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Dellick's lawyer denies conflict of interest

Judge recuses himself, special prosecutor sought, but magistrate will stay on case to represent son

Sunday, November 3, 2013

By Peter H. Milliken


Atty. Samuel Amendolara, who represents John Dellick in an aggravated-assault case, has two Mahoning County jobs and his private law practice, but he doesn’t believe his multiple roles present any conflicts of interest.

Although Amendolara continues to be John Dellick’s defense lawyer in Mahoning County Area Court in Canfield, county Prosecutor Paul J. Gains said he’ll file a request Monday that the county’s common pleas court judges appoint an assistant Ohio attorney general as a special prosecutor for the Dellick case.

Gains said he’s making that request to avoid any appearance of impropriety or any suggestion that John Dellick is getting any favoritism or any harsher treatment than other defendants because Dellick’s mother is a judge.

John Dellick is charged with ramming another man’s car while driving during an Oct. 18 Canfield Township altercation.

Since Aug. 31, 1993, Amendolara has been a magistrate in juvenile court, where he now works for Judge Theresa Dellick, mother of John Dellick. There Amendolara is paid $13.60 per hour for 30 hours of work each week, for a total of $21,216 annually, according to county payroll department records.

In his other county position, he became an attorney for the county mental health board July 1, 2004. There, he is paid $40 per hour for nine hours a week, for a total of $18,720 annually.

As a county employee, he receives family-plan heath care coverage, and he gets credit toward his retirement in the Public Employees Retirement System.

Judge Scott Hunter, who normally presides in Canfield court, recused himself from the John Dellick matter, citing the judicial canons of ethics, and requesting appointment of a visiting judge.

The Ohio Supreme Court has responded by appointing Judge Michael Kevin Nunner as the visiting judge. He retired in 2012 as a judge of the Harrison County Common Pleas Court.

Though Gains is seeking an outside prosecutor and the Hunter has recused himself, Amendolara has thus far rejected the notion of stepping away from the case.

If he perceived a conflict, he’d decline the case, Amendolara said.

“John Dellick is entitled to have the lawyer of his choice and to good, competent legal representation,” Amendolara said. “I don’t see where there’s even an appearance of conflict.”

Amendolara noted that John Dellick is an adult, who, if bound over and indicted, would be prosecuted in the general division, not the juvenile division, of common pleas court.

Judge Dellick did not respond to a request to comment for this story.

Rick Dove, secretary of the Board of Commissioners on Grievances and Discipline, which handles discipline for Ohio lawyers and judges, said magistrates are considered judges for purposes of the Ohio Code of Judicial Conduct.

That code says full-time magistrates may not engage in private law practice. Part-time magistrates, however, may have private law practices, but may not practice law in the court where they preside as magistrates, Dove said.

Dove said, however, the code doesn’t specify a set number of hours per week as the line of demarcation between full- and part-time magistrate status, leaving that distinction to the individual courts.

Amendolara said he is a part-time magistrate, so he is allowed to have a private law practice.

Although the full-time vs. part-time distinction may be murky, county commissioners approved a resolution Oct. 22 changing the definition of a county employee eligible to receive health insurance from one working 32 or more hours a week to one working 30 or more hours a week.

The resolution said the change was being made in conjunction with the Affordable Care Act, which sets 30 hours a week as the threshold for the mandate for employers of 50 or more people to either provide coverage or pay a penalty for not doing so beginning in 2015.

As to whether it is permissible under the Code of Judicial Conduct for a magistrate to represent the son of the juvenile court judge he works for in an adult criminal matter in the same county, Dove said: “I can’t comment on the propriety of that at this time.”

Robert Lawry, director of the Center for Professional Ethics and professor emeritus of law at Case Western Reserve University, said he doesn’t believe Amendolara’s representation of John Dellick violates the Code of Judicial Conduct.

He said, however, Amendolara’s representation of his boss’ son is probably not desirable.

“If you wanted to be very careful, you simply would not have that representation take place,” Lawry said.

Some people might think Judge Dellick is trying to influence the Canfield court proceedings by having her magistrate represent her son, Lawry said, but the professor added he sees no evidence this is actually happening in this case.

Lawry also observed that the prosecutor might object to Amendolara’s representation of the judge’s son.

Ronald Marian, mental health board executive director, said he does not see a conflict between Amendolara’s role as a juvenile court magistrate and his role with the mental health board.

“We don’t contract with the juvenile justice center,” Marian explained. “He works for us nine hours a week for adults” and does not represent the mental health board in juvenile court, Marian added.

Amendolara’s primary responsibility for the mental health board is to represent the board in adult psychiatric commitment cases in the county’s probate court, with some hearings in the psychiatric ward at St. Elizabeth Health Center, Marian said.

Marian said, however, Amendolara would have to recuse himself as a magistrate and refer to another magistrate any case where a client of the D&E Counseling Center appears in juvenile court.

That’s because the mental health board funds D&E (Diagnostic and Evaluation) to provide mental health services to children and adolescents, Marian explained.

“The safest way would be to recuse,” Amendolara said. “I’d probably recuse.”

Amendolara said he would recuse himself if an adult was to appear before him in a child-custody case in juvenile court after that adult was the subject of a psychiatric commitment hearing, in which Amendolara represented the mental health board.

“I don’t see any direct evidence of a conflict of interest. What you worry about is whether his independent professional judgment would be compromised by his activities in one of those spheres or the other,” Lawry observed.

Dove discussed the issues concerning Amendolara “in the abstract ” but said he didn’t have enough information to discuss Amendolara specifically.

“There could be issues depending on the degree of involvement between the juvenile court and the mental health board,” Dove said. “There certainly is the possibility of some conflict,” between a magistrate’s court role and the mental health board role.

Dove and Lawry said a juvenile court magistrate who also works for the mental health board must either recuse himself from a case involving a client of a county-funded mental health agency or disclosure the potential conflict.

They also said, however, the matter may be complicated by the magistrate’s not knowing whether a defendant appearing before him in a juvenile court matter is also a client of an agency funded by the mental health board.