The Ohio Township Association (OTA) and the Ohio Public Employer Labor Relations Association (OPELRA) filed motions supporting Liberty Township’s appeal to overturn the Court of Claims’ decision on the Duckett notes.
Both associations filed Monday with the Fifth Appellate Court.
“I know many organizations are watching this closely because it will have tremendous impact on the public records process and laws,” said Trustee Shyra Eichhorn.
Duckett is a Cincinnati attorney hired by the township as a private citizen to investigate the conduct of former Fire Chief Tim Jensen. The Court of Claims ruled Duckett’s notes from his investigation were public documents and ordered their release March 29.
Township attorneys Stephanie Schoolcraft and David Riepenhoff, of Fishel, Hass, Kim, Albrecht, asked the Ohio Fifth District Court of Appeals April 21 to review the lower court’s decision.
Trustee Melanie Leneghan said the appeal is critical in saving taxpayers unwarranted expenses in the future.
“I’m not surprised that the OTA is getting involved,” she said. “This could have a very, very negative impact on townships and their residents if this is not overturned by the higher court.”
The OTA motion states, “(The Ohio Court of Claims’) decision will directly affect the ability of Ohio’s townships to have thorough, objective investigations conducted of township personnel.”
The OTA brief also states townships will “face uncertainty” on what type of records to provide to the public causing “additional burdens and liabilities” in making sure third parties maintain and make available their private documents.
“This will have a significant impact on the efficient operation of government,” the OTA’s motion states. “The impact of the Ohio Court of Claims’ decision has far-reaching consequences that will impact township throughout the state.”
The OPELRA motion argues public offices should be able to “interview witnesses and review documents” in an investigation “without every related note or scrap of paper” being disclosed.
“If all notes were public records, it would be nearly impossible for public offices, … , to meet their responsibilities both to the public-record requestor and to the public they serve,” OPELRA’s motion states. “It would also be difficult for public offices to properly maintain records in accordance with their applicable document retention policies, especially when the office lacks any access to or control over the personal notes taken by its employees, agents, or other individuals.”
Trustee Tom Mitchell said he isn’t sure what the impact of the motions will be regarding the case.
“As far as the judge is concerned it’s about the merits of the case,” Mitchell said. “The case will be judged on the merit of the case.”
Township officials continue to maintain that the township has never been in possession nor seen Duckett’s notes other than passing them to Jensen’s attorney, Paul Bittner, when he subpoenaed them during Jensen’s disciplinary hearing. The township also has continually claimed the notes were Duckett’s personal notes and not public documents.
Liberty Township’s former fiscal officer, Mark Gerber, and township resident James Hurt filed in the Court of Claims’ Nov. 21 after both had been denied access to Duckett’s notes.
“The argument is the public has a right to know if (Duckett’s) report is fair and balanced,” Gerber said. “Duckett’s notes will prove that.”
Schoolcraft’s and Riepenhoff’s appeal to the higher court asked “whether the personal notes of a non-employee private citizen appointed pursuant to the Ohio Revised Code are public records even though the personal; notes were not provided to, maintained, or used by … Liberty Township.”
Jensen was never found guilty of any wrongdoing after a lengthy investigation. He subsequently accepted a position as fire prevention officer as part of a settlement with the township in the fall of 2016.
Trustees hired Thomas O’Brien as the township’s new fire chief Feb. 22, 2017.
D. Anthony Botkin may be reached at 740-413-0902 or on Twitter @dabotkin.
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