CLEVELAND, OH – In the Plain Dealer and Cleveland.com’s rush to make Cleveland councilman Kenneth Johnson look bad while he prepares for a federal trial, the newspaper’s publisher and editor are not examining if the rights of the American citizen who laws say is “innocent until proven guilty” are being violated by malicious prosecutors. Instead of questioning the legitimacy of David Yost’s decision to use the office of the Ohio Attorney General to seek Johnson’s suspension from council, the Russian owned and dying once daily newspaper is championing the government’s violation of Johnson’s rights.
Johnson’s “federal” trial date is set for July 19, 2021. The Cleveland councilman has been indicted by a federal grand jury at the request of the United States Attorney for the Northern District of Ohio. The person who held the federal office in an acting capacity when Johnson was indicted on February 18, 2021 was Bridget M. Brennan.
Yost violated Section 2921.44(E) of the Revised Code of Ohio, dereliction of duty, when he exceeded the authority of the Ohio Attorney General by assigning an assistant “Ohio” attorney general, Julie Pfeiffer, to seek Johnson’s suspension from Cleveland city council using Section 3.16 of the Revised Code of Ohio. He operated more like a “dirty prosecutor” trying to help Brennan build up a weak federal case; and using the media to color a potential jury against Johnson. In the early 1980’s Yost was a reporter for the Columbus Dispatch covering my organizing activities for Curtis Sliwa’s Alliance of Guardian Angels out of the Columbus Baptist Temple.
(B)(1) If a public official is charged with a felony in a state or federal court and if the attorney general, if the attorney general is prosecuting the case, or prosecuting attorney with responsibility to prosecute the case determines that the felony relates to the public official’s administration of, or conduct in the performance of the duties of, the office of the public official, the attorney general, if the attorney general is prosecuting the case, or prosecuting attorney with responsibility to prosecute the case shall transmit a copy of the charging document to the chief justice of the supreme court with a request that the chief justice proceed as provided in division (C) of this section. If the attorney general or the prosecuting attorney transmits a copy of the charging document to the chief justice, a copy also shall be sent to the attorney general if the prosecuting attorney transmits the copy to the chief justice or to the prosecuting attorney of the county in which the public official holds office if the attorney general transmits the copy to the chief justice.
It is clear from the wording of the error-filled Rule 11-violating pleading prepared by Pfieffer under Yost’s name that the Ohio Attorney General is not prosecuting Johnson in his federal trial; so there was no basis in law for her to file for his suspension. R.C. 3.16 authorized the attorney general or prosecuting attorney “prosecuting the case” to seek Johnson’s suspension from council pursuant to Section (B)(1).
The acting United States Attorney for the Northern District of Ohio or Brennan sought Johnson’s indictment from a federal grand jury and is overseeing his federal criminal prosecution. Yost in his official capacity as the “state” Attorney General did not investigate or pursue charges against Johnson during his 8 years as the Auditor of State; nor is he the prosecuting attorney pursuant to any Section of Chapter 117 of the Revised Code of Ohio with the responsibility to prosecute the U.S. Attorney’s federal case. It was forbidden by R.C. 2921.44(E) for “state” attorney general Yost to use R.C. 3.16 to seek Johnson’s suspension.
(E) 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. (F) Whoever violates this section is guilty of dereliction of duty, a misdemeanor of the second degree.
There is language in Yost’s pleading, as prepared by assistant Ohio Attorney General Pfeiffer, which very loosely seeks to mirror Chapter 18 of the United States Code, Section 666 in Johnson’s indictment that is just not true; or too imprecise to go unexamined. It also raises questions as to how Brennan had the legal authority to investigate council’s general fund supported Expense Account Reimbursement; and to obtain an indictment against Garnell Jamison since it involves absolutely no use of federal funds.
Johnson and Jamison each face charges for 18 U.S.C. 666 violations. The federal law exists under the heading, “Theft or bribery concerning programs receiving federal funds.”
“(a)Whoever, if the circumstance described in subsection (b) of this section exists — (1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof — (A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that — (i) is valued at $5,000 or more, and (ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; or (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more …”
The federal criminal law sets forth the definition of an “agent” as meaning “a person authorized to act on behalf of another person or a government and, in the case of an organization or government, includes a servant or employee, and a partner, director, officer, manager, and representative.“
An individual member of council does not have the authority to act on behalf of a government except during council meetings. The authority of a member of council is “legislative only” as described in Section 731.05 of the Revised Code of Ohio. The heading is an obvious “Powers of legislative authority.“
The powers of the legislative authority of a city shall be legislative only, it shall perform no administrative duties, and it shall neither appoint nor confirm any officer or employee in the city government except those of its own body, unless otherwise provided in Title VII of the Revised Code. All contracts requiring the authority of the legislative authority for their execution shall be entered into and conducted to performance by the board or officers having charge of the matters to which they relate. After the authority to make such contracts has been given and the necessary appropriation made, the legislative authority shall take no further action thereon.
There is no provision in the United States Attorneys’ manual that would have authorized Brennan or Justin Herdman to investigate Johnson’s general fund-funded $1200 monthly expense account since it involved no use of federal funds or violations of federal laws in association with the misuse of Title 1 community development block grant funds. Both Johnson and Jamison are being charged, federally, for acts the United States Attorney had no legal authority to investigate.
