From REAL journalist Eric J Brewer:

Judge Ronald B. Adrine delivered his “judgment entry” on the affidavits I filed with the Clerk of the Cleveland Municipal Court seeking to cause the arrest and prosecution of council president Kevin Kelley, law director Barbara Langhenry and deputy law director Richard Horvath. Adrine forwarded the affidavits to the city prosecutor for further investigation. He did not agree “at this time” the “facts” in “evidence” supported the issuance of an arrest warrant or summons. He was satisfied that my affidavits met the “good faith” test. Here's a link to his order.https://cloudspace.idrsolutions.com:8181/…/Judg…/index.html…

The “city prosecutor” in this case is one of the defendants in my affidavit, Langhenry. Law directors in Ohio are also municipal court prosecutors. They delegate duties to deputies. I've already pointed out the conflict for her or a city attorney to prosecute my complaint in a previous post. I look forward to a meeting with whoever is assigned prosecutor. It's got to be assigned to one who isn't one of Langhenry's deputies.

Adrine's judgment entry is 12 pages. He put a lot of thought into it but in a partially-flawed direction where I think he got off track. I think a hearing with a request for a production of documents for me to support my allegations would have been appropriately helpful for him as a reviewing official. I'm a former mayor. Adrine's an attorney and a judge who's never served on the other side of the aisle as a mayor or member of council.

I see from Adrine's analysis where I could have added more statutory support and perspective, but the facts as I alleged them were all R.C. 2935.09 "appeared" to require. I provided much more detail and supported my allegations with far more legal citations than attorney Michael Nelson did when he filed an R.C. 2935.09 – 2935.10 affidavit on behalf of the “Cleveland 8.” The “Cleveland 8” sought to cause cops Tim Loehman and Frank Garmback to be arrested and prosecuted for their role in causing Tamir Rice's death.

The essence of my allegations are that the officials involved obstructed the official business of the city by performing duties the law didn't allow, and failing to perform duties the law required of them. The goal of all the deliberate and obstructive acts Kelley engaged in to move the processes of government was to deliver $88 million in funds to renovate the Quicken Loans Arena for Dan Gilbert.

The facts I provided in my affidavit should have led the judge as a “reviewing official” to conclude that Kelley as the “president of council” had no legal authority to negotiate or execute contractual community benefits with Cavaliers CEO Len Komorosky. Adrine should have concluded that Kelley usurped the authority of the mayor by negotiating and then signing or executing a community benefits agreement. Adrine should have concluded that by performing the duties reserved by law for the mayor, a law enforcement officer pursuant to R.C. 2901.01(H)(c), he was “personating” a law enforcement whether his personation was stated or unstated.

Adrine should have concluded that Kelley's failure to limit his conduct to performing only the duties of a councilman or the council president obstructed the city's official business. Adrine should have concluded that by performing duties reserved for the mayor, and failing to perform only the duties of the councilman, that he was guilty of dereliction of duty. That's what the facts revealed. That's what the law and charter references I provided to the court confirmed.

We also now know Kelley conspired with Deputy Clerk of Council Alan Dreyer to violate the rights of the Q renovation referendum petition committee by refusing to accept petitions containing 22,000 signatures of registered Cleveland voters to have Ord. No. 305-17 referred to the ballot. That “newly-discovered” factual evidence wasn't known to me or Adrine at the time.

What the newly-discovered evidence reveals is that Dreyer failed to perform the clerk's “accept and count the petition” duties and signed a legal opinion that was within the exclusive authority of the law director to issue. Kelley handed Dreyer's letter to the petition committee and refused to allow the petitions to be filed knowing it was not within his duty to perform any duty reserved by law to the clerk or director of law. The letter contained outright fraudulent information that the city was bound to a contract and accepting the referendum petitions unconstitutionally affected it. Chapter 5, Section 30 of the charter instructed Kelley only to preside over the meetings of the council.

The nuances of municipal government for non-mayors and council members are vast. Had I been in front of Adrine to answer questions about my affidavit I would have supported each of my claims. I know Adrine understands my next point but he seems to have missed it with his analysis.

It is basic that there are three separate and distinct branches of government. All the duties of the city's municipal offices are in the charter, ordinances and Ohio laws. Only voters can change the charter. Not a judge. Only the general assembly can change a general law of the state. Not a judge. Statutory construction guides judges to read and obey the plain language in laws. It's why he referred my affidavit to the city prosecutor. That's what R.C. 2935.10 instructed him to do in clear and unambiguous English.

