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DEJUTE CASE Judge to decide on summary judgment



Published: Wed, February 13, 2002 @ 12:00 a.m.



The judge hearing the case expects to make a decision before the trial begins Tuesday.

By DAVID SKOLNICK

VINDICATOR POLITICS WRITER

WARREN -- The judge overseeing a $2.4 million lawsuit filed against Frank D. DeJute by the Ohio Attorney General's Office is considering whether to grant summary judgment to the former Mahoning Valley Sanitary District board director on a majority of the suit.

"I'm not sure how quickly I'll rule, but I hope to get it done before the trial begins Tuesday," said visiting Judge Richard M. Markus, who is handling DeJute's case. "We'll do the best we can."

The judge does not anticipate a delay in the start of DeJute's trial.

The attorney general filed separate $2.4 million lawsuits against DeJute of Niles, Edward A. Flask of Poland, another former MVSD board director, and the Gilbane Building Co. of Rhode Island, which served as construction manager on the water agency's $50 million capital improvement project.

Accusations: The lawsuits contend DeJute and Flask improperly paid Gilbane for construction work not performed at the MVSD, which makes up more than 97 percent of the $2.4 million being sought by the attorney general.

Also, the DeJute and Flask suits claim the two improperly received health, retirement and life insurance benefits from the MVSD.

DeJute is seeking summary judgment for the Gilbane counts based on a federal judge's dismissing the case against the Rhode Island company, saying the payments were not illegal.

In a motion, the attorney general's office wrote that "a state court is not bound by the determination of a state law matter by a federal court. Indeed, this court noted that it had some significant doubt that it would agree with" the judge's decision.

Also, the attorney general's office wrote that DeJute's role as an MVSD director "places him in a position of public trust different than Gilbane ... Ohio law imposes upon a public official like the defendant a very high duty for the proper expenditure of public money."

Attorney General Betty Montgomery, in Youngstown for the Mahoning County Republican Party's Lincoln Day dinner, said the MVSD cases "have been frustratingly long in coming to the court. But we fully anticipate going to trial Tuesday."

Distinction: DeJute agrees there is a distinction between his responsibilities as a board director and Gilbane's, but that distinction is not relevant to his case.

Judge Markus raised the possibility of the federal judge's decision in the Gilbane case playing a factor in DeJute's suit in January. The judge wrote that the federal decision "may bar a claim here which requires the plaintiff to prove the same issue."

The judge says he is considering DeJute's motion and the attorney general's response, but he has other responsibilities as a visiting judge that are taking up his time.

Flask filed for bankruptcy protection to avoid facing his $2.4 million lawsuit. The attorney general's office has asked a federal judge to allow it to move ahead with its civil lawsuit despite Flask's filing. A trustee who is determining whether to permit Flask's bankruptcy filing to move ahead plans to issue a final report on Sept. 30.

"I only have 10 more months [as attorney general] and I'd very much like to get these things done," Montgomery said. "We need to do everything we can to process these cases."

skolnick@vindy.com




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