MAHONING COUNTY Gains to stay out of lawsuit

Gains said there's no proof that his predecessor stole public funds while in office.
By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- Mahoning County Prosecutor Paul Gains said he won't intercede in a taxpayers' lawsuit pending against his predecessor, but that doesn't mean he won't do something else on his own.
"I don't think it's an appropriate lawsuit," Gains said of the taxpayers' action.
The suit was filed in common pleas court in October 2000 by Samuel Moffie of Boardman. It seeks recovery of former prosecutor James A. Philomena's salary and the equivalent of Philomena's health and retirement benefits. It also asks for recovery of all bribes Philomena accepted.
Philomena has pleaded guilty to both federal and state charges related to fixing cases while he was in office from 1990 to 1996. He has served about two years of a four-year federal prison term. After that, he faces an additional two years in a state prison on a bribery and perjury conviction.
Moffie filed the suit on his own after Gains refused to do it on his behalf. At the time, Gains said he wouldn't do it because filing such a suit would hinder the criminal investigations into Philomena's illegal activity.
In a Nov. 21 letter to Gains, Atty. Andrew R. Kasle of Cleveland said it's time for the prosecutor to take the ball from Moffie and run with it. Kasle filed the suit on Moffie's behalf.
"Given the criminal convictions obtained against Mr. Philomena in both federal and state court, there is no reason why your office should not now assume handling this litigation," Kasle wrote.
Gains' response: Failure to do so would "lead to questions about Mahoning County's law enforcement personnel's true desire to pursue exposure and successful prosecutions" of those involved in public corruption, the letter says.
But Gains said Ohio law clearly requires that taxpayers' suits be filed only in cases where there is theft of public money. Neither Moffie nor Kasle have provided proof that Philomena stole public funds, he said.
Gains said he's waiting to receive a transcript of testimony from the recent federal court trial of James Vitullo and Russell J. Saadey.
Vitullo, a former assistant county prosecutor, and Saadey, a former prosecutor's investigator, were accused of conspiring with Philomena and others to fix cases. Vitullo was found innocent; Saadey was convicted and is awaiting sentencing.
Several former lawyers and judges testified during the trial about their roles in fixing cases with Philomena. Gains said he'll review the transcripts and then determine "the most appropriate and fiscally responsible" action to take.
Agencies would get money: If he pursued a civil forfeiture, which is what he called Moffie's lawsuit, any money recovered would go to the investigating agencies, Gains said. In this case, it would be the FBI and the Ohio Bureau of Criminal Identification and Investigation.
"The money wouldn't even come to the county," he said. "Are we going to become a collection agency for the state and federal government?"
bjackson@vindy.com