From ERIC J BREWER:
(See original post at FB https://www.facebook.com/eric.j.brewer.9 [1])
Dan Gilbert, Kevin Kelley and Frank Jackson ain't getting away with this $88 million bullshit.
Today I filed an Affidavit to cause Cleveland City Council President Kevin Kelley to be arrested and prosecuted for dereliction of duty, obstruction of official business and personating a law enforcement officer. I'm in the picture being sworn in by a deputy clerk employed by Cleveland Clerk of Court Earl B. Turner on the 3rd floor of the Justice Center. The clerk's office called Judge Ron Adrine of Cleveland's municipal court. Employees under Judge Adrine's supervision assigned the complaint a number, 2017 – GAO15. This is the same type of complaint filed by the Cleveland 8 on behalf of Tamir Rice. Mine is just more extensive. Here's a link to a time and date stamped copy. http://www.pdf.investintech.com/…/f9a41ef6-2ba1-…/index.html [2]
The basis of my complaint is simple. Council presidents don't negotiate, enter and sign contracts on behalf of municipal corporations under Ohio law. That's the job of the mayor and director of law, and I don't give a good gotdamned if Frank Jackson says this bullshit is okay and signed off on it. It's not. If Kelley wanted to negotiate council's copier contract and get a community benefits agreement from the vendor more power to him. Y'all would have seen Kelley's dumb ass on the news in handcuffs if he did that bullshit to me like he did Jackson. The mayor negotiates with Dan Gilbert, the Cavaliers, Gateway Economic Development Corporation and Armond Budish. The director of law prepares the documents. Not a councilman.
The bottom line is even if Frank is okay with Kelley's duty-exceeding contract negotiation, it's against the law and he's weak for allowing it. Look folk. Mayors are not supposed to be treated like "tricks." Section 71 of the charter. Chief law enforcement officer. #1 badass. That's the job. Think Samuel L. Jackson in Pulp Fiction.
There are three separate branches of government under Ohio's constitution. The state's general laws separate the duties between the branches of government and so do Cleveland's charter and ordinances. This lunacy shows just how out-of-control these non-reading IEP assholes are who lead our city. It also shows the criminal minds of Gilbert and Budish for even accepting it.
Everyone who knew what I'm now sharing knows there is no question the mayor is the contract negotiating authority for the municipal corporation along with his director of law. Fred Nance has represented Cleveland. I supplied him with a libel statute that would have helped Mayor Mike White when I worked for him as a special assistant. I know he knows Cleveland's charter and ordinances and I won't accept any other perspective on it. I attended an “orientation” meeting of the Cuyahoga County Mayors & Managers Association in 2005 for new mayors and Squires' downtown offices with other mayors. At the end of the session the “instructor” offered the law firm's municipal services. Fred knows Kelley didn't have any gotdamned authority to negotiate an agreement on behalf of the city. He should be ashamed of himself for taking advantage of his city.
I'm not an attorney, just a former mayor. There are other acts that need to be taken to void Ord. No. 305-17 and Ord. No. 469-17 council enacted because of required duties Kelley, Jackson and the council majority failed to follow. There's a concept in law called “ultra vires.” It means in Latin, “beyond the powers.” The phrase “intra vires” means “within the powers.” Kelley was warned in Cleveland Ord. No. 612.15(e) not to go beyond the powers or “exceed the duties” of the public office. He fucked up. Big time. Jackson as you'll read in my complaint has already confirmed it.
Both ordinances are voided automatically because of the illegal acts. Any monies spent based on Kelley's two unlawfully negotiated ordinances are not the responsibility of Cleveland taxpayers. Save the litigation. Illegal acts committed by elected officials don't count. Besides that, this bullshit is going federal. I've already had the conversation.
Corporate Cleveland. Dan. It's better to deal with honest elected officials. Leave the deal-making scumbags alone. They get your named dragged through the mud and bring you into a whole lot of controversial shit you just don't want in your life. There are a multitude of mutually-beneficial ways for people who share a political corporation to achieve constructive goals. This isn't how it's done.
Below is what I wrote in the content of the complaint.
Now comes, Eric Jonathan Brewer, and after being duly-sworn according to law, deposes and states that he is of full legal age, has personal knowledge of all matters stated herein, and is otherwise competent to testify to the matters set forth below.
Further, Affiant states the following:
1. My name is Eric Jonathan Brewer.
2. I am a resident of Cleveland, Ohio in Cuyahoga County and have been for more than six months prior to this Affidavit.
3. I am the former Mayor of the City of East Cleveland, a former Special Assistant to the Mayor of Cleveland, former Chief of Staff to the Mayor of East Cleveland; and a veteran journalist with extensive knowledge of Cleveland municipal government and its officials that dates back to 1979.