I think Adrine over-reached when he concluded that Mayor Frank Jackson could “supervise” a member of the legislative branch of government, the president of council, as he performed the contract negotiation duties of the director of law. Read all of his review. I'm lifting the following segment from his page 5 analysis and claim that duties bestowed upon one office by statute can be transferred to another office at will. In it Adrine sought to discredit my argument that Chapter 11, Section 71 of the charter imposed the “duty” on the “mayor” to “supervise the administration of the affairs of the city.”

“This section of the City Charter appears to give the Mayor the power to delegate administrative duties as long as he supervises. Arguably, from the praise lavished by the Mayor on Mr. Kelley for the work to give the city additional community benefits, this was a function that was adopted and approved by the mayor. Thus, Mr. Kelley cannot have usurped the power of the Mayor or Law Director in this respect.”

Using Adrine's analysis the duties of each public office are interchangeable as long as the “individuals” holding the offices consent. He has to know this is not true.

In his analysis Adrine placed emphasis on the words “supervise” and “the affairs” instead of “supervise” the “administration” of the affairs of the city.

He also placed emphasis on the wrong section of R.C. 731.05. It states that, “All contracts requiring the authority of the legislative authority for their execution shall be entered into and conducted to peformance by the board or officers having such charge of the matter to which they relate. After the authority to make such contracts has been given and the necessary appropriation made, the legislative authority shall take no further action thereon.”

Adrine argued that the statute didn't give the city council the authority to “execute” a contract. He placed emphasis on the word “execute.” That's correct in part and it confirms that Kelley wasn't authorized to have signed it since the Brookpark council in Coyne v. Salvatore lost when they argued that the word "execute" gave the mayor only contract signing authority. Adrine confirmed Kelley took that authority away from the mayor but gave the demonstrated act of dereliction using his own case no weight.

What Adrine didn't emphasize were words in R.C. 731.05 which stated that contracts “shall be entered into and conducted to performance by the board or officers having charge of the matters to which they relate.” I'll emphasize the word “shall” to confirm that it's a mandatory duty for “the mayor” to have “entered” the benefits agreement Kelley negotiated and “entered” or “executed” by his signature. Kelley is not the “officer” in charge of “the matters to which “the community benefits” relate.” There is no section of the charter or Ohio law that gives the council charge of any administrative affairs whether Jackson agrees with Kelley's derelict, obstructive and personating acts or not.

What I found strange was how Adrine sought to use a case that involved a dispute between Brookpark Mayor Thomas Coyne and former Council President Richard Salvatore to discredit my allegations against Kelley. It's captioned, Coyne v. Salvatore, Cuyahoga App. NO.s. 79507, 79509, and 79510, 2002-Ohio-5819, 2002. I think this is where Adrine got off track. The case he used destroyed his own claim that the mayor could supervise the council president in performing the director of law's contract negotiation duties and let him sign a contract the mayor's supposed to sign.

I know Tom. The court sided with Mayor Tom Coyne and confirmed I am correct in my interpretation of the charter and general law sections that identify Kelley's derelict and obstructive acts. The difference between Brookpark and Cleveland is that city's law director is elected and not appointed by either the mayor or council. Coyne v. Salvatore also confirmed my claim that it's the director of law's duty to perform the law director's duties as they're spelled out in the charter and the state's general laws.

If Kelley negotiated and signed an agreement with Komorosky and I was Cleveland's mayor I would have vetoed that bullshit. That's what Tom did when president of council Salvatore got council to pass an ordinance firing the law firm of Duvin, Cahn & Hutton and hiring Angelo & Johnson to negotiate a labor agreement with an employee union who's employees were under the mayor's supervision.

If Adrine had read Coyne v. Salvatore in its correct light then he'd have issued the warrant or summons to cause Kelley, Langhenry and Horvath's arrests. Below is Brookpark council's ridiculous argument in Coyne v. Salvatore that they had the right to select the law firm to handle labor negotiations for employees the mayor was legally charged with supervising. Here's a link to the case. http://www.supremecourt.ohio.gov/…/8/2002/2002-Ohio-5819.pdf

“Council, its president, and the law director argue that because the Charter states that the council has the authority to award the contract, council has the responsibility for selecting the party with whom the city will contract. They argue that the term “execute” means merely that the mayor actually signs the contract with the party that council has selected.

Here's another reference from Adrine's “Coyne v. Salvatore” that supports the allegations in my affidavits.

“Landco v. Cleveland (1992), Cuyahoga App. No. 60669, 1992 Ohio App. LEXIS 2750 (holding city could not be held to contract awarded by council but was not properly executed because city’s representative’s refused to sign it); McCormick v. Oklahoma City (1915), 236 U.S. 657 (holding that contract not executed by mayor not binding); Cooney v. Independence (1994), Cuyahoga App. No. 66509, 1994 Ohio App. LEXIS 5290.”

