Transparency Wins

Submitted by lmcshane on Tue, 11/01/2016 - 03:50.
Transparency Wins
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Irony - GCP and business community - give us your money first...

We'll work on that transparency thing...Later...


From Eric J Brewer: Waste is another reason Mayor Frank Jackson and Cleveland city council want us to raise the income tax from 2 to 2.5 percent.

Cleveland Public Power commissioner Ivan Henderson had no legal authority to award the Ryan Company, Inc. $314,000 more than what council approved in a contract. Only the mayor and council have the authority to enter contracts. Only council, acting as a legislative body, can appropriate funds.

According to Cleveland's codified ordinances, specifically Ord. 615.12(d) and (e), Henderson and Ryan Company officials committed multiple acts of dereliction of duty. It's a second degree misdemeanor. They committed the offense of “theft in office” because they used their public “offices” to misappropriate the city's funds to unlawfully enrich Ryan Company officials.

Neither Henderson nor Ryan Company officials will be prosecuted. Media reports reveal council members are not demanding that Jackson obey Section 71 of the charter to enforce the dereliction of duty ordinance they voted to enact in 2006. Here's why Jackson has no choice but to prosecute both Henderson and Ryan Company officials under the heading, General powers and duties of the mayor.” The charter section has been unchanged since November 9, 1931.

“It shall be the duty of the Mayor to act as chief conservator of the peace within the City; to supervise the administration of the affairs of the City; to see that all ordinances of the City are enforced ...”

Let's look at Ord. 615.12(d) and (e). I've added sections (f) and (g) of the ordinance because they're important when examining the facts behind how the $314,000 was “stolen” from Cleveland taxpayers by Henderson and the Ryan Company's officials.

“(d) No public official of the State shall recklessly create a deficiency, incur a liability or expend a greater sum than is appropriated by the General Assembly for the use in any one (1) year of the department, agency or institution of the State with which the public official is connected.
(e) No public servant shall recklessly fail to perform a duty expressly imposed by law with respect to his or her office, or recklessly do any act expressly forbidden by law with respect to his or her office.
(f) Whoever violates this section is guilty of dereliction of duty, a misdemeanor of the second degree.
(g) As used in this section, “public servant” includes an officer or employee of a contractor as defined in RC 9.08.”

So there's an ordinance that limited the Ryan Company contract to a certain dollar amount, and it was exceeded by Henderson and the contractor's officials. Jackson's duty was to first see that Henderson and Ryan lived within the contract. His second duty was to punish them when it was discovered they didn't. There is nothing in Section 71 of the charter that gives the mayor the “option” of not seeing that all ordinances of council are enforced. Jackson has no choice but to do so, or face dereliction of duty charges himself for “failing to perform a duty expressly imposed by law with respect to his office.”

More importantly, the only lawful procedures for awarding Ryan Companies the $314,000 was disobeyed by Henderson. Since he didn't have contracting or appropriate authority as a “commissioner,” the debt he created isn't owed by the city. That's the ruling of the Supreme Court of Ohio in Frisbie Co. v. East Cleveland 1918.

"Where a statute prescribes the mode of exercise of the power therein conferred upon a municipal body, the mode specified is likewise the measure of the power granted, and a contract made in disregard of the express requirements of such statute is not binding or obligatory upon the municipality." Frisbie Co. v. City of East Cleveland (1918), 98 Ohio St. 266.”

This is our money. Our tax dollars. We have a charter in Cleveland and laws on the books that have not expired or been repealed. All of the laws that governed Jackson, Henderson and Ryan Company officials conduct have not been suspended by council or the general assembly. Enforcing these laws protects our tax dollars. Failing to enforce them doesn't. And that's the problem with how our government is running all over the United States.

Laws run both ways but elected officials and public employees are only enforcing those against the citizens, not themselves. We get the heavy-handed treatment from law enforcement officers while they violate laws to let themselves and each other go.

What's pathetic to me is that the reporter who wrote the story for, Leila Atassi, spoke to and obtained quotes from Kevin Kelley, the council president, and Dona Brady, who chairs the public utilities commission. Brady was appropriately outraged but no one has called for Jackson to obey Section 71 of the charter and enforce 615.12 and the other applicable sections of the city's ordinances. They just agreed to pay.

Henderson gets to keep his job because he said he wouldn't do it again, and the Ryan Company gets to keep the money its officials received illegally. You see in section (g) of 615.12 that contractors are public officials because they're being paid in public funds.

Under no circumstance is it lawful for a public official or public employee to fail to perform a duty imposed on the office by law. Ohio Revised Code section 705.28 prescribes the language of the oath of office that both Jackson and Henderson were administered. They must perform the duties of the public offices they hold as written or else they are not legally discharging the duties of the office. The use of the word “shall” makes the performance of a duty a mandate. The use of the word “may” gives them an option. Nowhere in the sections of the charter or ordinances I identified above is the word “may.”

Under the rule of statutory construction, when a statute or ordinance is written in plain English with clear instructions for public officials to perform specific duties, the only duty is to obey what is written. So since it's Jackson's duty as mayor to enforce all ordinances of council, and in this case he hasn't, he, Henderson and Ryan Company officials are no less lawbreakers than the drug dealer the mayor is supervising cops to arrest. Jackson lets them go just like he's done the cops. And again, all we get to do is pay.

What Henderson and Ryan Company official did wasn't a mistake. They stole $314,000 from our city's treasury and without a mayor who enforces all of council's ordinances, we have no one in local government looking out for our interests or protecting the city's assets from this type of abuse.

I'm not supporting any gotdamned tax increases as long as this shit continues. I'll encourage the rest of you to do the same. This insanity must come to an end.