Liberty Township’s attorneys filed their response with the Ohio Court of Claims Wednesday afternoon in the lawsuit against the township by residents Mark Gerber and Jim Hurt.
Gerber, former township fiscal officer, and Hurt filed against the township in the Court of Claims Nov.21 over denied requests for documents from the township’s investigation into the conduct of former fire chief Tim Jensen last August.
The two are claiming the handwritten notes of the township’s investigator Douglas Duckett, a Cincinnati attorney, hired as a private citizen to investigate the conduct of the former chief, are public record and should be released.
Township officials have denied all requests from Gerber and Hurt with the claim they are not in possession of the notes.
The township’s attorneys Stephanie Schoolcraft and David Riepenhoff response, containing affidavits from trustees, Melanie Leneghan, Tom Mitchell, Shyra Eichhorn and Matt Huffman, township administrator, asked the court to dismiss the case.
The township and their attorneys claim Duckett was designated as a private citizen tasked with conducting an independent investigation. Neither the board of trustees nor township officials directed Duckett’s investigation, giving him full discretion to conduct the investigation and come to his own conclusions.
“Duckett, acting as a private citizen, is not a public office or entity and is therefore not subject to public records laws,” township attorneys stated in their response. “Even a public official’s personal notes are not public record if the notes are taken for the individual’s own convenience in order to later prepare a report and the notes are not kept as part of the department’s official records.”
Gerber and Hurt maintain the township is in possession of the notes based on the fact that during the hearing Paul Bittner, attorney for Jensen, subpoenaed Duckett for his notes during the investigation.
The board of trustees, presiding in a quasi-court hearing, issued a decision allowing the subpoena of Duckett’s notes.
The notes were handed to Eichhorn, who asked a firefighter to make copies. But before he could leave the room, Eichhorn had him hand the notes to Bittner.
“After the board of trustees granted the subpoena, Mr. Duckett’s notes were handed to me and I asked a firefighter to make copies of the notes. I subsequently gave the notes to a firefighter,” Eichhorn said in her affidavit. “As the firefighter walked away, someone raised the issue of chain of custody of the notes. The firefighter was called back and Mr. Duckett’s notes were given to Mr. Bittner.”
Trustees and officials maintain the township settled with Jensen before the notes were introduced as evidence and they never had possession of them.
Jensen took a position as fire prevention officer with the township as part of the settlement.
All four affidavits submitted by the township’s attorney state, “I have never reviewed, considered, or possessed Mr. Duckett’s typed or written notes.”
Later in the township’s response it says, “The township does have possession of the audio recording and transcript of Jensen’s witness interview, but this does not mean the township has possession of Duckett’s notes.”
Mark Reed, clerk of the Court of Claims, said, the case will now be reviewed by Special Master Jeffery W. Clark, an attorney appointed by the court.
“He now has seven days to make a decision,” Reed said. “Either party can object to the master’s decision. If there is an objection the case goes to a judge in the Court of Claims.”
The Gazette contacted Hurt and Leneghan for comment on Thursday.
“The township spent well over $100,000 in attempting to fire the former chief, and as I attended those associated hearings I continued to question why that intended removal and taxpayer expense was somehow justified. We believe the documents we seek will provide valuable added insight into why the trustees felt it necessary to pursue this failed action. I believe the taxpayers have an absolute right to know how and why their tax dollars are spent,” Hurt said. “I also strongly believe the trustees need to remain directly accountable for those decisions.”
“I am glad we are getting closer to closure on this matter,” said Leneghan, who serves as chairman of the board of trustees.
D. Anthony Botkin may be reached at 740-413-0902 or on Twitter @dabotkin.