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Published: Thursday, 5/9/2013

Telb plans to appeal denial of legal fees

Ex-sheriff: Lucas Co. should repay my costs

BY JENNIFER FEEHAN
BLADE STAFF WRITER
CTY fugitive14p 10/13/10  The Blade/Dave Zapotosky Lucas County Sheriff James Telb talks about the arrests of domestic violence offenders during a news conference in Toledo, Wednesday, October 13, 2010. Members of the Northern Ohio Violent Fugitive Task Force made the arrests during a sweep on Tuesday.    October is Domestic Violence Awareness Month. CTY fugitive14p 10/13/10 The Blade/Dave Zapotosky Lucas County Sheriff James Telb talks about the arrests of domestic violence offenders during a news conference in Toledo, Wednesday, October 13, 2010. Members of the Northern Ohio Violent Fugitive Task Force made the arrests during a sweep on Tuesday. October is Domestic Violence Awareness Month.
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Former Lucas County Sheriff James Telb plans to appeal a ruling that says Lucas County commissioners are not responsible for paying the legal fees he incurred defending himself against federal criminal charges.

Mr. Telb, who was sheriff from 1985 to 2012, was acquitted in December, 2010, of charges related to the 2004 death of an inmate at the county jail. He sought reimbursement for some $200,000 in attorney fees stemming from the case and his nearly month-long trial in U.S. District Court — a claim Lucas County Common Pleas Judge Gene Zmuda denied in a recent opinion.

Richard Kerger, an attorney for Mr. Telb, said Wednesday that an appeal would be filed by Wednesday.

“We respect [Judge Zmuda’s] decision, but we believe there are some inconsistencies with regard to the role of the prosecutor,” he said.

In denying the former sheriff’s claim, Judge Zmuda noted that Mr. Telb initially contacted the Lucas County Prosecutor’s Office about defending him, but after he was told the prosecutor’s office would not defend him, the sheriff did not press the matter.

“At the very least, he could have written [the county commissioners] and/or the prosecuting attorney demanding action,” the judge wrote. “He could have filed a lawsuit seeking to compel action from the [county commissioners] to permit his hiring of private counsel at the county’s expense. He chose to do nothing other than secure private counsel to defend him in federal court.”

Gerald Kowalski, an attorney hired by commissioners to represent them, was pleased with the decision. “I think Judge Zmuda correctly applied the law to the facts of the case,” he said.

Judge Zmuda noted it was the duty of the prosecutor’s office — not the county commissioners — “to prosecute and defend all suits and actions where a county officer is a party,” yet the county prosecutor was not named as a defendant in Mr. Telb’s complaint.

After Mr. Telb’s acquittal on the charges in December, 2010, he sent a letter to county commissioners asking to be reimbursed for his legal fees. Getting no response, he filed suit against the board in Common Pleas Court in May, 2011, alleging it would be a financial hardship for him to pay the bill and contending it would make it difficult for the county to recruit and retain employees if the board did not pay to defend him as a public officer.

Commissioners countered that Ohio law prohibits the reimbursement for a county officer’s private attorney fees after the case has concluded, that the county had no statutory duty to provide legal counsel for the sheriff, and that “the federal charges against [Mr. Telb] of lying and covering up others’ crimes could not be considered a case arising from a good-faith attempt to perform” his official duties.

Both the former sheriff and Internal Affairs Capt. Robert McBroom were acquitted of charges they covered up the inmate’s death and lied to federal investigators about it, while John Gray, a retired sergeant, was convicted of violating civil rights for leaving the inmate in a cell without seeking medical attention and two counts of writing false reports about the incident. He was sentenced to three years in prison.

Jay Schmeltz, a retired deputy, was found guilty of writing a false report about the incident and was sentenced to one year in prison.

Contact Jennifer Feehan at:jfeehan@theblade.com or 419-213-2134.



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