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Judges uphold decision on use of law firm
YOUNGSTOWN
A three-judge panel of the 7th District Court of Appeals has unanimously upheld Judge Maureen A. Sweeney’s refusal to let Mahoning County Prosecutor Paul J. Gains use a Columbus law firm at county expense to represent the county in a public-records case at the Ohio Supreme Court.
“The common pleas court, exercising its discretion when reviewing an application, can look into practical matters, such as cost to the county,” the appeals panel ruled Friday.
The appeals-court decision was written by Judge Mary DeGenaro, with Judges Gene Donofrio and Joseph J. Vukovich concurring.
Judge Sweeney ruled that it’s Gains’ job to defend the county commissioners in the public- records matter and that the Columbus firm of Vorys, Sater, Seymour and Pease, which charges up to $525 an hour, is too expensive.
In her ruling, the Mahoning County Common Pleas Court judge refused to let the commissioners spend up to $50,000 to hire that firm.
Gains argued unsuccessfully that Judge Sweeney legally has no discretion in the matter of hiring outside counsel in cases such as this, where he and the county commissioners have joined in the application for outside counsel.
Gains also argued unsuccessfully before the appeals panel that he’s entitled to outside counsel because he’s a defendant and a witness in the public-records case.
Gains told the appeals court he’d have to offer the testimony of his subordinate, Gina Bricker, an assistant county prosecutor with detailed knowledge of the matter.
Doing that would cause him to run afoul of a state rule of legal practice that bars a government lawyer participating in a case from putting forth the testimony of another lawyer in the same agency, Gains said.
Gains said he expects to pay out of his pocket for John Kuliewicz, a lawyer from the Columbus firm, to represent him in the public- records case while Gains’ office appeals Friday’s 7th District Court of Appeals’ ruling to the Ohio Supreme Court.
“I’m extremely disappointed that I have to pay out of my pocket to defend actions taken within the scope of my employment — actions which were taken in good faith. That is not the norm in business. That is not the norm in government,” Gains said in response to Friday’s ruling.
The records complaint was filed at the top court as a mandamus action by Atty. John F. McCaffrey of Cleveland, a lawyer for the Cafaro interests, in his effort to compel Gains to fulfill his requests.
In his complaint, McCaffrey said county officials haven’t completely fulfilled his records requests in accordance with the state’s open-records law.
Gains said, however, the county gave McCaffrey more than 8,000 pages, which included everything that he believes is subject to the open-records law.
McCaffrey is one of the lawyers defending the Cafaro interests in the Oakhill Renaissance Place criminal case, in which eight defendants, including the Cafaro Co. and several current or former county officeholders, are charged with conspiring to impede the move of the county’s Department of Job and Family Services from Cafaro Co.-owned rented quarters to the county-owned Oakhill.
In another matter at the Ohio Supreme Court, lawyers for the Cafaro interests have filed a motion to become a party to the case in which the Vindicator and 21 WFMJ-TV are seeking a writ of prohibition to bar visiting Judge William H. Wolff Jr. from keeping pretrial documents sealed from public view or from closing any court hearings.
The Cafaro lawyers contend the bills of particulars detailing the charges against the alleged conspirators “must be kept sealed to protect their fundamental constitutional rights to due process of law and a fair trial before an impartial jury.”
Although he has unsealed many other documents in the case, Judge Wolff has kept the bills of particulars for those charged with conspiracy sealed from public view.
The newspaper and TV station have argued that the remedy for concerns about prejudice due to pretrial publicity is to move the criminal trial to another Ohio county.
Judge Wolff will preside over the trial of the criminal-conspiracy case, which is scheduled to begin June 6 in Mahoning County Common Pleas Court.
Oakhill is the former Forum Health Southside Medical Center, which the county bought in 2006 and to which JFS moved in 2007.