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Judge Markus should have been removed from hearing MVSD cases a long time ago



Published: Fri, February 22, 2002 @ 12:00 a.m.



Would that Judge Richard M. Markus could get half as incensed about public officials who betray the public trust as he seems to get over press coverage of their shenanigans.

Judge Markus took time the other day to accuse the press of not understanding what they're covering and of distorting the facts.

This came as he was letting Frank DeJute, a former member of the Mahoning Valley Sanitary District board off the hook for about $2 million in MVSD money that the state auditor's office has said was misspent.

What we know: We don't presume to understand everything, but we understand this: Markus should have been removed from all MVSD cases in October 2000 after he gave former MVSD Director Edward A. Flask a slap on the wrist on criminal charges stemming from Flask's MVSD service.

This time, Markus granted summary judgment to DeJute on $1.96 million of a $2.4 million lawsuit filed by the state attorney general. The civil suit against DeJute and a pending companion suit against Flask contend that the two MVSD board members paid Gilbane Building Co. of Rhode Island for work that wasn't done. DeJute and Flask are also accused of improperly receiving health, retirement and life insurance benefits from the water agency.

A suit had also been filed against Gilbane for recovery of what the state auditor said were improper payments. A federal judge in October 2001 dismissed the suit against Gilbane. The attorney general is appealing that ruling, but a decision by the U.S. Court of Appeals could take a year.

From where we sit, it looks as if a federal court said that Gilbane Co. couldn't be held liable for accepting money that the company didn't earn. Now Markus has made a quantum leap to say that if the company can't be faulted for accepting the money, DeJute can't be held to account for paying it.

Those seem to be two separate issues, and DeJute's liability should have been determined at trial.

Background: The question of the expenditures dates to 1992, when the MVSD hired Gilbane as construction manager for an improvement project that was expected to cost $50 million.

The original agreement called for Gilbane to receive a flat payment of $1.5 million. That was amended to pay Gilbane $112,500 a month for 27 months of oversight services. A subsequent contract extended the payments through May 1998 and brought its total value to $5.6 million.

But progress got bogged down. Gilbane claimed that the MVSD board caused the delay by failing to award construction and material contracts. Whatever the reason, Gilbane continued to get paid to oversee work that wasn't being done.

State Auditor Jim Petro's office returned a finding for $2 million in public money that was wasted. That seems reasonable to us. It also seems reasonable that Ohio Attorney General Betty Montgomery would attempt to recover the misspent money.

But it is apparently not reasonable in the eyes of Markus.

Markus says the press doesn't understand what he does. We'll take that as a compliment. Sometimes Judge Markus defies comprehension.

The retired Cuyahoga Common Pleas Court judge now hears cases by Ohio Supreme Court assignment.

Seeking 'outside council': Exactly a year ago, Markus was making headlines, interestingly enough, in another public corruption case.

He had presided over the trial of Avon Lake Mayor Vincent Urbin, who was convicted of having an unlawful interest in a public contract.

In a bizarre twist, Judge Markus had a parole officer write letters to the editors of the Avon Lake Press, The Plain Dealer, the Chronicle-Telegram in Elyria and The Morning Journal of Lorain, "to inquire whether you have any comment or recommendation regarding an appropriate sentence."

None of the editors took him up on his once-in-a-lifetime offer. As Louis Katz, a professor at Case Western Reserve University Law School, told The Associated Press, the judge's job is to sentence, the job of the press is to comment.

One might think Judge Markus would know that. One might think that his not knowing it would have inspired Thomas Moyer, chief justice of the Ohio Supreme Court, to remove Markus from other corruption cases. One would be wrong.

Pleas unheard: Moyer had earlier disregarded a public outcry and calls by this newspaper to remove Markus from the MVSD cases after Markus gave Flask a slap on the wrist in a criminal case.

Flask had pleaded guilty to nine criminal charges stemming from his tenure on the MVSD board and faced as much as three years in state prison. Special Prosecutor Victor Vigluicci urged Markus to impose the maximum. He noted that Flask, "admitted to using his office to authorize or secure public contracts in which he had a financial interest. He did this not once, but scores of times" over six years.

Markus gave Flask a sentence of 90 days, to be served in the Trumbull County Jail.

And it was then that he demonstrated a bias that should have gotten him removed from subsequent legal proceedings involving the MVSD. He characterized Flask's crimes as victimless, ignoring the 300,000 Mahoning Valley water users who were forced to pay the price of Flask's high living.

Still, Markus wouldn't remove himself from the civil suit against Flask. He even declined to remove himself from the DeJute case when DeJute wanted a new judge. In what now appears as an ironic pleading, DeJute asked Moyer to remove Markus from the case because he feared that, "Judge Markus is determined to prove his judicial toughness, even at the expense of my right to due process. & quot;

"Toughness" and "Judge Markus" are words that shouldn't appear in the same sentence. Just as Judge Markus and DeJute and Flask should never again be in the same courtroom.




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