4. I have had the opportunity to review events leading up to the enactment of Ord. No. 305-17 and Ord. No. 469-17 on April 24, 2017, and to compare the acts of Council's president to Cleveland's charter, ordinances and general laws governing municipal corporations. Both are the ordinances Kevin Kelley led Cleveland city council to deliberate and vote on that awarded $88 million to support funding the renovation of The Q sports arena.
5. Kevin Kelley at all relevant times during the acts that are the subject of this Affidavit served in the official capacity as President of Cleveland City Council and was administered oaths to perform the duties of a single legislative officer of the municipal corporation.
6. On April 24, 2017 Kelley, in his capacity as President of Council, scheduled and presided over a 3:00 p.m. news conference and delivered an announcement on the front steps of 601 Lakeside Avenue that weekend negotiations had resulted in “community benefits agreement.” The “agreement” purported to support Kelley's intent to deliver an $88 million “deal” that favored Cuyahoga County Executive Armond Budish and Cavaliers owner Dan Gilbert's desire to obtain funds from the City of Cleveland to renovate The Q Arena.
7. The attached Cleveland Scene news story written by Sam Allard, and dated April 25, 2017, confirmed that Kelley, a member of the City of Cleveland's legislative branch of government, performed “administrative” contract negotiation and preparation duties Ohio law and Cleveland's charter reserved for the mayor and director of law. Specifically, Allard wrote the following: “According to Frank Jackson, it was Kelley himself who worked this weekend to negotiate these additional community benefits.”
8. Allard obtained the information for his news story from a video recording Mayor Frank Jackson uploaded to the city's website on Tuesday, April 25th. At 10 minutes and 33 seconds into the recording, Jackson spoke the following words to describe Res. No. 469-17: “This second piece is one that I have to give the council president a lot of credit for. He worked this arrangement along with many others. But primarily him. And this gives us the best community benefits that I've ever witnessed in my life as a public official since 1990.”
9. Four hours after Kelley's news conference, and at the 7:00 p.m. regular meeting of Cleveland city council, he presided over a vote to ratify the duty exceeding “community benefits” agreement he secretly negotiated on behalf of the municipal corporation, and in criminal violation of general state laws and ordinances that did not authorize a member of the legislative branch of government to perform the “administrative” duties of the Mayor and Director of Law.
10. Ord. No. 469-17 was not placed on the agenda and the public was given no advance notice of its existence pursuant to Cleveland's Charter and Ohio's open meetings laws. Neither were members of the city's legislative authority who learned of Kelley's legislation at 7 p.m.. It was not read three separate times as required by the Ordinance Enactment procedure identified in the city's Charter. It did not meet the definition of an “emergency” as prescribed by the Charter.
11. Kelley then presided over a voiced “yea or nay” vote on Ord. No. 469-17 and enacted it as an emergency with some of the following language: “Section 1. That the President of Council is authorized to accept commitments memorialized in this legislation and in Supplemental Agreement No. 1 to the Cooperative Agreement between the City of Cleveland and the County of Cuyahoga and the Cavaliers Operating Company LLC relating to the 2017 Quicken Loans Arena Project, which commitments include the following:
12. Kelley then followed with a vote to enact Ord. No. 305-17, which was referenced in Ord. No. 469-17.
13. To enact Ord. No. 305-17, Kelley chose not to preside over a voiced “yea or nay” vote Chapter 5, Section 30 of Cleveland's charter requires. Ord. No. 305-17 was enacted under the “assumption” that the council members who'd voted on April 7, 2017 would vote the same way. There was no roll-called “yea or nay” vote on Ord. No. 305-17.
14. During the regular council meeting on April 24, Assistant Director of Law Richard F. Horvath informed members of council that the Department of Law was not involved in Kelley's“community benefits” negotiations. Horvath is the city's chief corporate counsel.
15. Kelley is not an attorney licensed to practice law in Ohio nor is the President of Council authorized under any general law, Cleveland's charter local ordinance to perform legal duties on behalf of the municipal corporation.
16. The net effect of Horvath's public statement was that Kelley and other unnamed legislative officials had exceeded the authority of the public offices they hold and usurped the administrative authority of Mayor and the Director of Law to negotiate and prepare contracts on behalf of the municipal corporation under Ohio law and Cleveland's Charter.
17. Kelley is a member of Cleveland city council who was elected by a majority of the members of the legislative authority to perform the duties of the President of the Council pursuant to Chapter 5, Section 30 of Cleveland's charter. The duties prescribed to the President of Council were for Kelley to “preside at meetings of the Council and perform such duties as presiding officer as may be imposed upon him by the Council.”
18. In his official capacity as Council President, Kelley knew or should have known that Chapter 5, Section 26 of Cleveland's charter imposed the following limitations on his conduct as a member of the legislative branch of government. “No member of the Council shall, except in so far as is necessary in the performance of the duties of his office, directly or indirectly interfere in the conduct of the administrative department ...”
