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A long-standing clash over transparency in West Chester Township could set the stage for township politics in 2014.
West Chester trustee George Lang said he will revive an on-going conversation at the first trustee meeting in January about regularly allowing the township fiscal officer, Bruce Jones, into executive session.
Public comments have highlighted the issue of transparency in the township in 2013—from the push to...
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WEST CHESTER TWP., Ohio -- A long-standing clash over transparency in West Chester Township could set the stage for township politics in 2014.
Public comments have highlighted the issue of transparency in the township in 2013 -- from the push to once again add the approval of township legal bills of $2,500 or more to trustee agendas in October to the recurring conversation about who should attend township executive sessions.
Jones, who is now under legal review after being accused of including attorney-client privileged information in a politically motivated email sent to hundreds before the election, is not permitted to attend an executive session unless he is invited in by the trustees when the topic involves him.
“It’s just poor policy to have ‘looky loos’ sitting in on executive session, and that’s what our conversation has been off and on,” said Catherine Stoker at her final meeting as a trustee on Dec. 17.
FISCAL OFFICERS IN EXECUTIVE SESSION
It’s a topic that led the public and political discussion in the township several times since Jones took office in April 2012, given the dramatic change in practice since former township fiscal officer Pat Williams was routinely invited into executive sessions during her more than 30-year tenure.
A West Chester resident first questioned trustees about the change at a public meeting in June 2012, in which Stoker replied that Williams had been “grandmothered in, so to speak.”
Stoker, who has had historical personal clashes with the current fiscal officer, said Jones is untrustworthy and expressed concern that his presence at executive session meetings when not relevant to the discussion could jeopardize township relationships due to the sensitivity of the topics discussed.
According to Ohio law, executive sessions can only be called to conference with an attorney; discuss personnel matters; consider the purchase or sale of public property; conduct negotiations with public employees; and discuss the details of security arrangements and matters required to be confidential by federal law or state statutes.
“There is no place for some curious ‘looky loo’ to sit in there, particularly when the leaking of that kind of sensitive information can end up causing us to be sued, can end up causing us to lose sight of some important project,” Stoker said.
Stoker’s position, which has also received support from trustee president Lee Wong and township legal director Donald Crain, has outraged Jones, Lang and some West Chester residents, who believe a fiscal officer’s presence in executive session is critical to operating a transparent township government.
“He’s elected by the people. I don’t always agree with Bruce Jones or like what he has to say, but he is elected by the people as the watch dog of money,” said Lang. “For us to not have the fiscal officer into executive session on a regular basis is bad practice.”
That stance -- that the fiscal officer should attend each executive session -- dominated some trustee candidate election platforms this year, and it was also a central message in Jones’ email-in-question sent to WCPO’s news partner, the Journal-News and hundreds of West Chester residents on Nov. 3.
THE E-MAIL UNDER REVIEW
In the email, which prompted Stoker to request that the Ohio Ethics Commission and Butler County Prosecutor’s Office open an investigation into Jones’ actions, the fiscal officer asks readers to withhold voting for Stoker and Wong and to instead support 2013 trustee candidate Matthew King and candidate Mark Welch, who ultimately defeated Stoker in the election.
“Since day one Mr. Wong and Mrs. Stoker have barred your elected fiscal officer from attending the township’s Executive Sessions,” he writes in the email, alleging that West Chester is the only township out of Ohio’s 1309 townships where a fiscal officer is barred.
“It is my personal belief that if Mr. Jones had said that under oath, he could have been convicted of perjury because of course it’s not true,” Stoker said to trustees, as she referenced a single meeting that Jones attended when he first took office.
Jones later wrote that Wong and Stoker billed taxpayers to launch an investigation into the duties of the fiscal officer, the day after he was elected to the position in 2011.
“This action could only have been initiated by your trustees, totaled 50.1 hours and cost you $13,527!!” Jones wrote in the email.
West Chester spent $511,686 on legal fees in 2011 and $512,305 in 2012, according to data obtained by WCPO. At of the end of October 2013, the township had spent $391,920.
Legal bills are publicly available, but the descriptions of each expense are redacted because they’re considered attorney-client privilege.
