to start, and left to go to Laursen’s office.
FOX19 NOW reached out to other members of council Thursday to see if they also have been served, with Landsman responding he had not.
We are continuing to reach out to them Friday and will update this story when we hear back.