By PETER H. MILLIKEN
The closed-door process by which a panel of three retired judges decides whether to suspend Ohio public officeholders charged with job-related felonies is shrouded in secrecy until the panel makes its final determination, state and local officials say.
The case of Mahoning County Auditor Michael V. Sciortino, who is charged with 16 felony counts, is now before such a panel, appointed June 13 by Chief Justice Maureen O’Connor of the Ohio Supreme Court.
Bret Crow, a top court spokesman, said, however, state law doesn’t permit him to disclose even when and where the panel deciding Sciortino’s fate is scheduled to meet.
Crow said the law doesn’t permit him to release any information until the panel makes its final determination.
Some aspects of the law are clearly stated in the text of the statute, however.
If Sciortino is suspended, it will be with pay, but, if he’s convicted of any felony, the law says the county may sue civilly to recover money paid to him between his suspension and his conviction. Sciortino earns $89,109 annually.
County Prosecutor Paul J. Gains said the suspension-pay recovery provision conflicts with another Ohio law that says the salary goes with the job title, which Sciortino would retain even during any suspension.
“I’m not sure that Section 3.16 [of the Ohio Revised Code] would
actually withstand constitutional muster,” Gains said. “It’s kind of an odd statute.”
If the panel makes a preliminary determination to suspend him, Sciortino is entitled to a hearing, at which his lawyer, John Juhasz, may accompany him.
Juhasz, however, wouldn’t be permitted to advocate for Sciortino or present evidence or examine or cross-examine witnesses in that hearing.
Atty. David Betras, chairman of the Mahoning County Democratic Party, objects to the process as outlined in a 2005 enactment of the state Legislature.
“It smells because, in this country, you have a presumption of innocence, and this totally takes that concept and sets it on its head,” he said.
“Nothing that the government does should be a secret closed-door process,” except for national-security matters, Betras said.
“If you’re talking about removing a public official, the public has a right to know all about it,” he said, adding that he believes the process “robs the people of their suffrage.”
State Rep. Robert Hagan of Youngstown, D-60th, who was a state senator when the law passed in 2005, expressed a similar view.
“I have a big problem any time government performs any meeting in secret,” Hagan said. Any such closed-door proceeding “reinforces the mistrust in government.”
“I want to make sure that people regain their trust in government, and this does nothing but reinforce that mistrust,” Hagan added.
When the bill passed, “The legislative intent was to protect public officials from the critical eye of the public,” Hagan said.
“I’m not happy with secrecy in government,” Gains said.
The law’s sponsor, then-Rep. Tim Schaffer, R-Lancaster, who is now a state senator, did not respond to a request to comment.
The judicial panel in Scortino’s case has 14 days from its appointment to make a preliminary determination, after which Sciortino will have 14 days to contest that finding and request a hearing if the initial determination is suspension.
The hearing then must take place within 14 days after Sciortino requests it.
After the hearing, the judicial panel makes its final determination.
If Sciortino doesn’t timely contest the initial determination, it automatically becomes the panel’s final order.
Sciortino was indicted by a Cuyahoga County grand jury last month on one count each of money laundering and engaging in a pattern of corrupt activity, two counts each of conspiracy and bribery, four counts of tampering with records, and six counts of perjury.
The indictment against Sciortino alleges he participated in a criminal conspiracy to impede the move of Mahoning County’s Department of Job and Family Services from rented quarters at the Cafaro Co.-owned Garland Plaza on Youngstown’s East Side to Oakhill Renaissance Place.
Oakhill is the former Forum Health Southside Medical Center, which the county bought in U.S. Bankruptcy Court in 2006 and to which JFS moved in 2007.
Also indicted in the case are Youngstown Mayor John A. McNally, who is a former county commissioner, and Atty. Martin Yavorcik, an unsuccessful candidate for county prosecutor in 2008.
Since the charges against McNally pertain to his role as a county commissioner and not to his role as mayor, he is not subject to the suspension process prescribed by state law.
The three-judge suspension process has been used four times in Ohio, with a clerk of courts resigning an hour before the hearing she requested; two sheriffs consenting to suspension; and a township trustee successfully fighting suspension.
Shelby County Sheriff Dean Kimpel didn’t object to the three-judge panel’s preliminary decision to suspend him Nov. 2, 2011, so there was no hearing, and the suspension took effect.
Kimpel pleaded guilty to misusing a state computer system, agreed to resign and never work again in law enforcement, and was sentenced to two years’ probation and fined $1,000 in June 2012.
Deborah K. Smalley, Fairfield County clerk of courts, resigned last December, an hour before her scheduled hearing before the three-judge panel, which had made a preliminary decision to suspend her.
Smalley awaits an Aug. 18 jury trial on charges of engaging in a pattern of corrupt activity, theft in office, tampering with records and evidence, receiving stolen property, identity fraud and having an unlawful interest in a public contract.
Athens County Sheriff Pat Kelly withdrew his appeal of a preliminary suspension order from the panel and consented to a suspension in March.
Kelly awaits a jury trial beginning Sept. 29 on charges of theft, theft in office, engaging in a pattern of corrupt activity, money laundering, tampering with records and evidence, perjury, obstructing official business and dereliction of duty.
Earlier this month, a three-judge panel, which had issued a preliminary decision to suspend E. Clark Swank, a trustee of Worthington Township in Richland County, decided not to further suspend him after he appeared for a hearing.
Swank, who was charged with two counts of theft in office for allegedly using $4,069 worth of township diesel fuel in his personal truck without the township’s permission between Nov. 1 and Dec. 31, 2012, got the judicial panel to unanimously cancel his suspension.
That was after he presented affidavits from his fellow trustees stating their belief that trustees were permitted to use township fuel in their personal vehicles for township business, instead of being reimbursed by the township.
In their final determination, the judges said they hadn’t been asked to decide Swank’s guilt or innocence, but they concluded the charges against Swank “will not adversely affect the administration and performance of his duties as a Worthington Township trustee or adversely affect the rights and interests of the public.”
Judge James DeWeese of Richland County Common Pleas Court took the criminal matter under advisement after a nonjury trial that ended Friday. He will file his written verdict at a later date.