Attorney Martin Desmond wins appeal
YOUNGSTOWN — Three Sixth District Court of Appeals judges have sided with attorney Martin Desmond in an appeal of his firing as an assistant prosecutor with the Mahoning County Prosecutor’s Office.
The decision reverses a decision by the State Personnel Board of Review that dismissed Desmond’s appeal. It also reverses an Oct. 2, 2018, decision by a visiting judge in Mahoning County Common Pleas Court affirming the state board’s decision.
It means the case goes back to the state board “for a determination of the merits of Desmond’s appeal,” the ruling says.
In his State Personnel Board of Review appeal, Desmond claimed he was terminated in retaliation for making a report under Ohio’s whistleblower statute.
The state board dismissed the appeal, saying the facts of his case did not provide Desmond protection under the whistleblower statute.
The law says an employee can appeal termination under the whistleblower statute if he or she files a written report with his or her supervisor or other official that “identifies a ‘violation of state or federal statutes, rules or regulations, or the misuse of public resources,'” according to the ruling.
“We find that Desmond satisfied the threshold requirements of (the law) and Desmond must be given the opportunity to prove his case to the SPBR.”
Prosecutor Paul Gains fired Desmond April 5, 2017, citing violations of various statutes and rules of professional conduct “by engaging in communications with adverse parties; knowingly making himself a witness to a lawsuit against the county, his superior and a fellow assistant prosecutor, uttering false claims of ethical violations against a fellow assistant prosecutor, causing a grievance to be filed against her,” and other things.
Desmond, however, argued that “the real reason his employment was terminated was because he reported misconduct by fellow assistant prosecutor Dawn Cantalamessa in her handling of a murder case and a related obstruction-of-justice case,” the ruling states.
Desmond’s allegation is that a witness in a 2015 murder case Desmond initially handled unexpectedly refused to cooperate after providing a sworn statement. As one of two assistant prosecutors later handling the case, Cantalamessa told Desmond she wanted to charge the witness with obstructing justice and tampering with evidence, the ruling says.
Desmond said that would be improper because the court had not granted the witness immunity or ordered him to testify.
The witness was later indicted on the two charges. His attorney, James Wise, later alleged misconduct, and Cantalamessa dismissed the charges against the witnesss.
Though Desmond’s appeal to the state board raised four issues, the appeals judges reversed the state board’s decision on just the first one.
Desmond turned in a letter to Gains outlining his allegations against Cantalamessa Jan. 27, 2017, about a month after he first raised the issue with Gains, the decision says. Desmond supplied the memo to Gains after Gains advised Desmond not turning it in would be viewed as insubordination, the ruling says.
The State Personnel Board of Review wrongly found that the forced nature of Desmond’s memo to Gains indicated Desmond’s written report was not given in “good faith” and therefore did not meet the whistleblower requirements, the appeals decision says.
Because the appeals judges ruled in Desmond’s favor on the first of his four arguments, it found the other three arguments to be moot.