The notes taken by an attorney investigating former Liberty Township Fire Chief Tim Jensen are public record, in the opinion of the Ohio Court of Claims.
Jeffery Clark, special master Ohio Court of Claims, this week recommended the court issue an order granting the request for the notes of Douglas Duckett, a Cincinnati attorney, hired as a private citizen by the township to investigate the conduct of Jensen.
“I recommend that the court issue an order granting requesters’ claim, and which directs the township to provide requestors with the Duckett notes,” Clark wrote.
Mark Gerber, former township fiscal officer, and resident James Hurt filed against the township in the Court of Claims Nov. 21 over denied requests for the notes from the township’s investigation conducted last year.
Gerber’s response to the recommendation was to point to a line in it that Clark wrote, “I conclude that (the) requesters have shown by clear and convincing evidence that the requested investigatory interview notes were records prepared to document a responsibility of the township.”
“This is a very strong definite conclusion by the special master,” Gerber said. “It would be a waste of taxpayer’s dollars for the township to challenge this in any way.”
The two have maintained for months that the handwritten notes of Duckett are public record and should be released.
However, township officials have denied all requests from Gerber and Hurt saying they were not in possession of the notes.
The township’s attorneys, Stephanie Schoolcraft and David Riepenhoff, Fishel, Hass, Albrecht, Downey LLP, the firm employed by the township in Jensen’s hearing, filed a motion to dismiss Feb. 1.
Both parties in the case participated in a mediation session, which was deemed a failure by the Ohio Court of Claims Jan 17.
The township attorneys’ motion stated that the notes were not public based on the following:
1. them being created by a private citizen not subject to public records laws,
2. personal notes not public records and
3. the township does not possess, and has never possessed, the records.
“The board (of trustees) asserted control over and did access the notes when it ordered them disclosed to Jensen’s counsel in its role as the administrative hearing panel,” Clark wrote. “Whether a public office ‘has access to’ records under it’s jurisdiction is not limited to the records already in it’s possession.”
Trustee Tom Mitchell raised the issue of confidentiality.
“Mr. Duckett told every person he interviewed that he was an attorney,” he said. “The people who spoke to him thought their comments were protected by attorney-client privilege.”
However, Mitchell said as a trustee, “On principle, I think those notes should be released.”
Trustees Melanie Leneghan and Shyra Eichhorn declined comment about Clark’s recommendation to the Court of Claims since the case is still in active litigation.
Matt Huffman, township administrator, did the same in an email to The Gazette stating, “This is an ongoing litigation, and the township does not comment on ongoing litigation.”
According to the recommendation, either party, the township or Gerber and Hurt, have seven business days from the time it is received to file a written objection with the clerk of the Ohio Court of Claims.
“This is the first big step,” Hurt said.
Jensen took a position as fire prevention officer as part of a settlement with the township in 2016.
Trustees Tuesday hired Thomas O’Brien from Newark, Ohio, as the township’s new fire chief. O’Brien will receive an annual salary of $100,000 and has a start date of Feb. 27.
D. Anthony Botkin may be reached at 740-413-0902 or on Twitter @dabotkin.