Court to hear Liberty Twp. notes appeal

Ohio’s Fifth District Court of Appeals will hear oral arguments Tuesday regarding a lower court’s ruling that declared notes from an investigation into the conduct of Liberty Township’s former fire chief are public documents.

“It’s a precedent-setting case,” said Liberty Township resident Jim Hurt, one of the appellees in the case, in an earlier statement to The Delaware Gazette. “We are the first and the only one, at least for now.”

Arguments for the case are scheduled for 1 p.m. Tuesday at the Licking County Courthouse in Newark.

The notes in question are those of Cincinnati attorney Douglas Duckett, hired by the township to investigate the conduct of former Fire Chief Tim Jensen in 2016.

Jensen was never found guilty of any wrongdoing after a lengthy investigation and brief hearing. He accepted a position as fire prevention officer with the township as part of a settlement in the fall of 2016.

Former Township Fiscal Officer Mark Gerber and Hurt jointly filed a complaint Nov. 21, 2016 against the township in the Court of Claims after their request for the notes was denied. Both maintain that Duckett’s notes are public records.

The 131st General Assembly of Ohio created a procedure within the Ohio Court of Claims to hear complaints alleging a denial of access to public records. The Court of Claims process went into effect in 2016 allowing for an “economical and expeditious” for denied request of public documents.

The Special Master in the case recommended to the Court of Claims in February of this year that, “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,” the recommendation stated. “Whether a public office ‘has access to’ records under its jurisdiction is not limited to the records already in it’s possession.”

The Court of Claims ruled in March, based on the Special Master’s recommendation, that the notes are considered public documents and ordered Liberty Township to release Duckett’s notes created during the investigation.

Hurt and Gerber then filed briefs with the Court of Appeals June 26 asking the higher court to affirm the Court of Claims’ judgment that Duckett’s notes are public documents. In support of Hurt and Gerber’s case, the Ohio News Media Association with the Ohio Coalition for Open Government filed an amicus brief June 26 in support of the Court of Claims decision.

“Based on the Special Master’s findings, Duckett satisfies at least three of the four factors,” the OCOG’s conclusion states. “First he was appointed to perform a government function … . Second, his investigation was funded by the township. Third, appellant was heavily involved with Duckett’s activities.”

However, township officials maintain that the township has never been in possession of the notes other than passing them to Jensen’s attorney, Paul Bittner, when he subpoenaed them during Jensen’s disciplinary hearing.

Township attorney Stephanie Schoolcraft filed an appeal with the Fifth District Court on June 5 asking the court to review “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.”

The Ohio Township Association and the Ohio Public Employer Labor Relations Association also filed amicus briefs with the court June 5 in support of Liberty Township’s appeal to overturn the court’s decision on the notes.

All three township trustees have stated to The Gazette that Duckett told everyone he interviewed during his investigation that he was an attorney. Those who spoke to him believed their comments were protected under attorney-client privilege.

Trustees said they want to put the issue behind them and let the healing begin, but if the notes are released there could be hard feelings among township employees.

By D. Anthony Botkin

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D. Anthony Botkin may be reached at 740-413-0902 or on Twitter @dabotkin.