Executive privilege doesn't apply in matters of public record, a lawyer says.
By JEFF ORTEGA
COLUMBUS -- The Ohio Supreme Court should reject Gov. Bob Taft's claim of executive privilege and allow the Republican to testify under oath in a lawsuit filed against him related to a state investment scandal.
That was the thrust Monday of filings with the high court in a suit brought against Taft by a state senator from the Mahoning Valley. The suit seeks records related to investment controversies at the state Bureau of Workers' Compensation.
"There is no authority for immunizing the governor from being deposed in a legitimate public records action in which the governor is a party and has personal knowledge of the relevant facts," Columbus lawyer Fred Gittes wrote in documents opposing Taft's claim that executive privilege should shield him from being forced to testify in the case.
Gittes is representing state Sen. Marc Dann of Liberty, D-32nd, who is seeking sworn testimony from Taft and other current or former state officials for Dann's lawsuit, which is pending before the high court.
At heart of issue
Late last week, Taft's lawyers filed a motion with the court seeking protection from the depositions, saying that having the governor testify under oath in the matter would violate executive privilege.
Dann's lawyers contend that executive privilege doesn't exist in Ohio law and that the high court has never ruled on the issue.
"Allowing the governor to avoid his duty to assist this Court in evaluating the privileges he demands, places [Taft] above the law and is in conflict with the notions of open government and government accountability, which are the underpinnings of the Ohio Public Records Act and our constitutional democracy," Gittes wrote in court papers.
"It sends a terrible message to the citizens of Ohio at a time when apparent government corruption is increasing public cynicism about their elected officials," Gittes' documents said.
In addition to Taft, Dann and his lawyers are seeking to depose Jon Allision, the governor's chief of staff; James Samuels, a former Taft executive assistant; Mark Nedved, a BWC lobbyist; C. James Conrad, the former BWC administrator; and Brian Hicks, Taft's former chief of staff.
What Dann is seeking
In his suit, Dann is asking the high court to order Taft to turn over memoranda between the governor's office and the BWC, the state's insurance fund for injured workers. The BWC has lost about $300 million in various investments over the past few years, according to published reports.
Dann says he wants to know when or if the governor was informed of the investment losses. The suit seeks copies of weekly reports from Conrad sent to Taft dating back to 1998.
Mark Anthony, a spokesman for the state attorney general's office, declined specific comment on Dann's court filings, referring to Taft's original request to the high court for protection from the depositions.
The depositions "would be cumulative and unduly burdensome and invade the official privilege of these government officers," said the motion filed last week by lawyer Kathleen M. Trafford, the governor's special counsel.
Also, the notice of deposition for Samuels, Nedved, Conrad and Hicks is "ineffective," Taft's motion for protective order said, because none are current employees of the governor's office.
Instead, the attorney general's office offered a deposition of Kate Bartter, Taft's chief policy adviser, to discuss in general the documents Dann is seeking.
The governor's motion for protective order remains pending, a high court spokesman said.