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Huron taxpayers demand City fire “special” prosecutor Michael Joseph O’Shea to stop First Amendment retaliation against activist Stacy Hinners

Friday, May 8, 2020

Taxpayer demand letter on Huron citizen activists' behalf cites multiple reasons Cleveland attorney Michael J. O’Shea’s appointment is illegal

Video footage of the May 14, 2019 First Amendment retaliation against Huron civic activist Stacy Hinners

Huron, OH – Today, a group of City of Huron taxpayers and civic activists—Stacey Hartley; Michele Schuster; Brandon and Elisabeth Kenning; John and Cheryl Zimmerman; and Charles and Charlene Baron have, through the Chandra Law Firm, demanded that the City fire Michael Joseph O’Shea, the so-called “special” prosecutor hired by previous law director Aimee Lane to prosecute Stacy Hinners over her speech to the City Council on May 14, 2019 criticizing Open Meetings Act violations by the City Council.

The taxpayer-demand letter, submitted to the City’s law director Benjamin Chojnacki under a special provision of Ohio law, points out that R.C. 733.56 requires a community’s law director to seek an injunction to “restrain the misapplication of funds of the municipal corporation, the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the municipal corporation in contravention of the laws or ordinance[s] governing it, or which was procured by fraud or corruption.”

As the taxpayer demand letter points out:

The City’s contract with Mr. O’Shea checks all the boxes:
  • Mountains of evidence show that Mrs. Hinners is being selectively prosecuted in violation of her First and Fourteenth Amendment rights to free speech and equal protection of the laws.[1] Contracting Mr. O’Shea to advance those unconstitutional objectives is a misapplication of taxpayer funds[2] and an abuse of the City’s corporate powers.[3]
  • The contract was made in contravention of the laws and ordinances governing it, thus further resulting in misapplication of funds:
  • Huron’s charter prohibits the expenditure of any money in excess of the amounts appropriated.[4] The City has been cutting checks to compensate Mr. O’Shea for his time on this case, but Council has appropriated no funds for that purpose.
  • R.C. 2921.421 permits the appointment of an assistant prosecutor only if Council and the appointing prosecutor take specific steps to prevent conflicts. The statute requires, for instance, that the appointing legal officer makes certain disclosures of her business relationship with the appointed prosecutor—but Ms. Lane made no such disclosure to the City. No one apparently took any steps to ensure that these criteria were satisfied.
  • R.C. 2938.13 further limits who, besides the director of law, may prosecute a case. While permitting the delegation of prosecutorial authority “in a proper case,” the statute explicitly forbids prosecutions by a “private attorney employed or retained by a complaining witness.” Here, by virtue of its allegation that Mrs. Hinners disrupted its Council meeting, the City is the complaining witness and also the party paying Mr. O’Shea’s bills. Disregarding this prohibition will result in a prosecution being dismissed,[5] and a conviction reversed.[6]
  • Further, law director Aimee Lane of Walter Haverfield LLP, when approving Mr. O’Shea’s contract, contravened limits imposed by the city’s structure for the divided authority of the law director. While she had—and you now have—primary authority for civil matters, the authority to make and carry out decisions about which cases to prosecute rests, by contract, exclusively with Michael Kaufman.[7] The City’s engagement agreement with Walter Haverfield LLP explicitly excludes litigation from the scope of services that Ms. Lane would provide.[8] She had no authority to enter into an agreement to prosecute any criminal matter absent a special-services agreement—which has never existed. And the City never permitted her to delegate the authority for criminal prosecutions.
  • The contract was procured by fraud or corruption. Director Lane’s acknowledgment of her inability to participate in the Hinners-prosecution matter[9] proves that at the time she seized control of the prosecution from Prosecutor Michael Kaufman, she knew that she—along with your firm, Walter Haverfield LLP—was exposed to civil liability, and that she may have been exposed to criminal liability, as well. Director Lane had more than enough experience to know that the normal procedure for these situations was to ask a prosecutor from a neighboring jurisdiction to handle the case pro bono, as the City did when a conflict kept Mr. Kaufman from prosecuting Bryce Collins earlier in the year.[10] Instead, Director Lane dangled an hourly engagement in front of a lawyer with a publicly available history of questionable ethical issues[11] and financial problems,[12] giving that lawyer every incentive to churn the file and push Mrs. Hinners into a resolution that would protect Director’s Lane’s and Walter Haverfield’s interests at the cost of Mrs. Hinners’s constitutional rights.
These are hardly the only problems with Mr. O’Shea’s appointment. A special prosecutor’s appointment should have been delegated to the court rather than entrusted to a conflicted official.[13] This was the procedure the Erie County Prosecuting Attorney and Court of Common Pleas followed, and that court’s appointment of the attorney general superseded any authority Mr. O’Shea conceivably could have had to prosecute Mrs. Hinners.

And—for reasons that now seem obvious—Mr. O’Shea failed to take the required oath to “support the constitution of the United States.”[14]

Everything about Mr. O’Shea’s appointment and conduct is improper.

