The city auditor's lawyer is asking the judge to reconsider dismissing the charge against his client.
By PEGGY SINKOVICH
VINDICATOR TRUMBULL STAFF
WARREN -- A visiting judge has dismissed a misdemeanor dereliction of duty charge against the city's water department manager.
Judge Thomas Campbell ruled Tuesday that the charge should be dismissed because, according to the Ohio Revised Code, it is not Rick Griffing's job as water manager to make sure money is promptly deposited.
If the charge had not been dismissed, Griffing would have had to go to trial Thursday, court officials said.
"I'm very pleased and I believe the judge made the right decision," said Phil Vigorito, Griffing's lawyer.
Prosecutors accused Griffing of not making sure money from the city water department was placed in the bank at the end of each business day.
"To impose criminal liability for dereliction of duty, the state must point to an express underlying statutory duty imposed upon the defendant," Judge Campbell's ruling states. "In this case the state can point to no express statutory duty imposed upon the defendant."
The ruling further states that according to the ORC, it is the safety-service director's duty to make sure the money is deposited promptly.
Prosecutors have said Safety-Service Director Fred Harris delegated the duty to the water department director, Emmanuel Michelakis, who delegated the duty to Griffing, the manager.
"Even if the court were to accept the proposition that delegation of those statutory duties was possible, some formal legislative act of delegation must clearly appear in the record," the judge stated in the ruling. He added that he has been provided no evidence of any city ordinance or other formal act of that delegation.
In April, Griffing and his brother, David, city auditor, were both charged with one misdemeanor count of dereliction of duty. The charges came after a yearlong investigation of the water department by the FBI and city police.
Last year, the state auditor's office issued a finding for recovery of $26,036 against Debra Dunewood, the department's former head cashier.
She has not been charged with a crime. She was approved for a disability retirement in February 2001.
The audit says Dunewood sometimes delayed depositing money, showing a potential scheme to divert cash and delay deposits until sufficient subsequent receipts were accumulated to cover the amount diverted.
The city recovered the funds through its bonding company.
Atty. Sam Bluedorn, who represents David Griffing, is asking the court to reconsider dismissing the charge against his client. Bluedorn had asked in July but at that time the judge refused.
Bluedorn also states that it is not the auditor's job to be the custodian of all monies.
Judge Campbell said he did not know when he would rule on the new request. David Griffing's trial is set for Sept. 19.
Special Prosecutor Robert Johnson stated in a court motion, however, that it is David Griffing's duty to "supervise and watch the money."
Johnson also stated in the motion that employees of the auditor's office informed David Griffing about the late deposits at the water department, and that he did nothing to correct the problem.