Convoluted court decision weakens right to know



There is no evidence to date that Taft had anything to do with Ohio Bureau of Workers' Compensation's investing $50 million with Tom Noe, a rare coin dealer from Toledo who has long been a major fundraiser and contributor to Republican officeholders and candidates. Noe has acknowledged that up to $13 million is missing from the rare coins fund. Attorney General Jim Petro, a Republican, has accused Noe of stealing $4 million.
State Sen. Marc Dann, D-Liberty Township, who has been relentless in his pursuit of Noe and others involved in & quot;coingate & quot;, has urged the governor to make public all written communication between his office and the BWC and all internal memos pertaining to the investments. Thus far, Taft has tried to block Dann in court.
But in light of his conviction, we would urge him to rethink that strategy.
The public has concluded that & quot;coingate & quot; is about the selling of state government and Taft now needs to get on the side of the angels.
There is no evidence to date that Taft had anything to do with Ohio Bureau of Workers' Compensation's investing $50 million with Tom Noe, a rare coin dealer from Toledo who has long been a major fundraiser and contributor to Republican officeholders and candidates. Noe has acknowledged that up to $13 million is missing from the rare coins fund. Attorney General Jim Petro, a Republican, has accused Noe of stealing $4 million.
State Sen. Marc Dann, D-Liberty Township, who has been relentless in his pursuit of Noe and others involved in & quot;coingate & quot;, has urged the governor to make public all written communication between his office and the BWC and all internal memos pertaining to the investments. Thus far, Taft has tried to block Dann in court.
But in light of his conviction, we would urge him to rethink that strategy.
The public has concluded that & quot;coingate & quot; is about the selling of state government and Taft now needs to get on the side of the angels.
The Taft administration was put in the uncomfortable position last week of having to argue that the Ohio Supreme Court is obliged to create public records law that doesn't appear in the state Constitution and isn't codified in the Ohio Revised Code.
That would seem to be a textbook case of legislating from the bench or practicing judicial activism, something Republicans in the state have been decrying for years. Indeed, Ohio Supreme Court rulings on tort reform and funding for education were held up as examples of the kind of judicial activism that required the removal of Democratic Supreme Court justices from the bench.
So now that six of the seven justices on the court are Republicans, how will they respond to the legal arguments made by Gov. Bob Taft's lawyers that Ohio governors are entitled to the same executive privilege of a U.S. president, even though there's no state law to back-up the theory?
Cause for concern
Strict constructionists and other judicial conservatives might be alarmed by a locution uttered by Chief Justice Thomas J. Moyer. This case, Moyer said during last week's hearing, & quot;would be the first time to write a law [about executive privilege} to bind future governors. Hopefully, we can write a law that is clear enough. & quot;
We thought the legislature writes laws. The court only interprets. If & quot;executive privilege & quot; doesn't appear in the Ohio Constitution or in the exceptions written into the Ohio Public Records Act, there doesn't even seem to be anything for the Ohio Supreme Court to interpret -- especially not a court whose members were elected on pledges that they would not legislate from the bench.
The argument arose in a suit filed by state Sen. Marc Dann, D-Liberty, who wants access to correspondence between Taft and some of his aides and cabinet members regarding activities at the state Bureau of Workers' Compensation. The bureau lost about $300 million on bad investments in recent years, including a large portion of $50 million that was entrusted to Thomas Noe, a Toledo coin dealer and heavy contributor to Republican politicians.
If ever there was a case in which the Supreme Court should find it easy to rule in favor of the public's right to know, it is one involving the question of whether a thief was given back-door access to the public treasury.
The case that challenged Taft's claim of executive privilege was filed by state Sen. Marc Dann, a Liberty Township Democrat. Now Dann., who is running for the Democratic nomination for state attorney general, has joined with state Sen. Tim Grindell of Geauga County, who is running for the Republican nomination for state attorney general, to propose legislation that will limit the shield the Supreme Court gave Taft and future governors.
The Dann-Grindell legislation would properly put the burden for showing that a particular document should be kept from the public on the governor. The legislation is not only correct, its premise -- that Ohio's public records and open meetings laws should be liberally construed toward openness -- had been well established. Until, that is, the Ohio Supreme Court decided to use Watergate as a tape measure for determining what constitutes government of, by and for the people.
