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Gains sought independent prosecutor in Lyden matter
YOUNGSTOWN
Mahoning County Prosecutor Paul J. Gains asked for — but was denied — a special prosecutor to probe admissions by then-county sanitary engineer J. Robert Lyden that he used county time and a county vehicle and telephone to pursue a personal relationship with a heroin-addicted woman.
The woman is charged with extorting money from Lyden.
“I just wanted a second opinion,” Gains said Thursday, adding that he wanted to avoid any appearance of a conflict with his representation of the county commissioners and sanitary engineer’s office.
“I wanted someone else to take a look because he’s an appointed official,” Gains said of Lyden.
In his July 17 letter requesting an independent special prosecutor, Gains said Ohio Atty. Gen. Mike DeWine had designated Margaret Tomaro as the assistant attorney general who would assist the Mahoning County grand jury with the matter “involving alleged improprieties of Robert Lyden.”
However, Judge Maureen A. Sweeney, administrative and presiding judge of Mahoning County Common Pleas Court, denied Gains’ request in a July 26 judgment entry, saying: “The court has reviewed the motion and finds no conflict of interest exists based upon the presentation of the prosecutor.”
Lyden left his job as sanitary engineer Aug. 24 at the request of John A. McNally IV, chairman of the county commissioners. The sanitary engineer is appointed by and serves at the pleasure of the county commissioners.
Lyden has not been charged with any crime, but Gloria J. Prottengeier, 37, of Salem, is charged with extorting money from Lyden.
Prottengeier’s case was bound over from Canfield court in April, but she has signed a waiver of the 60-day time limit for presentation of her case to the county grand jury.
On Sept. 19, 2011, Lyden told Canfield police that he paid Prottengeier for sex and does not know why she denied that.
Police said Lyden admitted meeting with her in his county-issued vehicle, speaking with her on his county-issued telephone and meeting with her on county work time.
Police said they charged Prottengeier because she admitted extortion.
Police said they filed the charge despite Lyden’s request that the case be closed without the filing of criminal charges, if Prottengeier agreed not to call him anymore, because he feared discipline by the county if the criminal case against her went forward.
“We didn’t hold back. You’re not going to come into Canfield and commit a third-degree felony and not get charged,” said Canfield Police Chief Chuck Colucci, referring to the Prottengeier matter.
When Judge Sweeney declined Gains’ request for a special prosecutor, Gains said the case came back to him.
Gains said he, Colucci and James Ciotti, the local agent in charge for the Ohio Bureau of Criminal Investigation, agreed that no criminal charges against Lyden were warranted in this matter.
“It’s not like he was stealing money. He abused the use of his [county-issued] vehicle and cellphone,” thereby violating county policy, Gains said.
“He doesn’t punch a clock. He sets his own hours. It doesn’t rise to a criminal level,” Gains said of Lyden, who was on call and was permitted round-the-clock use of his county vehicle.
“We believe, at this time, it does not rise to the level of a criminal offense,” Colucci said of Lyden’s behavior, declining to publicly say why he thinks that’s the case.
Jill Del Greco, a public information officer for the Ohio Attorney General’s Office, of which BCI is a part, said Ciotti discussed the case with Gains, but he didn’t tell Gains criminal charges were not warranted.
BCI investigates cases upon request from a prosecutor and shares the results with the prosecutor, but prosecutors decide whether a crime was committed, she said. “We are not involved in this case,” she said.
Del Greco said Ciotti was not authorized to discuss the Lyden case with the media.
Shortly after Lyden made his admissions to police, Gains said his assistant prosecutor, Nicholas Modarelli, noticed the Prottengeier-Lyden case in a compilation of reports received by Canfield police, inquired about the report, and urged a thorough investigation.
“We certainly didn’t want to take these allegations lightly,” Gains said, explaining why he didn’t request a special prosecutor until July.
During the fall of 2011, Colucci said Detective Brian McGivern twice called the county commissioners’ office concerning the case and left messages for Commissioner Anthony T. Traficanti, who Colucci said did not respond to them.
“I do not recall ever receiving a message from the detective,” Traficanti said. Had he gotten such a message, Traficanti said he would have returned the detective’s call and discussed the matter with the county prosecutor’s office.
In another matter, Rachel Livengood, the county’s human resources director, concluded that Lyden appeared to show favoritism toward Dave Sugar Excavating Inc. of Petersburg, a contractor who has installed water supply and sewer lines for the sanitary engineer’s office.
Lyden’s relationship with Sugar may have resulted in Sugar’s receiving expedited payments and access to plans for unbid projects and in design changes in Sugar projects that didn’t follow the customary change order process, Livengood concluded.
When asked why she never interviewed Lyden during her investigation, Livengood said: “I gathered the information the commissioners asked me to look into.” She said she gave the results of her investigation to the commissioners July 12 and let them decide how to proceed from there.
“Lyden’s behavior is unacceptable,” Traficanti said. However, Traficanti said Livengood should have interviewed Lyden. “Usually, that would be protocol,” Traficanti observed.
Lyden complained that he was given no opportunity to justify his actions or deny the charges against him when McNally called him at 8 p.m. and asked him to leave his job 20 hours later.
Traficanti said the commissioners probably should have called Lyden before them in an executive session to give him due process and let him tell his side of the story.