The taxpayers also that law director Chojnacki first recuse himself because his law firm, Walter Haverfield, has conflict of interest given his former partner Aimee Lane's involvement in the underlying events—and that Chojnacki should permit the City Council to independently engage its own counsel.

The letter also demands that the City take immediate corrective action to end and recoup the waste of taxpayer funds on O’Shea’s improper engagement and prosecution of a hopelessly unconstitutional criminal case, and that the City’s new counsel discuss a potential resolution. If the law director fails to act, the law authorizes the taxpayers to file a lawsuit in the City's name to remedy the wrongdoing.

The taxpayer-demand letter and its exhibits may be found here.

Subodh Chandra and Brian Bardwell of The Chandra Law Firm LLC represent the citizen taxpayers in this matter. They also represent Mrs. Hinners in the defense of the First Amendment–retaliatory criminal prosecution over Mrs. Hinners’s May 14, 2019 speech, which resulted in a dismissal that O’Shea is free to refile, and in her civil suit against O’Shea, the City, and other current and former Huron officials including former Mayor Brad Hartung.

Huron officials’ potential criminal misconduct against Mrs. Hinners and her husband Jason Hinners remains under investigation by the Ohio attorney general’s office.

[1] See First Am. Compl. (Doc. #31), ¶¶38–119, Hinners v. O’Shea, Case No. 19-CV-02868 (N.D. Ohio) (attached as Ex. A).

[2] State ex rel. Gerhardt v. Krehbiel, 38 Ohio St. 2d 90, 95 (1974) (permitting taxpayer’s suit to “enjoin [improperly appointed defendants] from assuming the respective offices of city manager and law director”);

[3] See Ohioans for Concealed Carry v. City of Columbus, 140 N.E.3d 1215, 1228 (Ohio Ct. App.) (allowing taxpayer’s suit for abuse of corporate powers where “challenged [criminal] ordinance impacted … rights guaranteed by the United States Constitution”); Porter v. City of Oberlin, 1 Ohio St. 2d 143, 146 (1965) (allowing taxpayer suit to enjoin enforcement of criminal ordinance where “the enforcement of this ordinance will involve the expenditure of public funds”); State ex rel. Sergi v. City of Youngstown, 68 Ohio App. 254, 262 (1941) (affirming taxpayer’s injunction against enforcement of unconstitutional criminal ordinance).

[4][4] H.C.O. § 5.07.

[5] State v. Hartzell, 185 N.E.2d 88, 89 (Toledo Mun. Ct. 1962) (dismissing prosecution brought by private attorney retained by victim).

[6] City of Columbus v. Tullos, 1 Ohio App. 2d 107, 110 (Ohio Ct. App. 1964) (reversing conviction based on participation of attorney representing victim in traffic case).

[7] First Am. Compl., ¶¶ 155–70 (attached as Ex. A).

[8] See Huron–Walter Haverfield contract, ¶ 3(d) (attached as Ex. B).

[9] Lane letter to Chandra (attached as Ex. C).

[10] Huron v. Collins, Case No. 19-CRB-24 (Huron Mun. Ct. 2019).

[11] See, e.g., C. Ellen Connally & Mansfield Frazier, You Be the Judge – Can Michael O’Shea Be Trusted on the Bench? (Feb. 20, 2016), https://‌‌2016/‌02/‌you-be-the-judge-can-michael-oshea-be-trusted-on-the-bench-by-mansfield-frazier-c-ellen-connally/.

[12] See, e.g., Tom Meyer, Investigator: Prosecutor owing back taxes belongs to yacht club, WKYC-TV (December 4, 2013), https://‌‌article/‌news/‌investigations/‌investigator-prosecutor-owing-back-taxes-belongs-to-yacht-club/‌316837773.

[13] State v. Crisp, No. CA 481, 1993 WL 379518, at *6 (Ohio Ct. App. Sept. 24, 1993) (“[A] common pleas court properly exercises its inherent power where neither the prosecuting attorney nor assistant prosecutor could perform their prosecutorial duties:”); State v. Bunyan, 51 Ohio App. 3d 190, 192 (1988) (where prosecutor is “unable to carry out his prosecutorial duties … it would be in the public interest to allow the court of common pleas to utilize its broad discretion and appoint a ‘special’ prosecutor to represent the state.”); State ex rel. Williams v. Zaleski, 12 Ohio St. 3d 109, 113 (1984) (“The court has the discretion to appoint counsel to assist the prosecuting attorney in a pending criminal case whenever it is of the opinion that the public interest so requires.”).

[14] R.C. 3.22; H.C.O. 12.01.

Related Practice Areas
First AmendmentGovernment Ethics, Misconduct, Fraud, & AbuseOhio Public Records Act, Open Meetings Act, FOIA, & Sunshine LawsMalicious Prosecution, Abuse of Process, and False ArrestTaxpayer Lawsuits in Ohio

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