Terrence Gasper, former chief financial officer of the Ohio Bureau of Workers' Compensation, has pleaded guilty to state charges that he accepted bribes from rare-coin dealer Tom Noe in return for Noe's receiving investment business.
That alone justifies the public release of every document pertaining to what is being called & quot;coingate, & quot; the $50 million coin investment scheme managed by Noe, a Republican bigwig.
But it is the subtext of the Gasper case that makes it even more important for the press and the citizenry to have access to everything related to the scandal. Why? Because Jim Conrad, former administrator/chief financial officer of the BWC, says he had nothing to do with Gasper's hiring.
Conrad, who resigned in the midst of the ongoing investigation into Noe's ties to the administration of Republican Gov. Bob Taft, the BWC and the Ohio and national Republican parties, contends that Gasper was brought on board by the late Paul Mifsud, who served as the chief of staff to former Gov. George V. Voinovich.
Shed some light
Whatever documents exist in the governor's office that would shed light on Mifsud's decision belongs in the public arena. Indeed, the fact that Gasper was kept on as the chief financial officer when Taft succeeded Voinovich prompts this question: Who interceded on his behalf?
The answer isn't clear because the governor has refused to grant access to records pertaining to the state investment scandal. As a result, state Sen. Marc Dann, D-Liberty Township, has filed a lawsuit against Taft for access to those records.
Last month, the Ohio Supreme Court refused to dismiss the suit, and last week the court ordered the governor to hand over a series of contested BWC-related documents for the justices to review and decide whether they should be made public.
Dann, who is running for state attorney general and has taken the lead in the General Assembly in blowing the lid off coingate, has argued that the governor does not have the kind of executive privilege protection the president enjoys. However, in April, the supreme court ruled that Taft had a limited right to keep the public from viewing certain records.
In its review of the documents from the governor's office, the court should ask: Will their release undermine the governance of the state?
Seeing as how that most of the records are weekly reports that Taft aides gave the governor about the workers' comp bureau, the answer is no.
Dann, who is facing Republican Betty Montgomery, a friend of Noe's, in November, isn't on a fishing expedition. He just wants access to information that will shed additional light on the investment scandal.
That's what all Ohioans should want.
In addition to Chief Justice Moyer, the majority consisted of Justices Maureen O'Connor, Evelyn Lundberg Stratton, Terrence O'Donnell, and Judith Lanzinger.
While Justices Alice Robie Resnick, a Democrat, and Paul Pfeifer, a Republican, agreed with the majority in determining that the records aren't protected, they disagreed with the ultimate denial of those records to Mr. Dann.
"Our in camera review of the records the governor sought to withhold reveals a collection of information so inane, so inconsequential, and so insignificant, that taken together it could not generate one interesting newspaper story," wrote Justice Pfeifer. "But it has generated still another opinion by this court."
He noted some of the communications involved Jim Samuel, Mr. Taft's liaison with the BWC, even though the subjects were not on target with the BWC. He noted Mr. Dann's public records request specifically asked for communications with Mr. Samuel.
Justice Resnick questioned how the majority could demand that Mr. Dann demonstrated a particularized need for records it has determined aren't protected.
"It makes no sense to impose a requirement that arises only by virtue of a privilege that is not applicable," she said.
Today
y the Supreme Court ruled what I have known all along: That the records I requested from Bob Taft are not and never have been privledged.
The Toledo Blade has the story.
Today's decision clearly demonstrates the dire consequences of the original ruling in Dann v. Taft.
Today the court ruled that the governor's assertion of executive privilege over documents I have long sought was not valid, but they have still refused to order the governor to release them because the majority says I did not demonstrate the proper "particularized need."
But they do say that the documents should be made public if a proper public records request is filed.
Therein lies the troubling Catch 22 that is at the heart of the original decision. A corrupt governor can, as Governor Taft did, claim that all documents are subject to privilege in the hope that the court will keep them secret.
A citizen seeking those documents has to hope that the reasons they state for seeking them meet the particularized need standard or they won't be granted access to the documents.