Pfeiffer’s request before the Supreme Court of Ohio made the false claim similar to Brennan’s that Title 1 of the Housing & Community Development Act of 1974 authorizes block grant money disbursed by the United States Department of Housing & Urban to be used as “reimbursements to council members for actual expenses.” Had Pfeiffer been directed by Yost to examine page 83 of the Cleveland city council’s 2020 budget, Pfeiffer would have learned that every dime of the legislative authority’s $244,800 for “Expense Account Reimbursement” comes from the city’s “general fund.” The same with Brennan had federal prosecutors looked beyond Mark Naymik’s uninformed reporting for the Plain Dealer and cleveland.com.
Public Law No: 93-33 as enacted on August 22, 1974 does not give Cleveland city council’s “direct entitlement city” the authority to appropriate federal funds to pay the city council’s monthly $1200 expense reimbursement so they can operate home offices or may payments for notes and insurance on cars used to drive around the ward. Council’s wages, benefits, necessities and expenses of government are funded by local taxes from the “general fund.” Neither any member of council nor their aides are required to create and maintain the “time allocation sheets the director and employees working in the community development department are required to maintain and submit to HUD for its review.
Public Law No: 93-33 reads as follows:
Housing and Community Development Act of 1974 – Title I: Community Development – Authorizes the Secretary of Housing and Urban Development to make grants to States and Units of general local government to help finance Community Development Programs. Authorizes the Secretary to incur obligations for such grants of up to $8,400,000,000 until July 1, 1977. Authorizes $50,000,000 for each of fiscal years 1975, 1976, and $100,000,000 for 1977 for grants to general local government units for urgent community development needs.
Requires grant applicants to: (1) set forth a three-year community development plan and formulate a program of operation; (2) operate such programs in accordance with the Civil Rights Act of 1964 and Public Law 90-284 (relating to fair housing); and (3) inform affected citizens of the various aspects of the program. Requires applicants to certify that their plans give maximum feasible priority to activities benefiting low- or moderate-income families.
Requires an annual review and audit to determine if grantees are carrying out their programs as required by this Act.
HUD’s “grant management” instructions are found in Chapter 24 of the Code of Federal Regulations, Part 85. The heading is, “Administrative requirements for grants and cooperative agreements to state, local and federally-recognized Indian tribal governments.” It is where Brennan and Pfeiffer should have found instructions that explained Congress’ requirements for HUD funds to be restricted and segregated away from a subrecipient’s general fund.
A simple letter to Sharon Dumas, Mayor Frank Jackson’s finance director, would have provided both Brennan and Pfeiffer with the answer that Johnson’s monthly expense account reimbursements were not being paid with HUD funds. The two errant prosecutors would have further found the answer to their questions about the source of Johnson’s expense funds in the annual audits Brennan’s boss, Yost, signed off on as Ohio’s last Auditor of State.
Jamison was charged by Brennan with one count of conspiracy to commit federal program theft; two counts of federal program theft; five counts of aiding and assisting in the preparation of false tax returns; one count of tampering with a witness and one count of falsification of records in a federal investigation. The “program theft” charges are based under the false belief that council’s expense account money is funded from HUD’s restricted use community development block grant fund instead of the general fund. Johnson has also been charged pursuant to Title 18, Section 666 of the United States Code under the false assumption that his expense account reimbursement money was federally-funded.
Yost while he served as Ohio’s auditor of state affirmed in 8 audits filed with Clerk Susan Babbett that Cleveland’s city council’s Expense Account Reimbursement was a general fund and not a community development block grant fund expense. In an audit released August 21, 2018, Yost assured Clevelanders and the General Assembly of Ohio that finance director Sharon Dumas was not co-mingling general funds with restricted community development block grant funds when it came to paying council’s then $1200 monthly expense reimbursements.
For all the years referenced in Johnson’s federal indictment, former Cuyahoga County prosecutors William D. Mason, Timothy McGinty and now Michael O’Malley had 120 days to institute criminal proceedings against him had state auditors dating back to Thomas E. Ferguson, Jim Petro, Betty Montgomery, Mary Taylor, Yost and now Keith Faber investigated and reported the expense account drama. The heading for Yost’s authority as state auditor when he told Clevelanders all was well, and he’d found no co-mingling is, “Audit report showing malfeasance or gross neglect of duty.” It’s found in Section 117.29 of the Revised Code of Ohio.
Where an audit report sets forth any malfeasance or gross neglect of duty on the part of any public official for which a criminal penalty is provided, a certified copy of the report shall be filed with the prosecuting attorney of the county in which the offense is committed, and the prosecuting attorney shall, within one hundred twenty days, institute criminal proceedings against the public official.
It seems rather insane that Yost, the state’s former auditor, would allow a subordinate to submit a pleading to the Supreme Court of Ohio with an error about the source of Johnson’s expense account reimbursement money he knew was not true as Pfeiffer appears to have withheld material facts to achieve a legal objective. It’s more disturbing that Chief Justice Maureen O’Connor didn’t read R.C. 3.16 and ask Yost if he was prosecuting Johnson.
A “no” answer should have resulted in an immediate dismissal since Yost’s office had no legal standing to seek the suspension of an elected official he was not prosecuting.