Breaking: DeWine Broke the Law

Appellate Court Confirms Clear Ohio Law on Teachers Pension

For almost a year now, I’ve harped on this outrageous case. A complete abuse of power, on an issue that impacts thousands of retirees and billions of dollars.

When, last May, Governor Mike DeWine fired an Ohio teachers pension board member just after voting ended in a tense election for a different board seat (but before the result of that election was announced), it was clearly an attempt to interfere in an active election that would determine the board’s majority (watch this video if you don’t know the details):

Shady as can be, it was also blatantly illegal.

As I explained then and ever since, there’s a multi-step process spelled out in Ohio law to remove a teachers pension board member for cause. Even the member DeWine fired, a non-lawyer, understood the basics of that process, and actually tried to explain it to DeWine at the outset of this scandal (after DeWine had called him and demanded that he resign):

But apparently desperate and out of time, DeWine didn’t even attempt to follow that legally required process. Instead, he just up and broke the law—acting with no legal authority when he replaced this member.

Well, yesterday an appellate court affirmed all of this, ruling that DeWine failed to follow that required process, and ordering that the terminated member be reinstated:

After yesterday’s ruling, the reinstated board member actually arrived at an ongoing pension board meeting, court order in hand, and demanded that he be seated—as he was legally entitled to be. The Board majority voted him in, which for the first time created the “reform majority” that the election last May had created. But even with multiple items left on the agenda, the board chair then unilaterally adjourned the meeting—from reports I’ve heard, making no motion and receiving no second for doing so. Yet another wholly inappropriate act!

But reinstalling that board member should just be the first step. All that does is undo the violation of the law. The truth is, what DeWine did should have never been given legal effect. It was plainly lawless all along. (The Pension Board members also need to inquire as to the legal effect of all votes taken by the illegally seated board member since last May; if his (illegal) vote was the decisive vote in any important matters, it seems pretty clear those Board decisions were not legitimate).

But mere reinstatement is not accountability.

The rule of law does not simply allow someone to break the law with impunity. Not your every day Ohioan, and not the Governor.

And to be clear, this was not an innocent mistake or minor violation. This was blatant lawlessness, defying a crystal clear process with a whole state watching, using thuggish tactics along the way, open deceit (they concocted reasons for the firing which had no basis in fact, as I’ve explained before), and with enormous consequences. Again, it was timed to thwart the result of an election—and effectively did so for the past year.

In Ohio, officials who act in such ways are potentially liable for violating several provisions of Ohio law:

O.R.C. 3.07: “misconduct in office,” defined as “[a]ny person holding office in this state…who willfully and flagrantly exercises authority or power not authorized by law.”

O.R.C. 2921.44: “dereliction of duty,” a second degree misdemeanor, as follows: “No public servant shall recklessly fail to perform a duty expressly imposed by law with respect to the public servant's office, or recklessly do any act expressly forbidden by law with respect to the public servant's office.”

As I’ve written before, to assess if these or other provisions were violated, every detail of what led to this lawless ouster needs to be examined:

• Every email, text message, DeWine calendar entry surrounding the illegal ouster should be examined.

• DeWine and others involved—his staff, pension staff—should be deposed.

Along the way, lots of questions need to be asked and answered:

• DeWine didn’t just decide to file this member out of the blue. So, who communicated with him about all of this? His own staff? Pension staff? People beyond Ohio government with an interest in the fund?

• What was he told about the election, and the implications of the change?

• What specifically prompted him to call Steen mid-week to terminate him at that moment?

• Was he informed about the election result in advance? After the results were in on the Monday? (The vendor that ran the election touts their ability to tabulate results in real-time).

• Did he know that Steen had actually attended all meetings that year? Did someone tell him otherwise? When did they first come up with the “missed meetings” as their excuse?

• Did DeWine ask anyone about Steen’s correct assertion that he could not be unilaterally terminated under Ohio law? Did DeWine get a legal opinion about this?

• What did he tell the person he chose to replace Steen about the desperate need to have him join the board in a matter of days, or mere hours? About the role he wanted him to play?

• Apparently, the pension board paid the attorneys’ fees of the illegally seated board member, yet the illegally terminated member had to pay his own fees to fight what happened to him. How did that come to be when the law was so clear? Didn’t the board and counsel have some obligation to defend a member who was illegally terminated, as opposed to defend the member who was seated illegally by the Governor?
  
  And so much more.

Cleaning up the Nation’s Most Corrupt State

This is a test, Ohio.

At long last, it’s time for accountability for the never-ending lawlessness in Ohio government.

What happened here can not be dropped, or looked past.

This was not a small foul. Or an innocent mistake.

This was egregious.

You don’t get to aggressively break the law because you don’t like the result of an election. If that’s what the Governor did here, he should face accountability for doing so.

To reestablish the rule of law in a State where it appears to be gone, there must be a full investigation into what happened.