Stoker accused Jones of knowingly violating attorney-client
privilege when he referenced specific language from the legal bills in his email. He wrote that the township legal director billed the taxpayers to “’research fiscal officer duties’; ‘drafting opinion letter re Fiscal Officer duties’; ‘review initial draft of opinion letter’; ‘multiple revisions to opinion letter re Fiscal Officer duties’…,” according to his original e-mail sent to the Journal-News.
“It is my personal belief that he broke the law. It is my personal belief that he knew he was breaking the law. It is my personal belief that he knew that was attorney client privilege protect information,” Stoker said.
WCPO requested Jones’ email from West Chester Township, but the legal descriptions included in the original version had been redacted because it’s considered attorney-client privileged information, according to Barb Wilson, public information officer for West Chester Township.
The violation is a first-degree misdemeanor, according to Ohio law, which can result in a jail sentence of 180 days.
Jones said he does not believe he broke the law, and said he does not think the revealed information should have ever been considered attorney-client privilege in the first place because the material involved the role and function of an elected official.
“I strongly believe they have abused the definition of attorney client privilege and in doing so they have abused citizenry by withholding information in violation of their oath of office,” he said, adding that the information he revealed holds the public officials accountable.
Jones would not comment if he was advised that the information was considered attorney-client privilege; however, the township legal director confirmed that all West Chester public officials receive public records training after they take office.
Hours after Jones’ distributed his message to West Chester residents, Stoker sent out her own email, responding to the fiscal officer’s claims. She forwarded Jones’ email along with it -- without redacting the attorney-client privileged information.
That’s why Jones thinks Stoker will is guilty, too, if the investigation concludes he broke the law.
“We’re going down the aisle arm and arm. The only difference is I am fighting to give the public access where Catherine is fighting to conceal this information. She’s fighting transparency,” Jones said.
Stoker denies violating the same law she’s accused Jones of breaking.
“We have bent over backwards to be as transparent as possible,” she said “He is the author of the offending email. I am not. By his logic, all hundreds of the people that he sent it to who then forwarded to their friends should all be cited for violations of attorney client privilege,” Stoker said.
Steve Goodin, a former Hamilton County prosecutor and current attorney for Grayton Head & Ritchie, said he doesn’t think Stoker’s forwarded response will play a significant role in the investigation.
“If the privilege has been waived, the privilege has been waived. If the document has been made public, it was already public when she forwarded it around,” he said.
THE MONTHS AHEAD
Now that the trustees have voted in favor of requesting that Butler County and the state open an investigation to look at the legality of Jones’ e-mail, the township legal director is preparing to pass along the case.
Once the Ohio Ethics Commission receives the allegation, it will review and determine whether the matter is within its investigative jurisdiction.
In order for Jones to have violated the ethics law, which applies to present and former public officials and employees, the township legal director must prove to the commission that the information Jones’ included in his email is confidential. That information must have been clearly designated as such to Jones.
If that is proven, then the legal director will then need to prove that preserving the confidentiality of information that Jones’ put in his email is “necessary to the proper conduct of government business,“ as directed by the Ohio Revised Code.
“This is not an allegation that we frequently receive,” said Paul Nick, executive director of the Ohio Ethics Commission. “We have very little precedent in the area and that is a difficult violation to prove.”
Goodin, who is not directly involved with the case, said it’s unlikely that the township will be able to prove that the information Jones’ revealed should truly be confidential.
“This is going nowhere. First and foremost, its relatively rare for a court to conclude the billing records to a public entity are truly privilege documents,” said Goodin.
Stoker said she doesn’t believe the information Jones revealed was highly valuable, but said trustees cannot pick and choose which information should be protected.
“This is an all or nothing situation. You either protect that situation or you don’t,” she said.
Goodin added that it would be extremely rare for Jones to be criminally charged in this investigation.
“I don’t see much of a basis for that here. They are talking about
a billing description that was leaked. Not even an entire bill, just a description paid with public money,” he said.
Meanwhile, Jones said he is hopeful that the attention paid to the material during the investigation may eventually have an impact on which future attorney-client privilege information is made public.
“We’ve got enough problems in West Chester with transparency, including if not especially, legal bills,” said Jones. “I’m trying to get an understanding that you can’t call any conversation between two people that may have an attorney and a client relationship, that they can’t slap -- certainly in public office -- they can’t declare everything attorney client privilege.”
But Nick said the investigation, which could take months, is not likely to directly change what’s made public.
“The question for us would not be whether this is a public record, rather the question is if a criminal violation of the statute occurred,” he said.