A Desperate Play for Delay

When Will the Ohio Lawlessness End?

When they’re cornered, those on the wrong side of the law often win by delay.

We’re seeing that at the national level, with Trump.

And that’s clearly the strategy being attempted in Ohio in the ongoing teachers pension fund scandal. The board meeting the other day provided a glaring, desperate example—all while a TV camera captured it all.

Yesterday, I described the major (if 100% predictable) ruling that Mike DeWine violated Ohio law when he illegally ousted a member of the Ohio teachers’ pension board last May, in the middle of a board election that would determine the board’s majority.

But the hours that followed showed just how desperate those who lost that court fight are to run the clock out.

Delay Tactic 1: Thursday’s Cancelled Meeting, and the Discussion that Didn’t Happen As a Result

First, the court ruling happened to come down on the same day that a pension board meeting was taking place. With the court order in hand, the illegally ousted (and reinstated) board member (named Wade Steen) marched into the meeting and took the seat he had been deprived of for almost a year. The illegally seated member left.

But then the real drama followed.

Apparently without a proper motion to adjourn (or a second)—and with a good deal of business left on the day’s agenda—the chair of the pension board called for a 15-minute break…

Step 1 of the getaway

…and then simply didn’t return to continue the meeting. Here he is walking away:

Step 2 of the getaway

And despite objections, that was the end of the meeting. (You can see the footage of what went down HERE).

It’s fair to say this is not an appropriate process for adjournment, under Roberts’ Rules of Order or any other formal meeting I have attended.

And this bizarre ending begs the question: by ending the meeting as he did, after it became clear there was a new Board majority, what topics and discussions did the chair head off?

Let’s look at the agenda to see. Well down the list, you’ll see that…

…the board was going to review the topic of “Performance-Based Incentives” (ie. bonuses for investments staff).

Hmmm.

If you’ve watched this board for the past several years, you’ll know that these bonuses have been one of the hot topics at the center of the debate between the board’s two factions. (Many retirees and some board members have expressed concern that the board has been paying high-level bonuses to staff while not paying consistent COLAs to retirees).

Now let’s go one step deeper, and take a look at the actual report they were going to discuss with that agenda item. You’ll see that the report presents a conclusion that the pension’s system of performance-based incentives is “aligned with competitive market practice.” The report also proposes “minimal changes” in bonus policies for 2025. It’s safe to say that the various board members have strong views on this topic, and likely on these conclusions and proposals.

So add it up: they’ve been debating the issue of bonuses for years; they were on the verge of having a discussion about that bonus policy, including for 2025; the “reform” group suddenly has a majority due to the day’s court ruling….so the chair abruptly (improperly) ends the meeting simply by leaving the room and not coming back.

(And that’s just one topic that we know would have been discussed).

Now that is as sketchy as it gets.

It’s safe to say, this is NOT how a professional public meeting is supposed to run. Or end. And with lawyers present, it’s stunning that this was allowed to play out as it did. (Makes you wonder who these lawyers think the client is.)

And also raises a question whether the meeting ever adjourned?

And why does this all matter so much? Because things could very well change between now and the next meeting, if DeWine and whoever he’s working with have their way.

Read on….

2) Delay Tactic 2: An Appeal — and a HUGE Potential Conflict of Interest

…because the DeWine administration told NBC4 Thursday night that they are urging an appeal of the decision finding the Governor to have broken the law, and reinstating Steen.

Where would that appeal go? To the Ohio Supreme Court.

I’ve said it before and Thursday’s ruling made clear: the law here is so clear, it would be stunning if the Supreme Court were to reverse it.

But here’s the risk—they don’t need to reverse it for Governor DeWine to get away with his lawless act. As with Trump and many of his cases, delay is on his side. Enough delay equals a big victory.

Why?

If the Supreme Court takes up the case, and issues a stay of the appellate decision until the case is decided, that would delay the final decision beyond the end of the illegally fired member’s 4-year term (which ends later this year). As before, DeWine will then name someone else to the seat. So the delay alone (if combined with a stay) satisfies DeWine’s wishes (along with whoever urged him to take his lawless act) of nullifying the “reform majority” against the will of retirees’ votes.

Which begs the key question:

What does it take to get the Ohio Supreme Court to take the appeal?

Answer: The votes of four members of the Court.

And what does it take to get the Ohio Supreme Court to stay the decision of the lower court while the Court considers the case, guaranteeing the delay DeWine wants?

Also, four votes of the Court.

If there are only three votes to take the appeal, or issue a stay, Thursday’s decision becomes the final decision—and Steen’s reinstatement takes permanent effect.

And on a 4R-3D Ohio Supreme Court, who is the potential fourth vote to take the case and issue that stay? To bail out Governor DeWine from his mess?

Regular readers will know that that is none other than Governor DeWine’s son—Supreme Court Justice Pat DeWine—who has this terrible habit of ruling in some cases (really important ones) involving his dad, while providing absurdly untenable excuses for why it’s OK that he does so (it’s not!).

To be clear: in a case involving actions directly taken by his own father that two courts (a magistrate and the appeals court) have now found to be illegal, any vote by Pat DeWine to either take the appeal from those cases, and/or stay the decision below to provide that delay, would be one of the most significant unethical acts in the history of Ohio.

And when I say significant, I’m not only talking about the seriousness of the ethical breach involved—a son/Justice bailing out his own father from acts that violated Ohio law.

I’m also talking about the significance of the stakes Pat DeWine doing so—allowing an illegal act to take affect, altering the board majority overseeing more than $80 billion that impacts the lives of thousands upon thousands of Ohioans, and overturning the will of thousands of retirees who voted in last May’s board election, and other elections that preceded it.

I’d say I can’t believe Pat DeWine would do such a thing, but not long ago, I would have said that about the multiple gerrymandering cases that came before Pat as well. But he stayed involved in almost all aspects of those cases, and ruled in favor of his dad every time.

(Justice Deters will also have a vote on this as well. Not only has he traded favors with the DeWines for years…

…but his senior attorney is none other than Pat DeWine’s significant other. Given the stakes of this case, to assure no appearance of impropriety on such a weight case, Deters’ recusal would be appropriate here as well.

If you care about all this—and all who care about the rule of law should—what can you do in the meantime?

Make as much noise as possible.

The worst decisions in politics usually happen when those involved think that no one is paying attention.

So please, make sure all the people involved know that you’re watching it all very closely. And spread the word.

Make. Some. Noise.