Smitherman Wants 'Gang Of Five' To Pay Legal Fees

Jan 6, 2020

Cincinnati Vice Mayor Christopher Smitherman has resurrected his motion from last year asking that the so-called "Gang of Five" council members reimburse the city for legal fees related to violating the state's open meetings law.  

The city and the five council members reached a settlement with a plaintiff who filed suit accusing them of using text messages and emails in violation of that law.  

Smitherman wants those involved to pay the $176,000 related to the case, plus additional legal costs from the city solicitor's office.  

But his motion may run into a charter problem since it takes five affirmative votes to approve an item on the agenda.

"I believe that we are in a constitutional crisis," Smitherman said. "I don't think the city has ever experienced a situation where five of the nine members of council have ever been taken off the field and were asked - or put in - a compromising situation based on their behavior; based on what they did."

Council voted last year on an ordinance to pay those legal fees, and a source for that funding.

Smitherman wonders if the five council members should have voted on that funding.

"At the time of that vote, I'm asking you: Has the city reached out to the (Ohio) Ethics Commission in writing and asked the question, was that original vote an ethics violation?" Smitherman said.

The Ohio Ethics Commission, in an advisory opinion from last year, said five Cincinnati City Council members could not vote on Smitherman's motion asking them to reimburse the city for legal expenses and fines related to private texts sent between them that violated the state's open meeting law.

"The five council members are prohibited from voting, participating in discussions or deliberations, or otherwise using their authority or influence, formally or informally, in matters regarding the motion, a resulting ordinance, and any related procedural motions that arise under the city council's parliamentary process that affect the motion's passage, tabling, or non-passage," wrote Ohio Ethics Commission Staff Advisory Attorney John Rawski.

'No Crisis' Solicitor Says

A city council motion is non-binding, but Smitherman had suggested he would introduce an ordinance if the motion won approval. An ordinance would be binding.

But Section 5 of the City Charter states, "no legislation shall be passed without the concurrence of a majority of the members elected to the council."

There are nine council members, and if five cannot participate, there's not a majority of the elected members.

Former Cincinnati City Solicitor John Curp, in a WVXU interview from last year, disagreed.

"No crisis," Curp said in a text message. "Charter is clear. Need five votes to pass an ordinance. It fails."

Curp also said the advisory opinion is flawed because it fails to address whether a motion is something of value.  He said motions play no role in the legislative process.

Five Democratic members of Cincinnati City Council – P.G. Sittenfeld, Greg Landsman, Tamaya Dennard, Chris Seelbach and Wendell Young – admitted in the court case that they secretly held meetings via text messages and emails in March 2018 while Mayor John Cranley was trying to fire now-former City Manager Harry Black.

The city paid $101,000 to settle the case.  That included $90,000 to pay for plaintiff attorneys fees, and another $11,000 for fines.

The city also spent $75,000 for two outside law firms to handle the case against the council members until the city solicitor's office resumed representing them.

Meanwhile, a special prosecutor was appointed in December to investigate five Cincinnati council members for violating Ohio's Open Meetings Act.

The action comes upon the recommendation of Ohio Auditor Keith Faber who reviewed the actions of the five council members.

Hamilton County Prosecutor Joe Deters named Patrick J. Hanley, a Cincinnati lawyer who specializes in white collar criminal defense, as the special prosecutor.

Hanley could present evidence to a grand jury to see if it will return indictments against the five council members.

According to the prosecutor's office, the report from the state auditor lists the potential violation as Dereliction of Duty.

Dereliction of Duty is a second degree misdemeanor, which is punishable by up to 90 days in jail and/or a fine of up to $750. Deters indicates he doubts the lawmakers would actually be ordered to serve time if the case were to trial and guilt verdicts returned.

Hanley will be paid $250 per hour by the City of Cincinnati. Deters says he doesn't know how long the investigation could take.