43
Gains argues for counsel before 3 judges
Photo
Prosecutor Paul Gains
YOUNGSTOWN
Mahoning County Prosecutor Paul J. Gains said he’s entitled to outside counsel in a public records case at the Ohio Supreme Court because he is a defendant in that case.
Gains made his argument Wednesday at the 7th District Court of Appeals. The three-judge panel of Judges Joseph J. Vukovich, Gene Donofrio and Mary DeGenaro, will rule at a later date.
Gains appealed the refusal of Judge Maureen A. Sweeney of Mahoning County Common Pleas Court to let the county commissioners spend up to $50,000 to use a Columbus law firm to represent the county in the public records case at the state’s top court.
“What’s the conflict here?” Judge Vukovich asked.
“The conflict? I’m a party. I’m a defendant. I am subject to being deposed and to interrogatories in that mandamus action,” at the top court, Gains replied. Gains added he might even be called as a witness in the case.
Gains also said 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.
“I’m in the untenable position of jeopardizing my law license to avoid a default finding against the county. That is not fair,” Gains said emphatically in court. If he’s forced to represent himself in this matter, Gains said after court: “Either I don’t do my job, or I violate the rules.”
Judge Sweeney said it’s Gains’ job to defend the 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.
Neither Judge Sweeney, nor any lawyer representing her, argued before the appellate court.
Gains argued 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.
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 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.
The criminal trial is to begin June 6 before visiting Judge William H. Wolff Jr. in common pleas court here.
Oakhill is the former Forum Health Southside Medical Center, which the county bought in 2006 and to which JFS moved the following year.