19. In his official capacity as Council President Kelley knew or should have known that R.C. 731.05, an unsuspended general law of the State of Ohio, instructed him not to perform any administrative duties of the municipal government that were reserved to the office of Mayor and Director of Law. “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 [7] of the Revised Code.
20. Kelley further knew or should have known that in addition to R.C. 731.05's instructions above, he was also guided by the following words in the statute: “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.”
21. Kelley knew or should have known that Chapter 5, Section 36 of Cleveland's Charter did not authorize the President of Council to preside over a meeting where emergency legislation was being introduced in violation of it. “... no measure making a grant, renewal or extension of a franchise or other special privilege, or regulating the rate to be charged for its services by any public utility, shall ever be so passed.”
22. Kelley knew or should have known that pursuant to Chapter 11, Section 70 of Cleveland's charter, “The executive and administrative powers of the City shall be vested in the Mayor, directors of departments and other administrative offices provided for in this Charter or by ordinance.”
23. Kelley particularly knew Chapter 11, Section 71 of Cleveland's charter spelled out in no uncertain terms that there can only be one duly-authorized mayor in charge of the city's administrative affairs, and that the section of the charter affirming this mayoral duty had remained 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; to recommend to the Council for adoption such measures as he may deem necessary or expedient; to keep the Council advised of the financial condition and future needs of the City; to prepare and submit to the Council such reports as may be required by that body, and to exercise such powers and perform such duties as are conferred or required by this Charter or by the laws of the State.”
24. Kelley knew pursuant to Chapter 15, Section 83 of Cleveland's Charter, under the heading Director of Law, that voters on November 9, 1931 enacted the unchanged duties of the official. “The Director of Law shall be an attorney at law admitted to practice in the State of Ohio. He shall be the legal adviser of and attorney and counsel for the City, and for all officers and departments thereof in matters relating to their official duties. He shall prosecute or defend all suits for and in behalf of the City, and shall prepare all contracts, bonds and other instruments in writing in which the City is concerned and shall endorse on each his approval of the form and correctness thereof. No such bond, contract or instrument shall become effective without such endorsement by the Director of Law thereon.”
25. The “official” duties of the President of Council as a single member of a 17-member legislative authority did not grant Kelley any legal authority whatsoever to negotiate and prepare a legal document he created and captioned a “community benefits agreement” or any other agreement that binds the municipal corporation of Cleveland.
26. More specifically, upon examination of the City Record for 2016 and 2017, there is no record of legislation council enacted authorizing the Mayor or Director of Law to negotiate or prepare a contract with the officials of Cuyahoga County, the Gateway Economic Development Corporation or the Cavaliers to deliver them $88 million in public funds to renovate The Q.
27. Absent any authorizing legislation prior to Kelley's secret weekend negotiations, no municipal official was granted any advance authority to otherwise engage or negotiate Q renovation or community benefits agreements with county and corporate officials.
28. The evidence and facts support the Affiant's R.C. 2935.09 claim that Kelley acted in excess of the duties granted to Presidents of Council under Cleveland's Charter and Ohio law when he personally negotiated a legal matter on the City of Cleveland's behalf, and that in so doing he obstructed the official business of the City of Cleveland by personating to others that he was the duly-authorized law enforcement officer of the municipal corporation with the authority to perform administrative duties granted to the Mayor and Director of law.
29. Affiant requests this Honorable Court to cause Kelley's arrest and prosecution pursuant to R.C. 2935.10, and for the offenses identified herein.
Links:
[1] https://www.facebook.com/eric.j.brewer.9
[2] https://l.facebook.com/l.php?u=http%3A%2F%2Fwww.pdf.investintech.com%2Fpreview%2Ff9a41ef6-2ba1-11e7-922a-002590d31986%2Findex.html&h=ATPTdosPvohC2h0rEEL2-kUK_76e5TgArs5HzAtKMmgxHHVms_FnuK7tHMAga-RqmG6XG6mmKGzyonERryhj0GprEnqHUHs78PpmryzF3vNzv-7gtqrdNqs_5PHwi8vf3k6_JOkGPNnC8XMYNA_WZQktjxdh&enc=AZMpKPYf6ir11L0ayNHinA433Gt-3qyQ46w-BuE28N3Kem3eQ6BsQor7MZ7x6L3pt_Rxcjrp5j1O1QbvIAlAEty5Z7zE0C_wTb7NpOkZoVv0d3Co6oBbdYK06qiwFijYFWFHmxcbwGzPghVe4_4f29W7eQeU-qclAS9bgpHfPyOEBKO670nc7ewDSCfgTMk586I&s=1