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MAHONING VALLEY DeJute, a former MVSD official, seeks dismissal of state's suit



Published: Mon, November 26, 2001 @ 12:00 a.m.



The former director points to a federal judge's dismissal of a lawsuit against a Rhode Island contractor.

By DENISE DICK

VINDICATOR TRUMBULL STAFF

WARREN -- A former director of the Mahoning Valley Sanitary District has asked a judge to dismiss the Ohio attorney general's lawsuit against him.

Frank DeJute sent a copy of the motion to dismiss Friday to Arthur J. Marziale, assistant attorney general.

The state attorney general's office filed the lawsuit to recover $2.4 million. The case is set to begin next month in Trumbull County Common Pleas Court.

The accusation: The lawsuit accuses the former MVSD director of overpaying a contractor in charge of a $50 million capital improvement project at the district.

In his motion to dismiss, DeJute points to a federal judge's dismissal of the lawsuit against the Gilbane Company. DeJute is representing himself.

Gilbane, based in Rhode Island, is the contractor that handled the capital improvement project.

The attorney general filed separate $2.4 million lawsuits against DeJute; Edward Flask, another former MVSD director; and the Rhode Island company.

Gilbane's case: Judge George C. Smith of U.S. District Court in Columbus dismissed the suit against Gilbane last month, saying the auditor's findings for recovery against the company don't describe illegal expenditures of public money.

The state is appealing the dismissal.

"Obviously since we disagree with Judge Smith's decision and we're appealing it, we oppose the motion to dismiss," said Joe Case, a spokesman for the Ohio Attorney General's office. "We think the case should go forward until a higher court can make a determination on Judge Smith's decision."

Flask's trial was postponed last month after he filed for federal bankruptcy protection shortly before the case was set for trial.

The lawsuits by the attorney general's office were based on a 1997 special audit of the district by state Auditor Jim Petro.

DeJute asks for the case against him to be dismissed because Judge Smith's ruling was 'made so close in time to [DeJute's] trial,' he wrote in his motion.

"It is submitted that this court cannot ignore the federal court's opinion and order which considered the same cause of action, facts and law and found that the case must be dismissed as a matter of law," DeJute said in his motion. "This court should do the same."

Allowing the case to proceed in light of the federal court's opinion "would further waste taxpayers' money and would be an affront to our system of justice," he said.

Judge's removal: DeJute also sent a letter last week to Chief Justice Thomas Moyer of the Ohio Supreme Court, saying visiting Judge Richard Markus should be removed from his case because the judge's decisions have compromised DeJute's right to a fair trial.




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