Taft seeks order to block BWC deposition

7/15/2005

COLUMBUS - Gov. Bob Taft asked the Ohio Supreme Court yesterday for a "protective order" to prevent a Democratic state senator from questioning him and Chief of Staff Jon Allison under oath about failed investments at the Bureau of Workers' Compensation.

Kathleen Trafford, a Columbus attorney hired by the attorney general's office to represent Mr. Taft, said the sole issue in the lawsuit filed by state Sen. Marc Dann, a Youngstown-area Democrat, is whether reports to the governor from his high-ranking aides are public records under Ohio law.

Saying the high court has pledged a "full and speedy" resolution of the lawsuit, Ms. Trafford wrote that Mr. Dann's plan to depose Mr. Taft and five other current and former high-ranking aides could set a "precedent for misusing public records complaints as inquisitory tools for personal or political purposes."

Mr. Dann, who also is an attorney, said that charge was "absurd." He said the records could provide more details about why up to $13 million is missing from the state's investment in rare-coin funds controlled by Tom Noe and why the state lost $215 million in just a few months in a high-risk hedge fund managed by Mark D. Lay of MDL Capital Management.

Fred Gittes, a Columbus attorney representing Mr. Dann, had scheduled depositions today for Mr. Taft and five others: chief of staff Jon Allison; former chief of staff Brian Hicks, now a lobbyist and consultant; James Conrad, former administrator of the Bureau of Workers' Compensation; former bureau official and Taft aide James Samuel, and Mark Nedved, the bureau's lobbyist.

But those depositions are on hold until the Supreme Court resolves the state's request for a "protective order," Mr. Gittes said.

Mr. Dann is asking the high court to order Mr. Taft to release correspondence dating to 1999 from Mr. Conrad and from Mr. Samuel, a former bureau official who in 2003 became the governor's liaison with the bureau.

Mr. Taft's chief legal counsel has said the records are exempt from the public records law because of executive privilege. Mr. Dann has said executive privilege does not exist in Ohio law.

Mr. Gittes said Mr. Taft must be deposed because only he can say how he "evaluates or uses" correspondence and weekly reports from high-ranking aides and whether he ever waives that privilege by discussing it outside the office with political advisers.

In her request for a "protective order," Ms. Trafford said the depositions would "invade the executive and deliberative process privileges of the governor."

Also yesterday, the attorney general's office filed a motion in U.S. district court to keep Ohio employers out of its lawsuit on behalf of the bureau against a failed Bermuda hedge fund.

Based on precedents dating to 1927, the motion argues that Ohio employers do not own the fund and have no legal interests in turning the state's case into a class-action lawsuit.

"I don't understand why the attorney general wouldn't want to have the people who are affected by this litigation at the table," said Jack Landskroner, a lawyer for Jacobson Excavation & Contracting, the Madison, Ohio, company attempting to participate in the case. "To try to preclude us concerns me because it eliminates any transparency."

Mr. Landskroner said the Ohio Supreme Court's recent decision to allow The Blade to view bureau records entitles Ohio employers to join in the lawsuit.

"The public has a vested interest in these dealings, and by that basis alone the employers have a vested interest in the case," he said.

Contact James Drew at:

jdrew@theblade.com

or 614-221-0496.