What we all know, and what I presented to the Court, was that Kelley unlawfully performed the duties of the mayor when he negotiated the community benefits and signed the agreement with Komorosky. Jackson merely signed Ord. No. 469-17. Since Adrine chose the example of Coyne v. Salvatore I think he missed its instructions that the agreement Kelley negotiated and entered was not within the authority of the office of a councilman or council president. Therefore, it is not a binding legal document and what he shared with the referendum petition committee through the deputy clerk of council's letter was an “obstructive” lie.

My affidavit more than adequately explained and cited the statutory separations between offices. Had I known a review required this level of “fact” I would have provided it, but the process for filing R.C. 2935.09 – 2935.10 affidavits has not yet been perfected at the municipal court level because people don't normally use the law. I appreciate the weight of Judge Adrine's thinking. Despite my disagreement with his conclusions, I see “instruction” in his judgment order. A local rule could be adopted to provide a process for R.C. 2935.09 – 2935.10 complaints that includes a hearing and more descriptively sets forth

At a hearing we could have discussed the issues in Coyne v. Salvatore together since this is one of the cases my late Director of Law, Almeta Johnson, discussed with me. I also reviewed it before I forwarded the affidavits because I knew it supported my thinking. Again, had I known my affidavit should have been more like a “brief” I would have prepared it that way. I didn't realize the judge's review would include him trying my facts without a hearing, adding his assumptions and then ruling on them.

Here's what else I could have better explained to Adrine during a hearing if he believed the mayor could delegate administrative duties to a member of the legislative branch of government. It's the mayor's duty under Ohio law to make sure every other officer limits their conduct to performing the duties of the office and no more or less. It exists in R.C. 733.34 under the heading, “Supervision of conduct of officers.”

“The mayor shall supervise the conduct of all the officers of the municipal corporation, inquire into and examine the grounds of all reasonable complaints against any of such officers, and cause their violations or neglect of duty to be promptly punished or reported to the proper authority for correction.” This has been unsuspended as a general law since October 1, 1953.

Not only is the mayor supposed to supervise the officers of the municipal corporation to make sure all stay in their places, R.C. 733.35 requires him to file charges when they don't. It's under the heading, “Mayor shall file charges against delinquent officers.”

“The mayor of a municipal corporation shall have general supervision over each department and the officers provided for in Title VII [7] of the Revised Code. When the mayor has reason to believe that the head of a department or such officer has been guilty, in the performance of his official duty, of bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, gross neglect of duty, gross immorality, or habitual drunkenness, he shall immediately file with the legislative authority...”

So when the mayor has reason to believe that an officer is guilty in the performance of his office duty, the mayor, not a citizen of Cleveland who wants to be the mayor, “shall immediately file with the legislative authority.” The “shall immediately file” part of R.C. 733.35 follows the part that tells the mayor to supervise the conduct of the city's officers. The word “shall” as we all know imposes “mandatory” duties on the official to obey what's written as written. I know you read the words “habitual drunkenness” and thought about Councilman Zack Reed. Yes. It's the mayor's duty to have filed charges against him, too.

The duty of the mayor to supervise the conduct and file charges against officers of the city who neglect their duties or engage in the type of misconduct Kelley's engaged is important because it reinforces his duties as a law enforcement officer pursuant to R.C. 2901.01(11)(c). The statute reads as follows: “Law enforcement officer means any of the following … “a mayor in the mayors capacity as chief conservator of the peace with the mayor's municipal corporation.”

All this leads back to the claims in my affidavits.

Kelley's signature is on a letter he jointly signed with Cavaliers CEO Komorosky. Komorosky had to have believed Kelley had the legal authority to enter an agreement that bound the city or else he wouldn't have signed the letter or agreed to community benefits with an unauthorized city official. I'll assume very strongly that Komorosky would have waited for the signature of the mayor, Cleveland's chief law enforcement officer, if he knew that was the only official whose signature would make the document legal; and not someone personating themselves as an official being authorized to sign.

Like I shared above, Dreyer's letter is newly-discovered evidence. This is a solid case for the feds. Kelley, in my opinion, acts like a politician who's been paid off in some way.

I've already done what I need to do next. We'll see how it goes. Thanks for the referral to the city prosecutor, Judge Adrine. You'll have the facts.

 

 

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NOTE: Roldo also weighed in on this : http://havecoffeewillwrite.com/?p=56085