But without seeing them, it is difficult, if not impossible, to know for sure that the rationale stated for gaining access will meet the Court's test.
How, then, can I or any other citizen be certain that the public records request we file will meet the standard?
Short of being Karnack the magnificent and finding the answer in a mayonnaise jar on Funk and Wagnall's back porch, we can't.
But I am going to try--again.
I will, as quickly as possible, file a public records request for these and all other documents that may shed light on the pervasive corruption that afflicts our state.
I am hopeful that this request will lead to revelations about how and why Terry Gasper, the convicted bribe taker, was appointed to the board of the state's Venture Capital Authority and why he remained there for nearly a year after he left the BWC under a cloud. Questions no one in state government can, or want, to answer.
There may be documents related to Tom Noe's activities away from the BWC--something that is a distinct possibility since his tentacles reached into other areas of state government, including our public universities.
I am going to seek this information because the public has an absolute right to know what their elected officials are up to and because the elected officials who are supposed to serve as watchdogs have been asleep at the switch for well over a decade.
I am going to make the request, but it is my hope that Governor Taft will not again, as Justice Resnick said in her dissent, "seriously misrepresent the nature and import of the information," in yet another attempt to shield his administration from public scrutiny.
It is my hope that Governor Taft will not take the people of Ohio down this road again--that he will immediately and voluntarily make these records available to me and to any Ohioan who wants to see them.
For therein rests the most serious problem with the Court's ruling--the creation of a class system in our state in which some people are to be granted access to information while others are denied it, because they are merely citizens.
The fact is that being a citizen should be more than reason enough to be granted access to documents that even this majority says should be public.
Finally, the Court majority did recognize that the executive privilege they established in their initial ruling is overly broad. And while they have, to a minor extent rolled it back, the roadblocks to public disclosure they have erected remain.
We in the legislature must act to overturn this decision and return accountability and transparency to government and we must do it soon.
Posted by Marc Dann at 12:18:38. Filed under: General
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he Ohio Supreme Court has created an executive privilege that allows governors to evade a measure of accountability
In April, the Ohio Supreme Court granted the governor for the first time in the state's history an executive privilege. Bob Taft asked for the privilege in the wake of a request from state Sen. Marc Dann for weekly reports to the governor generated by an aide responsible for business and industry matters. Dann, the Democratic candidate for attorney general, had his eye on the scandal at the Bureau of Workers' Compensation. The court did not grant the governor as expansive a privilege as he wanted. The majority was generous to the executive.
How very generous became plain last week. Once the executive privilege had been established, Dann faced the task of testing the new standard. On Friday, a 5-2 majority ruled the weekly reports did not deserve protection or confidentiality. The justices also concluded that Dann did not deserve access. Why? He failed to show a ``particularized need.'' In other words, he wasn't part of an official investigation, criminal, civil or legislative.
Thus, the governor won in the end. The privilege didn't apply, yet the documents remained beyond the reach of a state senator or a mere citizen.
The court made much of the justices having reviewed all of the documents at issue. Justice Paul Pfeifer, in dissent, colorfully described the reports as ``a collection of information so inane, so inconsequential and so insignificant that taken together it could not generate one interesting newspaper story.'' The majority attempted to be reassuring, insisting the reports had little, if anything, to do with the Bureau of Workers' Compensation, reasoning that as a result Dann had no need to see them.
Put aside that Dann actually made a broader request than the court asserted. What is galling is that the state senator must rely on the assessment of the court majority about the relevance of reports that have been deemed public records. The court should have permitted Dann to make his own evaluation.
In her dissent, Justice Alice Robie Resnick made a telling point by recalling the sequence of events, the governor ``claiming that the executive decision-making process would virtually collapse if the weekly reports at issue were to be released to the public.'' All seven justices agreed that nothing so harmful loomed. Resnick followed the trail of logic, rightly arguing that the governor ``seriously misrepresented the nature and import of the information.''
His reward for deception? The governor deserves credit for signaling this week his willingness now to share the documents with Dann. That said, the privilege has been created, providing a shield for future governors who descend into corruption and attempt to hide the record from public view. State lawmakers should move quickly to repair the damage, properly defining and limiting the executive privilege, repairing, at the very least, the misguided application of ``particularized need.''
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